Traders & General Ins. Co. v. Maxwell

• Decision Date: 25 July 1940
• Docket Number: No. 5649.,5649.
• Parties: TRADERS & GENERAL INS. CO. v. MAXWELL.
• Court: Texas Court of Appeals

142 S.W.2d 685

TRADERS & GENERAL INS. CO. v. MAXWELL.

No. 5649.

Court of Civil Appeals of Texas. Texarkana.

July 25, 1940.

Rehearing Denied August 1, 1940.

Error from District Court, Rusk County; Paul G. Brown, Judge.

Suit under the Workmen's Compensation Act by John C. V. Maxwell, compensation claimant, to set aside an award of the Industrial Accident Board in favor of the Traders & General Insurance Company, compensation insurance carrier. To review a judgment awarding the claimant compensation for permanent total loss of the use of his leg, the compensation insurance carrier brings error.

Judgment affirmed.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Caves, Waldrop & Shaw, of Henderson, for plaintiff in error.

White & Yarborough, of Dallas, and H. H. Wellborn, of Henderson, for defendant in error.

JOHNSON, Chief Justice.

This appeal by Traders & General Insurance Company is from a judgment awarding John C. V. Maxwell, an oil field worker, compensation for permanent total loss of the use of his right leg, sustained February 13, 1937, while working as an employee of Adams Brothers Drilling Company, Inc., of which Traders & General Insurance Company was the compensation insurance carrier. John C. V. Maxwell will be referred to as appellee and Traders & General Insurance Company as appellant.

Special issue No. 4 submitted to the jury reads: "Do you find from a preponderance of the evidence that plaintiff sustained total incapacity of his leg as a natural result of the accidental injuries, if any, sustained by him on or about February 13, 1937? Answer Yes or No." (The jury answered "Yes.") Referable to the question the trial court instructed the jury as follows: "You are instructed that the phrase `Total incapacity of his leg' as used in the Court's charge means total loss of use of the leg; it does not imply an absolute disability to perform any kind of labor, but such incapacity of the leg that it disqualified a person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of said leg, is ordinarily regarded as total incapacity of the leg."

The defendant objected to the court's definition of the phrase "total incapacity of his leg" as used in the charge, which objections read as follows: "Said defendant objects and excepts to the court's main charge particularly the definition of the term `total incapacity' for the reason that such definition is improper in cases of the kind established under the evidence here and submitted to the jury, in that the case here both under the evidence and the charge involves merely a question of specific injury and not one of general disability, and for the further reason that such definition does not take into consideration that part of the law which provides that such workman is to pursue and retain any employment of any kind, and as here defined has the effect of advising the jury that they shall consider only that character of employment theretofore performed by him prior to the injury, and to that extent is upon the weight of the evidence, and in that connection the said defendant requests the court to prepare and submit to the jury in connection with his charge an amended and corrected definition of such term including therein those matters called here to the attention of the court." And in addition thereto further objected to such definition as follows: "Said defendant objects and excepts to the court's main charge and particularly and in addition to the definition of the term `total incapacity of his leg' for the reason that same is not a proper definition in that the definition given involves a question of the extent of the ability of the plaintiff to pursue and retain employment and to perform the usual tasks of a workman, when under all the evidence herein and under the charge of the court and special issues submitted the question is only one of a specific injury and therefore should be based only upon the extent of percentage of disability to that particular member."

Special issue No. 7 submitted to the jury reads: "Do you find from a preponderance of the evidence that plaintiff sustained partial incapacity of his leg as a natural result of the accidental injuries, if any, received by him on or about February 13, 1937? Answer Yes or No." (The jury answered "No."). Referable to special issue No. 7 the court instructed the jury as follows: "You are instructed that by the term `Partial incapacity of his leg' as used in the court's charge is meant the extent that the injury to his leg in fact destroyes or impairs the ability of the leg to be as efficient or competent for performing the usual tasks of a workman after the injury as it was before; any degree of incapacity in the leg less than total."

The defendant objected to the court's definition of the phrase "partial incapacity of his leg", which objections read as follows: "Said defendant objects and excepts to the court's main charge particularly the definition of the term `partial incapacity' for the reason that such definition is improper in cases of the kind established under the evidence here and submitted to the jury, in that the case here both under the evidence and the charge involves merely a question of specific injury and not one of general disability, and for the further reason that such definition does not take into consideration that part of the law which provides that such workman is to pursue and retain any employment of any kind, and as here defined has the effect of advising the jury that they shall consider only that character of employment heretofore performed by him prior to the injury, and to that extent is upon the weight of the evidence, and in that connection the said defendant requests the court to prepare and submit to the jury in connection with his charge an amended and corrected definition of such term including therein those matters called here to the attention of the court." And in addition thereto further objected to such definition as follows: "Said defendant objects and excepts to the court's main charge and particularly and in addition to the definition of the term `partial incapacity of his leg,' for the reason that same is not a proper definition in that the definition given involves a question of the extent of the ability of the plaintiff to pursue and retain employment and to perform the usual tasks of a workman, when under all the evidence herein and under the charge of the court and special issues submitted the question is only one of a specific injury and therefore should be based only upon the extent or percentage of disability to that particular member."

Appellant's first four propositions assert that the trial court erred in overruling its above-quoted objections to the court's definition of the phrase "total incapacity of his leg" and of the phrase "partial incapacity of his leg" as used in the court's charge. The complaint now urged against said definitions is that they include or take into consideration the loss of the use of the leg for "purposes of work"; that (R.S. Article 8306, Sec. 12) in providing compensation for the loss of the use of a specific member the character of the use (for the loss of which compensation was intended) does not include and is not referable to its use for purposes of work. Expressed in the language of appellant, the contention is that "the compensation provided for a specific injury has to do with and is controlled by the loss or percentage of the loss of such member as an integral part of the body, or the loss of physical or bodily function." The phrase "loss of such member as an integral part of the body, or the loss of physical or bodily function", as used by appellant, is not explained further than that it is not intended to include loss of the use of the member for purposes of work. It is claimed that the theory advanced by appellant is supported by the decision in Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, 928, in which case it is held that to recover compensation for the loss or the loss of the use of a specific member, it is not necessary to show, in pleading or proof, that incapacity for work in any degree has in fact resulted therefrom. The decision in the Munday case is based upon Section 12 of Article 8306, which provides compensation for the loss of certain enumerated members of the body, and further provides: "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." (Italics ours.) The statute thus denominates the loss of such member, or the loss of its use, as partial incapacity. So, in providing compensation therefor the law conclusively presumes that in the loss or the loss of the use of such a member the workman has sustained partial incapacity, and for that reason it is held in cases of such specific injuries that it is not necessary to show that incapacity has in fact resulted therefrom. That the character of use of such a member, for the loss of which use the law intends to provide compensation, includes its use for purposes of work is further made clear by Judge Harvey in decision of the third point decided in the Munday case, wherein it is held that for temporary total loss of the use of the hand, the law contemplates payment of the same compensation, during existence of such incapacity, not exceeding 150 weeks, as in case of permanent loss of the hand. And that such is the proper construction to be placed upon said Section 12 of Article 8306, even though as a result of such construction a temporary total loss of the use of a hand for as much as 150 weeks would call for the same total amount of compensation as if the loss were permanent, because "the degree of incapacity for work, which results exclusively from a temporary, total...