Patterson v. Texas Employers' Ins. Ass'n

• Decision Date: 04 May 1945
• Docket Number: No. 13618.,13618.
• Citation: 188 S.W.2d 778
• Parties: PATTERSON v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

188 S.W.2d 778

PATTERSON v. TEXAS EMPLOYERS' INS. ASS'N.

No. 13618.

Court of Civil Appeals of Texas. Dallas.

May 4, 1945.

Rehearing Denied June 15, 1945.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Suit under the Workmen's Compensation Act by Gerald Patterson to set aside an award of the Industrial Accident Board in a proceeding whereby plaintiff, an employee of Texas Farm & Ranch Publishing Company, and another sought to recover compensation from Texas Employers' Insurance Association, the insurance carrier, for alleged permanent loss of use of left arm, hand, fingers and thumb. The district court granted plaintiff's motion for judgment but limited recovery to compensation for injuries to one-third of three fingers of his left hand, and plaintiff appeals.

Reversed and remanded.

White & Yarborough, of Dallas, for appellant.

Burford, Ryburn, Hincks & Charlton and Howard Jensen, all of Dallas, for appellee.

LOONEY, Justice.

This is a compensation case. Gerald Patterson was an employe of Texas Farm & Ranch Publishing Company and Holland Magazine Company. Texas Employers' Insurance Association, the insurance carrier, was sued by Patterson to recover compensation for injuries received in course of said employment. He alleged that, while operating a metal shaver having a roller of 200 pounds pressure, his left hand was caught in the shaver, was wounded and injured, also the fingers and thumb of the hand, and his left arm; described in detail and at length the injuries, alleging that they resulted in permanent loss of the use of these members, that is, his left arm, hand, fingers and thumb.

The court submitted to the jury issues 1 to 21, inclusive, as to whether appellant sustained total loss of use of the first three fingers of his left hand for any length of time, whether permanent or temporary, and if temporary, the number of weeks he suffered total loss of use of said fingers; also, in a group of issues, the jury was asked to find whether appellant sustained partial loss of the use of the three fingers for any length of time, whether permanent or temporary, and if temporary, the number of weeks he suffered such partial loss; also the percentage, if any, of the partial loss. Following these issues, the court submitted special issue No. 22 reading: "Do you find from a preponderance of the evidence that the result of the injury of April 15, 1943, was limited to the fingers of plaintiff's left hand below the knuckles?"; and following this the court charged: "If you have answered special issue No. 22 `Yes' then you will not answer special issues numbered 23 to 29, both inclusive; otherwise, you will answer them." Special issue 23, submitted conditionally as just stated, reads: "Do you find from a preponderance of the evidence that plaintiff, Gerald Patterson, sustained the total loss of the use of his left hand for any length of time as a result of the injuries sustained by him while employed by Texas Farm & Ranch Publishing Company and Holland Magazine Company?"; if answered "Yes", to answer whether such total loss was permanent or temporary, and if temporary, the number of weeks Patterson suffered total loss of the use of his left hand; and in issue No. 26 the jury was required to answer whether he sustained partial loss of the use of his left hand, and if answered "Yes", whether such partial loss was permanent or temporary; and if temporary, to state the percentage of partial loss. Following issues 23 to 29, inclusive, conditionally submitted, the court submitted issue No. 30 requiring the jury to find from a preponderance of the evidence the average weekly wage of Patterson on April 15, 1943; concluding the charge with issue No. 31, as follows: "Do you find from a preponderance of the evidence that the result of the injury of April 15, 1943, was limited to the fingers of the plaintiff's left hand below the first two joints thereof?"

In response to the issues affirmatively submitted, the jury found that appellant sustained total loss of use of the first, second and third fingers of his left hand for 12 weeks; also 50% partial loss of the use of same for 26 weeks; and, having answered special issue No. 22 "Yes", that is, that the result of plaintiff's injury was limited to the fingers of his left hand below the knuckles, did not answer special issues 23-29, inclusive, conditionally submitted, but...