U.S. Fidelity & Guaranty Co. v. London, A-9601

• Decision Date: 04 March 1964
• Docket Number: No. A-9601,A-9601
• Citation: 379 S.W.2d 299
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY, Petitioner, v. Oliver LONDON, Respondent.
• Court: Texas Supreme Court

Page 299

379 S.W.2d 299

UNITED STATES FIDELITY AND GUARANTY COMPANY, Petitioner, v.Oliver LONDON, Respondent.

No. A-9601.

Supreme Court of Texas.

March 4, 1964.

Rehearing Denied June 17, 1964.

Kenley, Ritter & Boyland and Neal A. Hawthorn, Longview, for petitioner.

Gallagher, Francis, Bean, Wilson & Berry, Dallas, Florence, Garrison & HoltGilmer, Baldwin & Baldwin, Marshall, for respondent.

GRIFFIN, Justice.

Respondent, as plaintiff in the trial court, filed a suit under the Workmen's Compensation Act, against petitioner, as defendant and compensation insurance carrier of plaintiff's employer, alleging that he had suffered total disability from an injury received in the course of plaintiff's employment as the result of an accidental injury to plaintiff's left leg and right and left hands.Plaintiff, by a trial amendment, in the alternative pleaded that he received injury to specific members of his body, to-wit: to his left leg and to his right and left hands.

With regard to the disability resulting from the injuries to the three specific members of plaintiff's body, the trial court submitted similar issues regarding each emember.First, the court inquired if plaintiff'sustained any total loss of the use of his left leg following the injury.'The jury answered, 'yes.'

Next the court inquired as to the 'duration, if any, of such total loss.'The jury was instructed to answer, 'Permanent' or 'by giving the number of weeks,' or 'None.'To these issues the jury answered similar issues regarding each member. 59 weeks' total loss of use of plaintiff's right hand; and 59 weeks' total loss of use of plaintiff's left hand.Therefore the total loss of use of each of the three members was found to be 'temporary' rather than 'permanent.'

In its answer to the issues submitted with regard to the specific injuries the jury found that plaintiff had suffered permanent partial disability of a definite percentage as to his left leg; his right hand; and to his left hand.

The jury's answer to other special issues confined his disability solely to his specific injuries, consequently there is no question of a general injury recovery in this case.No complaint was made of these findings and the denial of recovery by plaintiff for general injuries.

The parties stipulated that the period for temporary total loss of use of each of the three members was 59 weeks for each member.

In rendering judgment for plaintiff's temporary total loss of use of the specific members, the trial court refused to cumulate the total loss of use of each specific member, and rendered judgment only for 59 weeks' total loss of use at the maximum rate of $35.00 per week.The court cumulated the permanent partial disabilities for the length of time and at the percentage of disability found by the jury.Petitioner does not complain in this court of the cumulative award for permanent partial disabilities, therefore, we do not have this question before us and assume, without deciding, that the trial court's action was correct.

The Court of Civil Appeals reformed and affirmed the trial court's judgment so as to award plaintiff recovery for each temporary total loss of use, thus cumulating the recovery for the temporary total loss of use of three specific members.366 S.W.2d 263.

The Court of Civil Appeals based its judgment upon the wording of the last clause of the following paragraph found in Article 8306, Section 12, Vernon's Texas Civil Statutes, reading as follows:

'Where the employee sustains concurrent injuries resulting in concurrent incapacities, he shall received compensation only for the injury which produces the longest period of incapacity; but this Section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one (1) member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.'

All emphasis in this opinion is that of this Court unless otherwise indicated.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Defendant, as petitioner in this Court, by its first three points of error attacks the allowance by the Court of Civil Appeals of three separate periods of total loss of use of the specific members of plaintiff's body, viz: 60 weeks for left leg; 59 weeks for right hand; and 59 weeks for left hand.In its Application for Writ of Errordefendant says: 'Simply stated, the question before the court is the amount of compensation respondent(plaintiff) should receive for the 59-week period following his accident, a period of time when he was totally disabled and suffered from total loss of use of three specific members of his body.'

Respondent claims that although the record shows only 59 weeks' total loss of the use of each of the three specific members, when you add this temporary total loss to the permanent partial loss of use of each of the three members, you have a permanent loss of use for each of the three members, and that the Court of Civil Appeals was correct in cumulating the recovery for the total loss of use.

The question must be solved by the language of the paragraph from Article 8306, § 12, quoted above.The facts establish that each member was injured as the result of only one accident, and that the incapacities to each member were concurrent.The 59 weeks' total loss of use to each of the three members covered the same 59 weeks of elapsed time.

In the case of Texas Employers Insurance Association v. Patterson(1946), 144 Tex. 573, 192 S.W.2d 255, the employee alleged that he had suffered the total and permanent loss of use of the fingers, his thumb, and of the hand and arm.The jury found plaintiff suffered the total loss of use of each of the three fingers for twelve weeks, followed by a partial loss of use of each of the three fingers for 26 weeks, and the percentage of the partial loss was 50%.The trial court rendered judgment on the verdict.On appeal the Court of Civil Appeals reversed the case for failure of the trial court to submit affirmatively and unconditionally a part of plaintiff's cause of action.This action was affirmed by the Supreme Court.

The trial court's judgment awarded to plaintiff cumulative compensation for the loss of the use of the three fingers.The Court of Civil Appeals did not pass on that point.Upon appeal to this Court it was held that because the total loss of use of the fingers was only temporary (for 12 weeks) that it was error to award cumulative compensation for such loss of use; that plaintiff should recover only for the longest period of incapacity resulting from such temporary total loss of use of the three fingers, plus 26 weeks of 50% partial loss of the use of the three fingers for one period only.Recovery was limited to 38 weeks, being for the temporary loss of use of only one finger.

Discussing that part of Article 8306, § 12, which we have quoted above, this Court said:

'The payment, contemplated by the statute, for temporary loss of use of a member of the body is compensation for incapacity and is measured by the duration of the incapacity.When, as in the instant case, an employee suffers concurrent injuries, here injuries to three of his fingers, resulting in concurrent temporary incapacities and he is paid for the injury that has caused the longest period of incapacity, his compensation has been measured by, and payment has been made for, the full period of incapacity caused by the injuries.The weekly payments, if cumulated, would continue well beyond the period of the concurrent incapacities.

'The last part of the paragraph of Section 12 above quoted applies, in our opinion, to permanent loss and permanent loss of use, and not to temporary loss of use, because of the use of the words 'loss or the loss of the use' with no reference to temporary loss of use, and because that portion of the paragraph speaks of the loss or the loss of the use of more than one member 'for which member compensation is provided in this schedule.'The schedule sets out definite compensation for the loss of different members of the body, that is, payments for a specified number of weeks for the loss of each member listed in the schedule, which payments are to be made for the full number of weeks specified, and without reference to any period of incapacity.There is no schedule of payments for temporary losses of use.Compensation for them is measured, as has been said, by the duration of the incapacity.'192 S.W.2d p. 259, 2d col. (9, 10) and (11).

In the case of Texas Employers Insurance Association v. Hollingshead, 1955, Tex.Civ.App., 282 S.W.2d 305, writ refused, plaintiff Hollingshead sued for compensation for injuries of a general nature resulting in total and permanent disability to perform labor.He also sought recovery for specific injuries to his right and left legs, resulting in the total loss of the use of both legs.The jury found that plaintiff suffered a temporary loss of the use of his legs; that he suffered total loss of the use of his right leg for 100 weeks; total loss of use of his left leg for 100 weeks; and a partial loss of use of his left leg to the extent of 20% for an additional 150 weeks.The trial court's judgment cumulated or added together the total number of weeks of loss of use suffered to both legs as found by the jury and granted compensation therefor.

On appeal the Court of Civil Appeals reversed and rendered judgment for plaintiff to recover compensation only for the 100 weeks' loss of use of his left leg, plus a recovery for 20% partial loss of use of that leg for the 150 weeks as found by the jury.

The Court of Civil Appeals followed the case of Texas Employers Insurance Association v. Patterson, supra.Among other things the Court of Civil Appeals said:

'The pleadings and evidence show that the injuries to appellee's legs were concurrent...