Traders & General Ins. Co. v. Watson

• Decision Date: 07 July 1939
• Docket Number: No. 1925.,1925.
• Citation: Traders & General Ins. Co. v. Watson, 131 S.W.2d 1103 (Tex. App. 1939)
• Parties: TRADERS & GENERAL INS. CO. v. WATSON.
• Court: Texas Court of Appeals

131 S.W.2d 1103

TRADERS & GENERAL INS. CO. v. WATSON.

No. 1925.

Court of Civil Appeals of Texas. Eastland.

July 7, 1939.

Rehearing Denied September 22, 1939.

Appeal from District Court, Nolan County; A. S. Mauzey, Judge.

Suit under the Workmen's Compensation Act between A. C. Watson, claimant, and the Traders & General Insurance Company, insurance carrier, to set aside an award of the Industrial Accident Board. From a judgment awarding compensation, the insurance carrier appeals.

Reversed and remanded.

Cox & Hayden and Ben L. Cox, all of Abilene, and Lightfoot, Robertson & Gano, of Fort Worth, for appellant.

Anderson & Dickson, of Sweetwater, for appellee.

GRISSOM, Justice.

This is an appeal from a judgment in favor of the claimant, A. C. Watson, against the insurance carrier, Traders & General Insurance Company, in a workmen's compensation case.

The court submitted to the jury the following special issues, which were answered as shown:

"1. Do you find from a preponderance of the evidence that the Traders & General Insurance Company was the carrier of an insurance policy covering the employees of Charles M. Watson on the 13th day of May, 1937? Answer: Yes.

"2. Do you find from a preponderance of the evidence that A. C. Watson sustained a personal injury on or about the 13th day of May, 1937, in the manner alleged by him? Answer: Yes.

"3. Do you find from a preponderance of the evidence that such injury, if any, sustained by A. C. Watson on or about the 13th day of May, 1937, was received by him in the course of his employment with Charles M. Watson? Answer: Yes.

"4. Do you find from a preponderance of the evidence that A. C. Watson sustained any incapacity to work or labor as a natural result of such injury, if any, sustained by him on or about the 13th day of May, 1937? Answer: Yes.

"5. Do you find from a preponderance of the evidence that A. C. Watson was totally incapacitated as a natural result of such injury, if any, sustained by him on or about the 13th day of May, 1937? Answer: Yes.

"6. Do you find from a preponderance of the evidence that such total incapacity, if any, sustained by A. C. Watson, is permanent? Answer: Yes.

"7. Do you find from a preponderance of the evidence that the payment of compensation to A. C. Watson, if any, in weekly installments instead of a lump sum (if compensation is due to be paid to A. C. Watson) will result in a manifest hardship and injustice to A. C. Watson? Answer: Yes.

"8. Do you find from a preponderance of the evidence that the incapacity of A. C. Watson, at this time, if any, to labor, is not due solely to cause or causes other than such injuries, if any, sustained by him on May 13, 1937? Answer: It is not due solely to other causes.

"9. Do you find from a preponderance of the evidence that A. C. Watson worked substantially the whole of the year next preceding May 13, 1937? Answer: Yes.

"10. What do you find from a preponderance of the evidence was the average daily wage of A. C. Watson for the days he actually worked during the year next preceding May 13, 1937? Answer: $6.00 per day.

"11. Do you find from a preponderance of the evidence that other employees worked substantially the whole of the year next preceding May 13, 1937, in the same class of work as that of A. C. Watson, in the same or similar employment and in the same or neighboring place? Answer: Yes.

"12. What do you find was the average daily wage of such employees, if any, for the days they actually worked, if any, for the year next preceding May 13, 1937? Answer: $6.00 per day.

"13. Do you find from a preponderance of the evidence that such incapacity, if any, sustained by A. C. Watson, was due solely to his pricking his finger with a knife? Answer: No.

"14. Do you find from a preponderance of the evidence that Charles M. Watson had actual notice of such injury, if any, sustained by A. C. Watson within thirty days after such injury, if any, occurred? Answer: Yes."

(The instructions given in connection with the issues are omitted.)

The court entered judgment for claimant amounting to $20 per week for a period of 398 weeks. The judgment, after quoting the verdict of the jury, recites "and it appearing to the court from the undisputed evidence that such total and permanent disability commenced on May 30, 1937, * * * and that A. C. Watson is entitled to recover * * * in a lump sum compensation for a period of 398 weeks at $20 per week * *." (Italics ours).

From the judgment rendered insurer has appealed.

The insurer by its first four propositions presents its contention that the judgment must be reversed because there was no issue submitted to the jury whereby the jury could, or did, find when claimant's total permanent incapacity began, or the number of weeks claimant will suffer total disability. Prior to submission of the charge to the jury, insurer specifically excepted to the charge because it did not submit an issue whereby the jury might determine when claimant became totally disabled, or when his "injury" became permanent, "therefore the court does not have any date from which to begin the time when compensation shall run thereon." The exception was overruled and the point duly preserved in the insurer's amended motion for new trial. Claimant says that insurer's objection and exception was insufficient; that it was the insurer's duty to submit a proper issue. He cites as authority therefor, among other cases, Harris v. Thornton's Dept. Store, Tex.Civ.App., 94 S.W.2d 849, and Harris v. Leslie, Chief Justice, 128 Tex. 81, 96 S.W.2d 276. The cases cited do not support the proposition. The issue was not defensive. The burden to obtain a finding thereon rested on the claimant, not the insurer. Special issues numbers 2, 4, 5, and 6 are the only ones directly relevant to the question under consideration. In answer to said issues the jury found that claimant sustained a personal injury about the 13th day of May, 1937; that claimant sustained some incapacity to work as a natural result of the injury of May 13th; that claimant was totally incapacitated as a natural result of the injury sustained by him on May 13th and that such total incapacity sustained by the claimant "is permanent." (Italics ours)

By the provisions of Art. 8307, sec. 5, Vernon's Tex.Civ.St.1936, art. 8307, § 5, the burden of proof is placed upon the claimant to establish facts which entitle him to recover compensation. This includes the duration of disability. It has now been definitely determined that the compensation period, the maximum period being 401 weeks, begins on the date of the injury, and terminates, in all events, at the expiration of 401 weeks after the date of the injury, and not from the date of development of incapacity. Texas Employers Ins. Ass'n v. Guidry, 128 Tex. 433, 99 S.W.2d 900; Jones v. Texas Employers' Ins. Ass'n, 128 Tex. 437, 99 S.W.2d 903. It results, even if the claimant's total incapacity is permanent, that his maximum recovery could be for no more than $20 per week from the date of development of incapacity until the expiration of the period of 401 weeks from the date of injury. He is entitled, in any event, to compensation for only the number of weeks he actually suffers incapacity during the period of 401 weeks immediately subsequent to the date of injury. It is evident that in a trial before a jury claimant must, by a jury finding, or by the undisputed evidence, establish facts from which the amount of recovery, or rate and period of compensation, may be arrived at by mathematical calculation.

In Texas Employers' Ins. Ass'n v. White, Tex.Com.App., 99 S.W.2d 904, 905, the jury had returned a verdict in which it was found that White "in August, 1930" sustained an injury, etc., and in "March, 1933" became totally and permanently incapacitated. Judgment was rendered for White for compensation for a period of 401 weeks from the date incapacity began. The court said: "The judgment of the trial court is erroneous to the extent that compensation is awarded for a period extending beyond the end of 401 weeks from the date of the injury. * * * We are unable to reform the judgment, for want of information as to the date the injury occurred and as to the date total incapacity began. The verdict of the jury furnishes no more definite information in those respects than to give the month and year the respective events occurred." (Upon filing of a remittitur "sufficient to account for the greatest possible amount of excessiveness in the judgment" the judgment was affirmed. 129 Tex. 659, 107 S.W.2d 360, 361.)

This is not a case where the court attempted to submit an issue requiring the jury to find the number of weeks claimant would suffer total incapacity, or the date total permanent incapacity began. On the contrary, the trial court was of the opinion and found in the judgment, that the undisputed evidence showed claimant's total permanent disability commenced May 30, 1937, and, such date being approximately three weeks after claimant's injury, the court awarded compensation for a period of 398 weeks. After most careful consideration we find ourselves unable to agree with the conclusion of the eminent trial court that the undisputed evidence shows claimant became totally and permanently disabled on May 30, 1937. It would serve no good purpose to lengthen this opinion by quotation of testimony from which we conclude that it is not indisputably shown that claimant became totally and permanently disabled on said date. Unless conclusively established, it was incumbent on claimant to obtain jury findings which would furnish a definite basis for computation of the amount of recovery, in this instance, the date when claimant became totally and permanently incapacitated, or the number of weeks he will be so incapacitated. Claimant has not obtained such a finding. We conclude the trial court was in error in its finding that the date claimant became totally and permanently incapacitated,...