Southern Underwriters v. Schoolcraft
Decision Date | 21 March 1940 |
Docket Number | No. 3911.,3911. |
Citation | 139 S.W.2d 330 |
Parties | SOUTHERN UNDERWRITERS v. SCHOOLCRAFT et al. |
Court | Texas Court of Appeals |
Simpson, Dorenfield & Fullingim, of Amarillo, and Benbow, Saunders & Holliday, of Dallas (E. A. Simpson, of Amarillo, of counsel), for plaintiff in error.
Joseph E. Childers, of Abilene, and McBroom & Clayton, of El Paso, for defendants in error.
This is a compensation case under the Workmen's Compensation Law of this State.
The Southern Underwriters, plaintiff in error, the insurance carrier, brought this suit as plaintiff against J. A. Schoolcraft, as defendant, to set aside the award to Schoolcraft of the Industrial Accident Board.
On March 17, 1937, J. A. Schoolcraft was an employee of Southern Fuel & Transfer Company in El Paso County, Texas, a subscriber to the Employers' Liability Act, as that term is used in our compensation statutes, which Company held a compensation insurance policy covering the employees of J. C. Hudson, doing business as the Southern Fuel & Transfer Company, issued by plaintiff in error Southern Underwriters. On December 17, 1937, J. A. Schoolcraft, while in the course of said employment, and arising out of and originating in the work of his employer, sustained accidental injuries to the physical structure of his body. Schoolcraft was employed as a steel worker, and at the time of his injuries he was engaged in the line of structural steek work for his employer, and while in the act of taking a steel truss from the building where he was at work he accidentally slipped and fell from a height of some sixteen to twenty feet, landing on a cement platform and beams, striking with his back and side against said platform and beams, a lengthy steel rod fell across him, and in his fall Schoolcraft sustained injuries. The injuries described in Schoolcraft's cross action are: a broken pelvis on the right side; a broken right forearm and wrist; a dislocated right kidney; torn ligaments and bruises to his right hip; a fracture of the neck of the right femur or thigh-bone; injury to his right sacroiliac and lumbrosacral region, that is, his lower back and groins, with resulting arthritis.
Schoolcraft alleged and tendered evidence as to the effect of his injuries, such as his confinement in hospitals, treatment by physicians, and his confinement in a cast; a slight shortening of the right leg due to the fracture of his hip; stiffening of his right wrist; loss of his ability to perform any kind or degree of manual labor.
He alleged that his injuries suffered in said accident are of a permanent nature and have produced and will continue to produce total and permanent disability.
He pleads in the alternative that he has been totally incapacitated since the time of said accident and will be so incapacitated for two years in the future, and will thereafter be permanently partially incapacitated from performing manual labor or pursuing his line of work, and that his earning capacity will be permanently impaired and diminished to the extent of the per cent stated.
Schoolcraft had not worked in the employment in which he was working at the time he was injured, neither for his named employer nor for any other employer, for the whole of the year immediately preceding his said injuries. At the time of his said injuries he was earning wages at the rate of $150 per month, his weekly wages being $34.62; other employees at neighboring places had been earning in excess of $150 per month, their weekly wages paid them being $34.62 or more during the whole of the year next preceding December 17, 1937.
Schoolcraft, under the facts stated, pleaded in the alternative the application of subdivisions one, two and three, section 1, of Article 8309 of the Revised Civil Statutes. Schoolcraft also asked that the compensation be paid him in a lump sum, and that he had assigned to his attorneys, naming them, one-third of all compensation recovered in full payment of their services. He prayed for judgment on his cross action, with interest as pleaded, less the compensation already paid him as stated.
Defendant in the cross action, the Southern Underwriters, answered by general denial, special denials, general demurrer and special exceptions.
The case was tried with a jury and submitted upon special issues.
At the conclusion of the trial the Southern Underwriters filed its motion for an instructed verdict which the court overruled. The court rendered judgment on the verdict of the jury, except as to the jury's answer to question No. 21 only, based upon weekly compensation, on which issue judgment was rendered on Schoolcraft's motion for judgment non obstante veredicto, thereby fixing the weekly compensation at $17.31 instead of $20 found by the jury. The court overruled the Southern Underwriters' motion for a new trial, and the case is before us for review on writ of error.
Opinion.The trial court in the charge defined "partial incapacity" as follows: "That the term `partial incapacity' as used herein has the following meaning: It shall mean where an employee by reason of injury sustained in the course of his employment is only able to perform part of the usual tasks of a workman, but, nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depression or reduction in his earning capacity."
Southern Underwriters excepted to the above definition, and in the brief states its several exceptions, which we omit, but do state the substance of its contention.
Plaintiff in error's contention is, as we view it, that the definition of partial incapacity as given, by the expression, "whereby he suffers a depression or reduction in his earning capacity," makes Schoolcraft's incapacity to turn upon the question of whether he suffered a loss of earning capacity or a loss of wages, while the underlying purpose of the Workmen's Compensation Law is to compensate an injured workman for either a total or partial loss of capacity to work and labor, and not for a loss of earning capacity or loss of wages.
Plaintiff in error refers to Republic Underwriters v. Brown, Tex.Civ.App., 117 S.W.2d 157, 158, in which case the definition of partial incapacity embraced the expression that the injury to the employee "so incapacitat[ed] him that he is not able to perform the tasks of his regular employment, but is able to secure and retain employment reasonably suited to his incapacity and physical condition at wages less than what was paid him before his injury."
Also, in United States Fidelity & Guaranty Co. v. Baker, Tex.Civ.App., 65 S.W.2d 344, a somewhat similar definition of partial incapacity was given, and in each case the Court of Civil Appeals held the definition imposed upon the insurance carrier a greater burden than the law required or the insurance contract calls for, and reversed the case.
We will not, in the interest of brevity, review the cases. The Courts of Civil Appeals, it appears, have not been altogether harmonious as to a proper definition of partial incapacity.
In the instant case the trial court's definition of partial incapacity is the same as that found in Traders & General Insurance Co. v. Wright, Tex.Civ.App., 95 S. W.2d 753, decided by a divided court, which case was approved by the Commission of Appeals, and adopted by the Supreme Court in 132 Tex. 172, 123 S.W.2d 314, though the Commission of Appeals did not specifically discuss the definition in the case of partial incapacity. In the Wright case, as in the case at bar, the jury made no finding on the issue of partial incapacity. In Texas Employers' Ins. Ass'n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, 330, a definition of partial incapacity is similar to that in the Wright case, in that it embraced the issue of reduction "in earning capacity is suffered." The case was affirmed.
In Texas Employers' Ins. Ass'n v. Clack, Tex.Com.App., 132 S.W.2d 399, 401, the Commission of Appeals said, and under the circumstances stated distinguished the case from others stated.
While we think our conclusion necessarily doubtful, by reason of the difference in opinion as above in the courts, we overrule plaintiff in error's assignment.
When Schoolcraft was injured he was first taken to Hotel Dieu, an El Paso hospital, and there treated by Dr. Rogers. Schoolcraft thereafter went to Abilene, Texas, and was there, at the instance of plaintiff in error, treated by Drs. Clark and Cooper, the latter a kidney specialist. Neither of the two named Abilene doctors was in attendance at the trial of this case in El Paso. In his argument to the jury one of the attorneys for defendant in error said: ...
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