State v. Bothe

• Decision Date: 10 May 1950
• Docket Number: No. 12084,12084
• Citation: 231 S.W.2d 453
• Parties: STATE v. BOTHE.
• Court: Texas Court of Appeals

Page 453

231 S.W.2d 453

STATE v. BOTHE.

No. 12084.

Court of Civil Appeals of Texas, San Antonio.

May 10, 1950.

Rehearing Denied June 7, 1950.

Price Daniel, Attorney General, David Wuntch, Assistant Attorney General, for appellant.

J. R. Cade, San Antonio, P. H. Long, San Antonio, for appellee.

NORVELL, Justice.

The case involves the construction of the 'Second-Injury Fund' amendment to the Texas Workmen's Compensation Act.

In 1941 appellee, William I. Bothe, suffered an injury which resulted in the amputation of the right leg above the knee. On January 29, 1948, Bothe received a second injury which resulted in a like amputation of the left leg above the knee.

Bothe's employers at the time of his injuries were subscribers under the Workmen's Compensation Act. He received $100.00 in settlement of the claim growing out of the first injury and $3,500.00 as a result of the second injury.

In arriving at the amount to be paid Bothe out of the Second-Injury Fund, the Industrial Accident Board contends that he should be charged with the compensation payable under the Act for the loss of a leg at or above the knee because of the first injury, as well as for the compensation payable for the loss of a leg at or above the knee as a result of the second injury. Under this formula, Bothe would be entitled to a payment from the Second-Injury Fund of $25.00 as compensation for a period of one week. Article 8306, § 12.

The trial court in its computations took $10,025.00 (the amount payable in 401 weekly installments of $25.00 each for total and permanent disability) and deducted therefrom the sum of $3,600.00, the total of the amounts Bothe had received for the loss of both of his legs, leaving a balance of $6,425.00. A discount of $1,186.87 was then allowed for payment in a lump sum and judgment rendered for $5,239.13, together with interest thereon from August 22, 1949, until paid.

The State, by its Attorney General, has raised six points which seem to be substantially the same as those urged in the case of Industrial Accident Board v. Miears, Tex.Civ.App., 227 S.W.2d 571, decided by the Galveston Court of Civil Appeals. We are in agreement with the Galveston Court on all except one of the points decided in the Miears case, and hold, in line with said decision, that:

1. Venue of this suit was properly laid in Bexar County where the second injury took place.

2. This is not an action for mandamus, but is a suit against the State for benefits payable out of a statutory fund. Permission to file suits such as this against the State was given by the Act of the Legislature amending the Workmen's Compensation Law by providing for a Second-Injury Fund.

3. The trial court correctly awarded a lump sum payment and allowed interest on past due payments chargeable against the Second-Injury Fund.

However, we do not agree with the Galveston Court of Civil Appeals as to the method of computing the amount due appellee from the Second-Injury Fund. In our opinion payments made or benefits provided for by the Workmen's Compensation Act for prior injuries are not to be charged against the employee in determining the amount he is entitled to from the Second-Injury Fund upon his receiving a totally disabling injury.

The Texas Second-Injury Fund amendment was adopted in 1947, H.B. 465, Chapter 349, p. 690, Acts of the Fiftieth Legislature, Article 8306, §§ 12c, 12c-1, 12c-2, Vernon's Ann.Civ.Stats. As this case turns upon the construction of this enactment, we set the same out in full, together with the emergency clause 'Workmen's Compensation-Subsequent Injuries

'Chapter 349

'H. B. No. 465

'An Act amending Article 8306, Section 12c, Revised Civil Statutes of Texas of 1925; and declaring an emergency.

'Be it enacted by the Legislature of the State of Texas:

'Section 1. That Article 8306, Section 12c, Revised Civil Statutes of Texas of 1925, be and the same is hereby amended so as to hereafter read as follows:

"Article 8306.

"Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers' Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the 'Second-Injury Fund' hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.

"Sec. 12c-1. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes pemanently and totally incapacitated through the loss or loss or use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as 'Second-Injury Fund,' hereafter defined.

"Sec. 12c-2. The special fund known as the 'Second-Injury Fund' shall be created in the following manner:

"(a) In every case of the death of an employee under this Act where there is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the sum of One Thousand, Five Hundred Dollars ($1,500) to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof.

"(b) When the total amount of all such payments into the Fund, together with the accumulated interest thereon, equals or exceeds One Hundred Thousand Dollars ($100,000) in excess of existing liabilities, no further payments shall be required to be paid to said Fund; but whenever thereafter the amount of such Fund shall be reduced below Fifty Thousand Dollars ($50,000) by reason of payments to such Fund, then payments to such Fund shall be resumed forthwith, and shall continue until such Fund again amounts to One Hundred Thousand Dollars ($100,000) including accumulated interest thereon.'

'Sec. 2. The fact that there is an urgent need to facilitate the employment of handicapped persons including a large number of returning veterans through the establishment of a Special Fund out of which such persons may be compensated when they sustain a subsequent injury, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be, and the same is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.'

We have italicized the wording of the statute upon which the parties in their briefs place particular emphasis.

Appellee comes within the provisions of Article 8306, § 12c-1. He had previously lost one leg and subsequently became totally incapacitated through the loss of the remaining leg. The insurance carrier at the time the second injury occurred is 'liable only for the compensation payable for such second injury.' The amendment provides, however, 'that in addition to such compensation (for the second injury) and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation' for total and permanent disability out of the Second-Injury Fund.

The word 'therefor' refers to 'such compensation.' 'Such compensation' is that payable for the second injury. Under the Act, the employee suffering an injury as set out in Article 8306, § 12c-1, is entitled to compensation for total and permanent disability. The difference between the amount due the employee for total and permanent disability and the total of the combination of payments provided for as compensation for the specific 'second' injury suffered is payable out of the Second-Injury Fund. The use of the phrase, 'combination of the payments' does not expressly nor by implication include payments for more than one injury. A 'combination of the payments' may, and in the case of this particular statute does, relate to one injury only.

As we construe the statute, Bothe upon becoming totally disabled by losing a second leg was entitled to $25.00, the maximum allowable under Article 8306, § 10, for 401 weeks, which would amount to $10,025.00. From this amount would be deducted the 'combination of the payments' for the 'second injury'-that is, 200 weekly payments of $25.00 each, or $5,000.00, Article 8306, § 12. The difference between $10,025.00 and $5,000.00, amounting to $5,025.00, is payable out of the Second-Injury Fund. As a lump sum payment, instead of weekly...