Travelers Insurance Company v. Seabolt
| Decision Date | 17 October 1962 |
| Docket Number | No. A-8770,A-8770 |
| Citation | 361 S.W.2d 204 |
| Parties | The TRAVELERS INSURANCE COMPANY, Petitioner, v. Joe B. SEABOLT, Respondent. |
| Court | Texas Supreme Court |
Turpin, Kerr, Smith & Dyer, Midland, for petitioner.
Warren Burnett, Odessa, for respondent.
This is a workmen's compensation case. The trial court rendered judgment upon jury findings allowing Seabolt a recovery for the permanent loss of the use of his right hand. The Court of Civil Appeals had affirmed, 351 S.W.2d 350. We sustain Travelers' point of error which asserts that 'the Court of Civil Appeals erred in affirming a judgment awarding maximum benefits in a Workmen's Compensation case for injury to a hand, when there is no evidence of the total loss of the use of such hand.' The judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for another trial.
(1) In addition to the point above set out, the application for writ of error was also granted upon a point complaining of the way in which the case was submitted to the jury. In determining the question of reversible error in connection with a jury submission, it is necessary to consider the objections of counsel made to the charge and the like. In view of our holding on the 'no evidence' point asserted by Travelers, it is unnecessary to consider the details and technicalities of the charge and the objections thereto other than to point out that, as an abstract proposition, Special Issue No. 1 and the definition accompanying it does not embody a correct statement of the substantive law relating to a total loss of the use of a hand. In the interest of clarity, Special Issue No. 1 and the definition accompanying it are here set forth:
'Special Issue No. One.
'Do you find from a preponderance of the evidence that the injury to plaintiff's right hand on the 6th day of October, 1959, if any, has resulted, or will result, in a 'loss of use' of said hand?
'By the term 'loss of use', as used in this charge is meant that the member is so affected as to substantially and materially impair the use thereof in the practical performance of its functions in the pursuit of a laboring man.'
(2, 3) Article 8306, § 12 1 provides that 'the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member.' Although the word 'total' is not used, it is clear that the Legislature intended the phrase to mean a total loss of the use of a member. While the absence of the word 'total' is not necessarily fatal to a correct submission of an issue, if followed by a proper definition, the use of the word in the issue itself is recognized as the preferable form of submission. 2
There are two concepts of the phrase, 'total loss of the use of a member.' Under the wording of the statute it can be said that a total loss of the use of a member exists whenever, by reason of injury, such member no longer possesses any substantial utility as a part of the body. This meaning of the phrase does not embrace or have reference to the effect which the injury may have upon the injured party's earning capacity or his ability to secure and retain employment. The loss in law amounts to a partial disability and is compensable as such even though in fact no diminution of earning power has resulted. Aetna Casualty & Surety Co. v. Moore, Tex.Sup., 361 S.W.2d 183, Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, Texas Employers Ins. Ass'n v. Thrash, Tex.Civ.App., 136 S.W.2d 905, 1. c. 907, wr. dism., judgm. cor.
There are however a number of decisions which support a somewhat broader concept than that above stated and one which will in most instances be more favorable to the injured workman than the one just stated. Although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of a member has taken place. Texas Employers' Ins. Ass'n. v. Lane, Tex.Civ.App., 251 S.W.2d 181, ref. n. r. e., Travelers Insurance Co. v. Calcote, Tex.Civ.App., 205 S.W.2d 56, ref. n. r. e., Traders & General Ins. Co. v. Maxwell, Tex.Civ.App., 142 S.W.2d 685, wr. dism., judgm. cor. Cf. Choate v. American Motorist...
To continue reading
Request your trial
-
Texas Workers' Compensation Com'n v. Garcia
...use of that member. Evidence supporting either of these definitions would support a recovery for total loss of use. Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex.1962); Texas Employer's Ins. Ass'n v. Sauceda, 636 S.W.2d 494 (Tex.App.--San Antonio 1982, no writ). See also 2 STATE BAR OF......
-
Paxton v. City of Dall.
...attorney admitted prosecution was due to item he overlooked rather than any false statements by defendants).59 Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required conclusively established claimant did not suffer total loss o......
-
City of Keller v. Wilson
...attorney admitted prosecution was due to item he overlooked rather than any false statements by defendants). 59. Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required conclusively established claimant did not suffer total loss......
-
Pipe v. Leese Tool & Die Co.
...is comparable to the test that is most universally applied in the other jurisdictions of this country. See e. g., Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex., 1962); Mustapha v. Patton-MacGuyer Co., 100 R.I. 493, 217 A.2d 240 (1966); Boxleitner v. St. Maries Plywood Co., 91 Idaho 85......