Texas Employers Ins. Ass'n v. Patterson

• Decision Date: 23 January 1946
• Docket Number: No. A-647.,A-647.
• Citation: 192 S.W.2d 255
• Parties: TEXAS EMPLOYERS INS. ASS'N v. PATTERSON.
• Court: Texas Supreme Court

Page 255

192 S.W.2d 255

TEXAS EMPLOYERS INS. ASS'N v. PATTERSON.

No. A-647.

Supreme Court of Texas.

January 23, 1946.

Rehearing Denied February 27, 1946.

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

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 appealed with defendant filing a cross-assignment. Judgment in part for plaintiff was reversed by the Court of Civil Appeals, 188 S.W.2d 778, and defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

Burford, Ryburn, Hincks & Charlton, Logan Ford and Howard Jensen, all of Dallas, for petitioner.

White & Yarborough and Donald V. Yarborough, all of Dallas, for respondent.

SMEDLEY, Justice.

Respondent Patterson in his suit against petitioner, his employer's insurer, alleges that his left hand was caught in a metal shaver, that the fingers, the hand and the arm were injured, and that as a result of the injuries he suffered the total and permanent loss of the use of the fingers and thumb and of the hand and arm. The jury, in answer to issues relating to the loss of the use of the first, second and third fingers of the left hand, found that as a result of the injuries respondent suffered the total loss of the use of each of the three fingers for twelve weeks, and suffered partial loss of the use of each of the three fingers for twenty-six weeks, and that the percentage of the partial loss was fifty per cent. The trial court rendered judgment for respondent for $250, against which it credited $54 which had been paid.

On respondent's appeal the Court of Civil Appeals reversed the trial court's judgment and remanded the cause, holding that the trial court erred in refusing to submit affirmatively and unconditionally a series of special issues as to respondent's loss of the use of his left hand. 188 S.W.2d 778.

The case was appealed without a statement of facts. The petition alleges injury to the fingers and the hand and the total and permanent loss of the use of the hand, as well as of the fingers. No issue was submitted to the jury as to the fact of injury or where the injuries were. The first special issue is as follows:

"Do you find from a preponderance of the evidence that Plaintiff, Gerald Patterson, sustained the total loss of the use of the first or index finger on his left hand, for any length of time as a result of the injuries sustained by him on April 15th, 1943, while employed by the Texas Farm & Ranch Publishing Co. and Holland Magazine Company?"

This issue is followed by other issues inquiring whether the loss of the use of the finger was permanent or temporary, and if temporary, for how many weeks, whether there was a partial loss of the use of the finger, whether it was permanent or temporary, and if temporary, for how many weeks, and the percentage of the partial loss of use. Like issues were submitted as to the second and third finger.

These issues were followed by special issue No. 22, which is as follows:

"Do you find from a preponderance of the evidence that the result of the injury of April 15th, 1943, was limited to the fingers of plaintiff's left hand below the knuckles?"

After issue No. 22 and before issue No. 23 the jury is instructed that if it has answered issue No. 22 "Yes," it will not answer issues numbered 23 to 29, and that otherwise, it will answer them. Special issue No. 23 is as follows:

"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 Co.?"

Issues 23 to 29, inclusive, relate to the loss of the use of the hand, whether permanent or temporary, total or partial, etc. Respondent filed written objection to issue No. 22 and to the instruction immediately following it "because the plaintiff is entitled to an unconditional submission of issues numbered 23 to 28 and 29 inclusive, and he is entitled to an affirmative jury finding thereon irrespective of any defensive issues raised by the defendant." Petitioner made no objection to the court's charge. The jury answered special issue No. 22 "Yes," and in accordance with the court's instruction did not answer issues 23 to 29.

Respondent's suit is for compensation for specific injuries under the provisions of Section 12 of Article 8306 of the Revised Civil Statutes of 1925. He seeks to recover for the total and permanent loss of the use of the fingers and of the hand. The fingers are parts of the hand, but the statute prescribes separately and definitely the amount of compensation to be paid for the loss of each of the fingers and the amount to be paid for the loss of the hand. It is provided that the permanent loss of the use of a member shall be equivalent to and shall draw the same compensation as the loss of that member. By construction compensation is allowed for temporary loss of use as well as for permanent loss of use of a member, and for partial as well as for total loss of use. Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364; Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926.

In this case the court submitted no issue inquiring whether respondent was injured. The court's charge assumes that respondent suffered injury, for both the issues submitted as to loss of the use of the fingers and the issues submitted as to loss of the use of the hand inquire whether respondent "sustained" loss of the use of the finger or of the hand "as a result of the injuries sustained by him." No objection was made to the court's charge on the ground that it assumed that respondent suffered injuries and no request was made that the court submit to the jury the question whether respondent was injured. In these circumstances it is proper to assume that injury to respondent was proven by undisputed evidence.

It is apparent from the pleadings and the manner in which the case was submitted to the jury that on the trial the real or principal controversy between the parties was as to the result of the injuries. Findings that the injuries caused the loss of the use of the hand would be more favorable to respondent (the plaintiff) and would support a greater recovery than would findings that the injuries caused merely the loss of the use of three of the fingers. It was to petitioner's (the defendant's) interest that the result of the injuries be confined by the jury's answers to the loss of the use of the fingers. Issues numbered 23 to 29, inclusive, as to the loss of the use of the hand, submitted to the jury respondent's principal theory of the case. They were raised by the pleadings and, for reasons hereinafter given, we assume that they were raised by the evidence in the case.

Respondent as plaintiff was entitled to have these issues, numbered 23 to 29, submitted to the jury affirmatively and unconditionally. They were not so submitted, but were conditioned on a negative answer to issue No. 22, which was: "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?" The issue quoted was a defensive issue, that is, defensive as against respondent's suit for compensation for the loss of the use of the hand. And thus the court, instead of submitting respondent's issues as to the loss of the use of his hand affirmatively and unconditionally, submitted them to be answered only on the condition that the jury answer in the negative defensive issue No. 22.

It is argued by petitioner that issue No. 22 is in substance the same as an issue inquiring whether the injuries caused the loss of the use of the hand. An affirmative answer to issue No. 22 does negative a loss of the use of the hand as distinguished from a loss merely of the use of the three fingers, but the issue as submitted and as followed by the condition in the court's charge deprived respondent of the affirmative and unconditional submission of his issues as to the loss of the use of the hand. Each party, whether plaintiff or defendant, is entitled to the affirmative and unconditional submission of the issues presented by his pleadings as grounds of recovery or grounds of defense, provided, of course, there is evidence raising the issues. Fox v. Dallas Hotel Co., 111 Tex. 461, 475, 240 S.W. 517; Walgreen-Texas Company v. Shivers, 137 Tex. 493, 503, 154 S.W.2d 625; Oilbelt Motor Co. v. Hinton Tex.Civ.App., 11 S.W.2d 338, 339; Snyder v. Magnolia Petroleum Co., Tex.Civ.App., 107 S.W.2d 603, 606, 607; Dallas Ry. & Term. Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183,...