Texas Employers' Ins. Ass'n v. Holmes

• Decision Date: 19 June 1946
• Docket Number: No. A-815.,A-815.
• Citation: 196 S.W.2d 390
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. HOLMES.
• Court: Texas Supreme Court

196 S.W.2d 390

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

No. A-815.

Supreme Court of Texas.

June 19, 1946.

Rehearing Denied October 9, 1946.

Answer to Certified Question Conformed to October 18, 1946.

See 196 S.W.2d 1023.

Certified Question from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit under the Workmen's Compensation Act by Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board in favor of Tyra Ellison Holmes. From a judgment in favor of Tyra Ellison Holmes, the Texas Employers' Insurance Association appealed to the Court of Civil Appeals of Dallas, which certified a question to the Supreme Court.

Question answered.

Burford, Ryburn, Hincks & Charlton and Clarence Guittard, all of Dallas, and Black, Graves & Stayton, and Chas. L. Black, all of Austin, for appellant.

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

SHARP, Justice.

This case is before us on a certified question from the Court of Civil Appeals at Dallas. The case was tried in the district court on an agreed statement of facts. Counsel for appellant and for appellee have both agreed that this suit involves the construction of Section 12 of Article 8306, R.C.S., known as the Workmen's Compensation Law. The essential facts are stated in the certificate of the Court of Civil Appeals, and in substance are as follows:

(1) That on January 4, 1944, Tyra Ellison Holmes was employed as a welder at a wage of $125 a week by E. B. Snead, who was a subscriber to the Workmen's Compensation Insurance Law of Texas and carried his compensation insurance with the Texas Employers' Insurance Association; and that this insurance was in full force and effect on January 4, 1944, and covered Holmes as well as other employees of Snead on that date.

(2) That on January 4, 1944, while working in the course of his employment in Dallas County, Texas, an acetylene cutting torch, which Holmes was using to cut a small container attached to a 500 gallon tank, ignited oil in the tank, which severely burned Holmes' right leg, leaving a scar over an area six inches long and five or six inches wide. The burn was of the third degree. It caused Holmes to be hospitalized eleven days, and has left him with scar tissue in the burned area and he feels a dull pain in his right leg when he stands on same and uses it a full day. That on March 1, 1944, Holmes went back to work as a welder for Snead at $125 per week, and he has continued in that employment at the above wages six to seven days a week and working eight to fourteen hours each day.

(3) That Holmes was paid two weeks' compensation at the rate of $20 per week.

(4) That Holmes sustained a specific injury to his right leg, which resulted in his total incapacity to work for eight weeks, followed by a permanent 35 per cent partial loss of the use of his right leg. It is agreed that the compensation period is the 200 week period provided in Section 12 of Article 8306 for the partial loss of use of a leg, and that Holmes' average weekly wage on the date that he sustained his injury was $95.24.

(5) That the question involved is one of law, namely, the correct method of calculating the amount of compensation due weekly for permanent, partial loss of use of a specific member, which involves the construction of Section 12 of Article 8306.

(6) That the district court, sitting without a jury, found that Holmes was "entitled to recover eight weeks' compensation at the rate of $20.00 per week for total loss of use of his right leg and 192 weeks of compensation at the rate of $20.00 per week for 35 per cent permanent partial loss of use of his right leg, totaling $4,000.00, less $40.00 for two weekly compensation payments heretofore made, leaving a balance of compensation accrued and to accrue of $3,980.00."

The judgment of the trial court ordered that Holmes recover from Texas Employers' Insurance Association the sum of $3936.37, with six per cent interest per annum thereon from the date of such judgment.

We quote as follows from the certificate of the Court of Civil Appeals:

"Texas Employers Insurance Association has appealed to this court, contending that the District Court erred in its method of calculating the weekly compensation payments for permanent partial loss of use of a specific member; and here we refer particularly to the latter part of Section 12, reading: `The compensation paid therefor shall be sixty percent of the average weekly wages of the employés but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine.'

"The District Court's calculation is in conflict with the decisions of the Courts of Civil Appeals in the following cases: Western Indemnity Company v. Milam, 230 S.W. 825 (writ refused); Millers' Indemnity Underwriters v. Cahal, 257 S.W. 957; Glenn v. Industrial Accident Board, 184 S.W.2d 302 (reversed on other grounds by Supreme Court [144 Tex. 378, 190 S.W. 2d 805]); Zurich General Accident & Liability Insurance Company, Ltd., v. Thomas, 187 S.W.2d 689. The District Court's holding is also contrary to the first opinion delivered by the Supreme Court in Industrial Accident Board v. Glenn, No. A-439 on the docket of the Supreme Court [144 Tex. 378, 190 S.W.2d 805], delivered April 19, 1945. However, it is in accord with the second opinion in Glenn v. Industrial Accident Board, , delivered July 19, 1945, and with the decisions of the Courts of Civil Appeals in the following cases: Maryland Casualty Company v. Ferguson, 252 S.W. 854 (writ refused), Dohman v. Texas Employers' Insurance Association, 285 S.W. 848."

Because of the conflict of decisions by the Courts of Civil Appeals, and because of the final opinion in the case of Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805, delivered November 14, 1945, which withdrew both former opinions and left the question undecided, the Court of Civil Appeals certified the following question:

"Was the District Court correct in calculating the weekly compensation to be paid to the employee, Tyra Ellison Holmes, for permanent 35% partial loss of use of his right leg to be $20.00 per week instead of 35% of $20.00 or $7.00 per week?"

The certificate points out clearly the conflicting constructions placed upon the Workmen's Compensation Law by the Courts of Civil Appeals as well as by this Court. Unquestionably the law is not free of ambiguity, or there would not have been so many conflicting constructions of certain provisions of the law. Both constructions cannot be correct and both cannot stand. The question presented requires this Court to decide which construction is correct and must be followed in the future. Therefore the provisions embraced in the law must be re-examined, in order to ascertain the purpose of the law, the intention of the Legislature expressed therein, and to decide the correct construction to be given the law.

The Workmen's Compensation Law was enacted in 1917, Vernon's Ann.Civ.St. art. 8306 et seq., to remedy certain conditions that had long existed between employees and employers. Both employees and employers were dissatisfied with the old system of litigation concerning suits brought for injuries, such litigation being expensive and ofttimes resulting in vexatious delays. The Workmen's Compensation Law was enacted mainly to do away with certain inflexible rules relating to the issues of negligence, accident, assumed risk, contributory negligence, and other like issues, in cases of injury or death resulting from accident to an employee in the course of his employment, and more equitably to distribute the economic burdens in such cases. It was intended by the enactment of this law to effect prompt and inexpensive settlements and to make the amount recoverable free of any uncertainty, and also that the compensation allowed to an employee for injuries would be awarded upon broader and more humane rules. The law has become a part of the industrial and economic structure created by modern conditions and development in practically all the leading nations of the world. 71 C. J., p. 250, § 16.

The Workmen's Compensation Law comprehensively describes the amount of damages and compensation to be allowed an employee for certain personal injuries sustained in the course of his employment. The law also created an Industrial Accident Board, and provided that "All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board." (Emphasis ours.) Section 5 of Article 8307. In order to carry out the purposes of the law, the Texas Employers' Insurance Association was created. Article 8308.

Section 12 of Article 8306 is a very important section of the Workmen's Compensation Law, and is the section specifically involved here. The first paragraph of said section reads as follows:

"Sec. 12. For the injuries enumerated in the following schedule the employé shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent of the average weekly wages of such employé, but not less than $7.00 per week nor exceeding $20.00 per week. for the respective periods stated herein, to-wit: * * *." (Emphasis ours.)

After this paragraph some nineteen specific parts of the body for which compensation is provided are listed, and then follows this paragraph:

"In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member." (Emphasis ours.)

Between the two paragraphs quoted above there is included the compensation schedule for the loss of a leg. After the latter...