Maryland Casualty Co. v. Foote

GRISSOM, Justice. In a workman’s compensation case plaintiff, Elvis Foote, recovered judgment against the defendant, insurer, for 50 weeks’ total incapacity and 100 weeks’ partial incapacity. From the judgment defendant, Maryland Casualty Company, has appealed. Plaintiff’s petition contained the usual preliminary allegations in a workman’s compensation case. He further alleged that on August 15, 1938 while plaintiff was employed by and working for H. L. Rice, the insured, and while engaged in his regular course of employment and in furtherance of the business of his employer in Taylor County he was injured; he alleged the injury and the manner of its occurrence in detail,.and that as a result of said injury plaintiff was totally disabled for performing labor for a period of 100 weeks, with a subsequent partial disability of 75 per cent and that said partial incapacity was permanent. Section 3 of plaintiff’s petition was as follows: “That plaintiff was employed at the time of said accidental injury as a laboring hand and performing the usual tasks of a laborer for his employer and plaintiff was being paid a wage of $2.40 per day, working 6 days a week, that the class of work that plaintiff was doing he had been so engaged in the same or similar kind of work, wheth-" er for the same employer or other employers, for the whole or substantially the whole of the year next preceding the date [603] of said accidental injury on the 15th day of August, 1938, and had drawn an average daily wage of $2.40 per day for the whole or substantially the whole of the year next preceding the date of said accidental injury and his annual income had been $720 covering the whole of said year next preceding the date of said injury, that plaintiff’s compensation rate should be calculated under Subdivision 1, Section 1 of Article 8309 on the basis of plaintiff’s annual earnings for the year next preceding the date of said accidental injury. “Plaintiff pleads in the alternative and says that if it should be determined upon the trial of this cause that he had not been continuously employed for the whole nor substantially the whole of the year next preceding the date of said accidental injury and that Subdivision 1, Section 1 of Article 8309 could not be applied, then plaintiff says there were other employees doing the same or similar kind of work in the same neighborhood as that of plaintiff at the date of such injury who had been so employed for the whole or substantially the whole of the year next preceding the date of the 15th day of August, 1938 and whose average daily wage had been $2.40 per day, or $720.00 annual earnings- and that plaintiff’s compensation should be calculated in that event under Subdivision 2, Section 1 of Article 8309 on the basis of such other employees wage rate. “But, plaintiff further pleads in the alternative and says if it should be determined upon the trial of this cause that Subdivisions 1 nor 2 of Section 1 of Article 8309 could not be applied, then plaintiff says that on account of the shortness of the length of time that he had been so employed by his employer which was less than substantially the whole of the year next preceding the date of said accidental injury, then and in that event plaintiff’s compensation should be calculated under Subdivision 3, Section 1 of Article 8309 in such way and manner as would be just and fair to all parties concerned; but plaintiff would show that on account of the nature of his injury that he is entitled to 100 weeks total compensation at the rate of $8.31 per week, with a 75% partial disability for a period of 300 weeks beginning at the expiration of said 100 weeks and that plaintiff is entitled to $6.24 per week for a continuous period of 300 weeks.” To said section 3 of plaintiff’s petition, the defendant excepted as follows: “Defendant specially excepts to said plaintiff’s first amended original petition on the ground that Section ‘3’ thereof, which is composed of three paragraphs, alleges conflicting grounds for recovery in attempted alternative counts, and fails to expressly or by reference group into separate counts the particular and consistent facts warranting any certain or definite relief sought and such paragraphs so grouped present alleged rights of the plaintiff to a judgment on conflicting theories which should be in separate counts. “Wherefore, defendant prays that such portion of plaintiff’s said amended petition be stricken and dismissed, and that said petition as a whole be dismissed.” ,Said special exception, or demurrer, was overruled. Said action of the court is made the basis of appellant’s first proposition. In support of said proposition and as authority upon which defendant relies for the reversal of the judgment, for said reason, defendant cites Moore v. Rice, Tex.Civ.App., 80 S.W.2d 451; Jennings v. Texas Farm Mort. Co., 124 Tex. 593, 80 S.W.2d 931; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031. We are of the opinion that the court did not err in overruling the exception. It will be observed from reading the petition that plaintiff alleged the injury and the facts common or necessary to a recovery under any of the three subdivisions of Art. 8309, relative to the -manner of fixing the compensation rate. Thereafter, in section 3 of his petition, in separate alternative counts, plaintiff alleged facts bringing him within each of the three subdivisions of Art. 8309, fixing his wage rate. The proposition is overruled. See Pryor & Wilson v. Moody, Tex.Civ.App., 49 S.W.2d 506; Davies v. Texas Emp. Ins. Ass’n., Tex.Com.App., 16 S.W.2d 524, 525; Texas Emp. Ins. Ass’n. v. White, Tex.Civ.App., 32 S.W.2d 955, 958; Traders’ & Gen. Ins. Co. v. Williams, Tex.Civ.App., 66 S.W.2d 780, 784; International & G. N. Ry. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, 517; Traders & Gen. Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, 433; Hartford Acc. & Ind. Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605, 606; Indemnity Ins. Co. of North America v. Bailey, Tex.Civ.App., 50 S.W.2d 484, 489; Traders & Gen. Ins. Co. v. Rouse, Tex.Civ.App., 39 S.W.2d 80, 81; Morris v. Sanders, Tex.Civ.App., 55 S.W.2d 594. [604] Defendant’s second proposition is as follows : “The evidence in this case being' insufficient to prove that appellee suffered any total incapacity for work, but showing on the contrary that appellee did not suffer total incapacity, the District Court should have sustained appellant’s exceptions to the court’s charge referable to the issues touching upon total incapacity and should have refused to enter judgment for appellee for any compensation based on total disability.” An examination of the evidence convinces us that there is testimony raising the question of plaintiff’s total incapacity. There is evidence that during the time plaintiff was found to be totally incapacitated he did some work. Plaintiff testified, in substance, that he did some wo'rk during the period of total incapacity found by the.jury when it was very painful for him to do so, for the reason that he felt compelled to do the work in order to maintain and support his family. We think the evidence raised the issue and brings it within the discussion of the subject in the following authorities: 45 Tex.Jur. 589; Davies v. Texas Emp. Ins. Co., Tex.Com.App., 29 S.W.2d 987. Defendant’s second proposition is overruled. The defendant contends that the answers of the jury are in irreconcilable conflict and cannot support the judgment rendered. In view of the fact that the judgment must be, for the reason hereafter stated, reversed, it is unnecessary for us to determine this question, as it will probably not arise upon another trial. However, we will briefly call attention to the situation disclosed by the record. In answer to issue No. 5 the jury found that Foote became totally incapacitated on or about August 15, 1938. In answer to issue 7 that Foote’s total incapacity began August 15, 1938; in answer to issue 8 that plaintiff’s total incapacity had not ceased at the time of the verdict, to-wit, April 5, 1939; (9) that Foote would be totally incapacitated for 50 weeks. (According to our calculations, 50 weeks of total incapacity from August 15, 1938, would result in total incapacity to July 24, 1939.) With reference to partial incapacity the court submitted issue 10 as follows: “From a preponderance of the evidence do you find that Elvis Foote’s incapacity for work, if any, since August 15, 1938 has not been partial incapacity, as that term is defined to you in subdivision (d) of this charge? Answer: ‘His incapacity has not been partial’, or ‘His incapacity has been partial.’ ” The jury answered “His incapacity has been partial.” Issue 11 was “From a preponderance of the evidence give the date that Elvis Foote’s partial incapacity begun, if any.” (Italics ours) The jury answered “August 1, 1939.” In answer to issue. 12 the jury fixed the number of weeks of Foote’s partial incapacity at 100 weeks. Issue 13 was “From a preponderance of the evidence do you find that Elvis Foote’s partial incapacity, if any he has, will be permanent?” The jury answered “Yes.” Issue 14 was “From a preponderance of the evidence what percent of partial incapacity to work has or will Elvis Foote suffer, if.any?” The jury answered “50 percent.” Construing the verdict of the jury as a whole and in connection with the pleadings, it is perhaps susceptible to the construction that the jury intended to find that Foote became totally incapacitated on August 15, 1938, and that his total incapacity would continue from that date for a period of 50 weeks, and (in connection with issue 11, wherein the jury found, on April 5, 1939, that Foote’s partial incapacity “begun” August 1, 1939) that Foote’s partial incapacity would begin thereafter on August 1, 1939. This, according to our calculations, would have the period of total incapacity ending on July 24, 1939, and the period of partial incapacity beginning about one week thereafter, on August 1, 1939. This was probably the result of a miscalculation of the number of weeks in the period mentioned. Another problem is presented by the answer to issue 12, that the number of weeks of Foote’s partial incapacity is 100 and the answer to issue 13, that Foote’s partial incapacity will be permanent. It is apparent that the findings that Foote will be partially incapacitated for 100 weeks and that his partial incapacity is permanent are in conflict to the extent of the finding of partial incapacity after the end of the 100 weeks’ period. However, no judgment was rendered as to said period, and, as to partial, or 50 per cent incapacity, the judgment was only for 100 weeks. The judgment apparently is in accord with the decision of our Supreme Court in Fidelity & Cas. Co. v. McLaughlin, Tex.Sup., 135 S.W.2d 955, 958. [605] Issue No. 14 was “From a preponderance of the evidence what percent of partial incapacity to work has or will Elvis Foote suffer, if any? Answer in percent, letting 100 represent total.” The jury answered said issue “50 per cent.” It is contended that the issue is duplicitous, having reference particularly to the words “has or will.” The only authority cited by defendant is Traders & Gen Ins. Co. v. Shelton, Tex.Civ.App., 130 S.W.2d 903. In the Shelton Case, in connection with a similar issue, the jury was instructed as follows: “If you find from a preponderance of the evidence that he has not or will not suffer any partial incapacity, let your answer be ‘No,’ otherwise you will answer ‘Yes.’ ” As we understand the opinion in the Shelton Case the submission of the issue was held to be reversible error because of the instruction accompanying the issue. In said opinion it is pointed out that such submission of the issue, in the absence of such explanation or instruction, had been many times held nof to be the submission of a duplicitous issue. Such cases so holding are: Traders & Gen. Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, par. 11; Fidelity & Cas. Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780, par. 13; Maryland Cas. Co. v. Brown, Tex.Civ.App., 110 S.W.2d 130; Traders’ & Gen. Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837. The proposition is overruled. In issue 5 the court inquired whether Foote became totally incapacitated on August 15, 1938. The jury answered “Yes.” Following issue 5 the jury was instructed that it was to answer issues 6 to 9, both inclusive, only in the event it answered issue 5 “yes.” Said issues; so conditionally submitted, inquired: (6) Whether Foote’s totai incapacity was the result of the accidental injury of August 15, 1938 (answered, yes); (7) when Foote’s incapacity for work began (answer: “Aug. 15, 1938”); (8) the date total incapacity ceased (answer: “Has not ceased”); and (9) asked the jury to fix the number of weeks of total incapacity. The answer to issue 9 was “Fifty Weeks,” In issue 10 the jury was asked whether Foote’s incapacity for work “since August 15, 1938 has not been partial.” The jury answered: “His incapacity has been partial.” Following issue 10 the court instructed the jury to answer issues 11 to 14, inclusive, only in the event it found Foote’s incapacity “has been partial.” Said issues, so conditionally submitted, inquired: (11) The date partial incapacity began (answer: “Aug. 1st, 1939”); (12) asked the jury to fix the number of weeks of partial incapacity (answer: “100 weeks”); (13) whether Foote’s partial incapacity would be permanent (answer: “yes”); (14) what percent of partial incapacity did Foote suffer (answer: “50%”).' The defendant objected to the conditional submission of said issues 6 to 9, inclusive, and 11 to 14, inclusive, and further objected to them upon the ground that said issues were upon the .weight of the evidence. We .call attention particularly to issue No. 10 in which the question was asked whether Foote’s incapacity since August 15, 1938, “has not been ’partial”, and the answer of the jury thereto that his incapacity “has been partial”, and the conditional submission thereafter, in issue 13, of the question whether Foote’s partial incapacity was permanent. The jury found plaintiff’s partial incapacity was permanent and, in answer to issue 14, that plaintiff’s partial incapacity was 50 per cent. In Southern Underwriters v. Wheeler, Tex.Civ.App., 108 S.W.2d 846, 851, by its special issue No. 5, the court submitted the question whether Wheeler was partially disabled after the period of total disability ceased. The jury answered that issue “yes.” In answer to special issue No. 6 the jury found that Wheeler’s said partial disability amounted to 50 per cent. Special issue No. 7 inquired whether Wheeler’s said partial disability was permanent. This issue was submitted conditionally, that is, to be answered only in the event that in answer to issue 6 the jury had found Wheeler was partially disabled after the period of his total disability ceased. Issue 7 was answered, the jury finding Wheeler’s partial disability was permanent. The conditional submission of said issues was objected to by defendant. The court of civil appeals held that such conditional submission did not constitute reversible error. The Supreme Court held that it was reversible error. We think there is no ground for distinction between the situation in the Wheeler Case and that heretofore pointed out in detail in the instant case. We are, therefore, constrained to hold that such conditional submission constituted reversible error. Also, see Traders & Gen. Ins. Co. V. Wright, Tex.Civ.App., 95 S.W.2d [606] 753, affirmed 132 Tex. 172, 123 S.W.2d 314, 315, wherein the Supreme Court said: “Plaintiff Wright pleaded both total and partial disability, the latter alternately. Defendant pleaded only a general denial on the merits of the case. There was evidence to support both issues as well as the related issues of temporary total and temporary partial disability. The related issues need not be noticed further since the manner of their submission will be controlled by the principles applicable in submitting partial disability presently to be discussed (Italics ours). In the Wheeler Case “the primary issue inquiring whether partial disability resulted after total disability had ceased, was correctly submitted unconditionally” by issue 5, 132 Tex. 350, 123 S.W.2d 340. In the instant case, by issue 10, the issue of partial incapacity was submitted unconditionally. In the Wheeler case the question of whether Wheeler’s partial disability was permanent was conditionally submitted by issue 7. The jury answered the issue “yes.” In the -instant case, by issue 13, the question whether Foote’s partial incapacity would be permanent was submitted conditionally. The jury answered the issue “yes.” Relative to this situation in the Wheeler Case the court of civil appeals said [108 S.W.2d 851]: “It is the preamble to No. 7 that is complained of. We repeat: ‘If you have answered special issue No. 5 in the affirmative, then you will answer this issue, but if you have answered special issue No. 5 in the negative, then you need not answer this issue.’ That is to say, if the jury should find there was a partial disability after the total disability ceased, then they should determine by answer to issue No. 7 whether or not that partial disability would be permanent. This preamble also meant that, if the jury should find under special issue No. 5 there was no partial disability after the expiration of the plaintiff’s total disability, then they need not answer No. 7. We fail to see how defendant could possibly be harmed by this preamble. It was only in the event there was a partial disability period to follow the total disability that No. 7 should be answered at all. If such a period did not exist, defendant would not be liable for compensation, and, if such a period did come, as was found by the jury, then and only then, would defendant be interested in whether or not the disability was permanent or temporary. No. 5 was answered in the affirmative, and the jury therefore answered No. 7 and gave defendant everything it could have gotten had the preamble not preceded the issue.” Relative thereto the Supreme Court said 132 Tex. 350, 123 S.W.2d 340, 341: “In the present case the primary issue inquiring whether partial disability resulted after total disability had ceased, was correctly submitted unconditionally; but the secondary issues inquiring respectively whether the partial disability, if any, resulting after total disability had ceased, was permanent, or was temporary, were submitted conditionally, the jury being directed in the respective preambles to the special issues to answer same conditioned on how it had answered some previous issue. “The decision in the Wright Case is controlling here. The secondary issues referred to are the converse one of the other, not opposite one to the other, and both should have been unconditionally submitted. The fact that the primary issue was submitted unconditionally did not obviate the necessity of submitting unconditionally the secondary issues. The restriction imposed by the condition stated in the preambles should have been eliminated upon objection urged in the trial court, and affirmance of the judgment predicated upon conditional submission of the issues constitutes reversible error.” The case of Traders & Gen. Ins. Co. v. Stakes, Tex.Civ.App., 131 S.W.2d 270, writ ref., relied upon by the plaintiff, is distinguishable from the Wheeler and the instant case as suggested by Judge Taylor in the Wheeler Case, by the fact that the issue of partial incapacity in the Stakes Case, unconditionally submitted, was answered in the negative. The opinion of Justice Higgins in the Stakes Case recognizes the decision in the Wheeler Case, as heretofore interpreted by us, and plainly rests its decision upon such distinction. The other cases cited by the plaintiff are thought not to be directly in point, but whether they are or not, we are bound by the decision of the Supreme Court in the Wheeler Case. The judgment is reversed and the cause remanded. Rehearing denied.