Martin v. Texas Emp. Ins. Ass'n
| Decision Date | 05 October 1960 |
| Docket Number | No. 5412,5412 |
| Citation | 339 S.W.2d 413 |
| Parties | Ernest MARTIN, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee. |
| Court | Texas Court of Appeals |
Guinn & Guinn, Joe A. Morgan, El Paso, for appellant.
Edwards, Belk, Hunter & Kerr, El Paso, for appellee.
The appellant, who was plaintiff below, brought suit against appellee under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., for injuries received in April, 1956, while working for Furr's Inc. The case was tried to a jury, which found that appellant had suffered fifty per cent partial disability, which was permanent. His injury was diagnosed by the treating doctors as a herniated disc of the spine. The parties stipulated that appellant's average weekly wage prior to the accident was $75 a week. The jury found, in answer to the eighth special issue, that appellant's average weekly wage earning capacity after his injury and during his incapacity, was $75. The trial judge granted appellee's motion for judgment on the verdict, holding thereby that appellant could recover nothing. Appellee filed a cross assignment of error, charging the court with error in not granting its motion for judgment non obstance veredicto, on the ground that plaintiff had not filed his claim with the Industrial Accident Board within the statutory six months' period, such claim having been filed a little over nine months after the date of his injury. Appellee charges that plaintiff did not allege and prove good cause for not having filed his claim with the Board within the six months.
Appellant charges the court with error in submitting Issue No. 8, and in failing to grant a new trial.
It is obvious that the dispute here is over the use of the word 'disability', and the phrase 'wage earning capacity.' The jury found, as stated above, that the appellant had suffered an injury while in the course of his employment, which resulted in partial disability that was permanent in nature and fifty per cent in extent. After all of these seven issues had been submitted to the jury and answered, and it had been stipulated that his prior weekly wage was $75 per week, Issue No. 8 occurs, and was worded as follows:
'From a preponderance of the evidence what do you find to be the average weekly wage earning capacity of Plaintiff Ernest Martin after his injury and during his partial incapacity, if any?'
The jury answered, '$75.00', which was the amount stipulated as having been his average weekly wage before injury.
It appears to us that the many authorities examined seem to have held, and to hold, that the words 'disability' or 'partial disability', and 'incapacity' or 'partial incapacity' are interchangeable and substantially synonymous. It has been held that a trial court may submit in issue inquiring as to the claimant's percentage of partial disability as the result of the injury, rather than inquiring as to his percentage of wage-earning capacity after the injury. Consolidated Casualty Ins. Co. v. Newman, Tex.Civ.App., 300 S.W.2d 160 (n. r. e.).
For further example, in Texas Employers Ins. Ass'n v. Goforth, Tex.Civ.App., 307 S.W.2d 610, 613, (n. r. e.), the court stated:
'Numerous cases are authority for the proposition that a trial court will not be held in error for inquiring of the jury concerning the claimant's percentage of partial disability as a result of injury rather than to inquire about the extent of the reduction of his wage earning capacity after the injury.'
The court then cites a number of cases in support of this statement. See, also, Indemnity Insurance Co. of North America v. Marshall, Tex.Civ.App., 308 S.W.2d 174 (n.r.e.), point 8.
In Traders & General Ins. Co. v. Robinson, Tex.Civ.App., 222 S.W.2d 266, 269, (writ refused) (emphasis ours), the court said:
'The finding by the jury that appellee suffered 85 per cent disability, together with a stipulation of his earnings of $70.40 per week furnished a sufficient basis for computing his average weekly wage earning capacity during the existence of such partial incapacity.'
The court then cites cases in support of its position.
It is clear, therefore, from these authorities--all of which have cleared through the Supreme Court--that it is proper to determine the percentage of disability, and that it is not error to refuse to submit an issue inquiring as to the wage-earning capacity of claimant after injury. Therefore, in the case before us, the first seven issues were adequate and...
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Texas Employers' Insurance Association v. Martin
...was granted by the trial court. The Court of Civil Appeals reversed and remanded with instructions to render judgment for respondent. 339 S.W.2d 413. Petitioner contends that the appeal bond was not filed within thirty days after the overruling of respondent's motion for new trial as requir......