Petroleum Casualty Co. v. Seale

• Decision Date: 13 February 1929
• Docket Number: (No. 1000-5170.)
• Parties: PETROLEUM CASUALTY CO. v. SEALE et al.
• Court: Texas Supreme Court

13 S.W.2d 364

PETROLEUM CASUALTY CO. v. SEALE et al.

(No. 1000-5170.)

Commission of Appeals of Texas, Section B.

February 13, 1929.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by the Petroleum Casualty Company, insurer, to set aside an award of compensation under the Workmen's Compensation Act to A. Seale, an employee of the Humble Company. A judgment denying such relief was reformed and affirmed as reformed by the Court of Civil Appeals , and plaintiff brings error. Reversed and remanded.

Conrad J. Landram, K. W. Gilmore, John C. Townes, Jr., and R. E. Seagler, all of Houston, for plaintiff in error.

Geo. G. & M. E. Clough, of Houston, for defendants in error.

LEDDY, J.

Defendant in error, Seale, who was an employee of the Humble Company, sustained an injury in the course of his employment and was awarded a judgment against the appellant insurer under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309) for 60 per cent. of his average weekly wages for 300 weeks.

The injury for which claimant was awarded compensation was described by him in his petition as follows:

"2. That on and about the 24th day of February, 1926, the plaintiff received an injury during the course of his employment in Harris County, Texas, that an I beam fell on his right foot, breaking four bones, and dislocating his toes, and seriously and permanently injuring him. That at the time of receiving said injury he was earning the sum of $4.00 per day, whereby he was entitled to have and receive of and from the defendant herein compensation at the rate of $13.85 per week during such time as he shall be incapacitated from labor. * * *

"6. Plaintiff would show to the court that as a result of the injury which he so received, he is permanently injured; that he is a laborer, dependent upon his feet in laboring; that his employment requires the use of two good and sound feet, without which he cannot obtain and retain employment as a laborer. That the bones of his feet were broken and have not properly healed or united, nor have his toes resumed a normal position, and he is advised and believes that his said injuries are permanent, and if so he is entitled to have and receive compensation for 401 weeks after the date of injury at the rate of $13.85 per week, or to wit: $5540.00, less 8 payments $110.80, or a balance of $5429.20. * * *"

The trial court refused to submit plaintiff in error's theory to the jury, which was that, under the allegations of the petition, the only injury alleged was one to a specific member of the body, and that the jury should have determined the extent and duration of the specific injury thus alleged. The finding upon which the judgment is predicated was the jury's answer to special issues that appellee suffered 85 per cent. permanent incapacity to labor.

We do not think the trial court submitted the issue made by the pleadings in this case. Most favorably construed, defendant in error's petition alleged only an injury to the foot. Having set out no other injury, the allegation that his injuries were permanent is referable to the specific injury alleged. If no mention had been made of the particular injury, the general allegation that he was permanently injured would have been sufficient in the absence of a special exception. International & G. N. R. Co. v. Beasley, 9 Tex. Civ. App. 569, 29 S. W. 1121; Southern Pacific Co. v. Martin, 98 Tex. 322, 83 S. W. 675.

Under the pleadings, the court should have submitted separately the issues as to the duration and extent of defendant in error's injury to the specific member alleged, and also directed the jury to determine the percentage of incapacity sustained by reason of the injury to the foot, and in entering judgment should have awarded compensation under section 12 of the Workmen's Compensation Act (Rev. St. 1925, art. 8306, § 12).

Under the pleadings, defendant in error was entitled to be compensated for a permanent partial incapacity to his foot. If the issue thus made by the pleadings had been properly submitted to the jury and a finding returned that the injury was partial and permanent, and the percentage of incapacity had been found, defendant in error would have been entitled to have received a sum equal to the percentage so found, multiplied by 60 per cent. of his average weekly wages for a period of 125 weeks.

Under the terms of the Workmen's Compensation Act, defendant in error cannot, by alleging incapacity to labor on account of injuries received to his foot, be entitled to receive a greater compensation than the percentage of his incapacity bears to the amount he would have been permitted to recover if he had sustained a complete loss of his foot. Any other construction of the act would permit an employee to recover more for the partial loss of the use of a member of his body than he could recover for...