Muro v. Houston Fire & Cas. Ins. Co., 13259

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: POPE; W. O. MURRAY
• Citation: 310 S.W.2d 420
• Parties: Solomon A. MURO, Appellant, v. HOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
• Docket Number: No. 13259,13259
• Decision Date: 05 February 1958

Page 420

310 S.W.2d 420

Solomon A. MURO, Appellant, v. HOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Appellee.

No. 13259.

Court of Civil Appeals of Texas, San Antonio.

Feb. 5, 1958.

Rehearing Denied March 5, 1958.

Putman, Putman, Strong, Reid, Murray & Taylor, San Antonio, for appellant.

Carl Wright Johnson, Edward P. Fahey, San Antonio, for appellee.

POPE, Justice.

This is a Workman's Compensation case and Solomon Muro, the injured employee, has appealed from a judgment upon the verdict. Employee's judgment against Houston Fire and Casualty Insurance Company, insurer, was for the sum of $3,125. The appeal concerns the manner of computing compensation when there is a fact finding of one injury which is specific under Section 12, Article 8306, Vernon's Ann.Civ.Stats., and a fact finding of another separate injury which is general under Section 11, Article 8306. Employee also seeks a reversal on the grounds that there is no evidence to support the wage rate found by the jury; and because the court excluded evidence explaining that the employee continued to work under the whip of necessity.

Employee, while working for Mosel-Terrell Plumbing Company, sustained two concurrent but distinct injuries. He sustained a general injury to his back; and also sustained a different injury to his left foot. The jury found that the general injury resulted in thirty percent incapacity for 150 weeks, and that the specific injury resulted in a permanent loss of the use of employee's left foot. Section 12, Art. 8306, provides that such a loss of use is equivalent to the loss of that member. For that specific injury, employee was entitled to compensation for 125 weeks. The trial court rendered judgment for the employee for the specific injury for 125 weeks at the maximum rate of $25 per week, but denied compensation for the general injury. Employee by this appeal makes the point that he was entitled to an additional 25 weeks of compensation, since the general injury ran for 150 weeks, while the specific injury ran for only 125 weeks.

Since the employee sued upon two different injuries, and since the wage rate is pertinent to the ultimate judgment, we shall first discuss employee's point concerning the wage rate. Employee urges that the cause should be reversed because the jury found that he had worked substantially the whole of the year immediately before the injury, and there is no evidence to support that finding. Since the jury failed to answer the other wage rate issues, employee says there is no basis for fixing the wage rate. After the verdict was returned, defendant then admitted that employee was entitled to receive the maximum compensation rate of $25 either for the general injury or the specific injury, but moved the court to grant only one or the other recovery. The court in its judgment restricted employee to the bounds of his pleadings, wherein the employee pleaded that he earned $75 each week. Taking the limits of the pleading, and the admission of the defendant, the court then proceeded to compute the damages for each of the injuries. 30% X 60% X $75 X 150 weeks amounted to $3,025 for the general injury. 60% X $75 amounted to $45, and since the maximum permitted is $25, that sum multiplied by 125 amounts to $3,125 for the specific injury. The trial court gave judgment for the specific injury which was the larger sum.

Employee does not complain that the court erred in limiting the admission to the maximum wage rate which he had pleaded. That point is not in the case. Employee complains that he was entitled to a jury verdict, even though the court computed the compensation upon the maximum amount employee pleaded. An employee who receives under the judgment the maximum amount which he has sought under his pleadings is not harmed.

Employee also urges that he should have had judgment for the specific injury for the 125 weeks, with an additional judgment tacked to the end of the specific injury for the additional 25 weeks of the general injury. This would be an additional 30% X 60% X $75 X 25 weeks, or $337.50. We have found no precedent precisely in point. This is not the case of a specific injury which also is a general injury. It is not the case of two concurrent specific injuries, which situation is expressly covered by the third paragraph from the end of Sec. 12, Article 8306. We have here two concurrent injuries, one a general injury and the other a specific injury. May an employee recover for a total permanent specific injury, and also for a general injury to the extent that the general injury extends longer than the total permanent specific injuryx

The Commission of Appeals in Texas Employers' Ins. Ass'n v. Moreno, 277 S.W. 84, 88, discusses the legislative history and purpose of Sections 10, 11 and 12, Article 8306. Sections 10 and 11 relate to general injuries, and Section 12 relates to specific injuries. The Court then discusses the three troublesome paragraphs at the end of the schedule in Section 12. The first of these three paragraphs, no doubt, includes such situations as this one, where there is a general injury and a separate but concurrent specific injury. The paragraph states that the employee 'shall receive compensation only for the injury which produces the longest period of incapacity * * *.' The Moreno case discusses this paragraph and by dicta says: 'Under this clause, if a person lost an arm in an accident, and was at the same time otherwise injured, but in a manner not scheduled in section 12, he could forego his compensation under section 12 for the loss of his arm and claim under other sections. * * * The law very wisely permits him to take under the clause which gives him the most compensation. Section 12 merely provided that a man could not recover for specific injuries therein enumerated and also under other sections of the law.'

The Moreno case then discusses the second paragraph at the end of Section 12, which paragraph speaks of the 'permanent partial incapacity.' The Court states that the second paragraph applies to cases of permanent total loss of use of the member. The Court then says that the second paragraph states that the scheduled compensation shall be 'in lieu of all other compensation in such cases.' The Court, after carefully analyzing the statute, concludes, as we understand it, that up to the last paragraph of Section 12, the statute speaks only of the permanent and total loss or loss of use of...