*1 SURETY AND The AETNA CASUALTY Petitioner, COMPANY, Respondent.
Raymond MOORE, A-8731.
No.
Supreme Court Texas.
July 25, 1962. Rehearing Denied Oct. Bailey Dallas, petitioner. Williams, & for
Yarborough, Yarborough Johnson, & Dallas, respondent. for STEAKLEY, Justice.
This is a Workmen’s case Respondent in which (plaintiff below) al- leged shoulder, his right neck, back, together with shock and body, nerves, entire system. nervous alleged trial any disability incapaci- “that amendment ty from jury question was limited arm therefore awas arm.” The case submitted to jury general injury as a over the ob- jection charge of Petitioner the court did “include a submission to jury whether or involved was any period at of time limited the use the arm and the defendant cifically requests special separate issue in form writing and in charge date added to the submitted to requested special court.” an originally referred to was No. re- quested series of nine and read as follows: you preponderance find “Do disability, that such have found preceding spe- in answer to the issue, cial was limited to the use of the ?” right upon verdict was Judgment disability; this was affirmed total Appeals which of Civil held the Court proper was not requested issue *2 Respondent’s trolling question since his shoul- injury to- injury the not where der and a enumerated occurred injury disability is not but from the whether injury 12, An- specific Section Vernon’s confined to the use of a notated Texas member. Statutes. 350 S.W.2d
Respondent painter injured We' problem is a and was thus have the of -whether falling- ladder; the the from a described he Workmen’s Act limits specific actual being blow as to his shoulder to a injury when the in- expert back. the Herrick, Dr. Richard B. itself is not specific Petitioner, by medical de- witness offered enumerated in Section 12 of Article place scribed injury slight evul- where the disability of as “a therefrom sion or a on the is limited chip small bone fracture of to the use of an enumerated interior cific not, socket of glenoid point surface of the member. We out that and as shoulder.” He also described a marked acknowledged by for Re- counsel spondent swelling of oc- on the oral argument, entire shoulder injured em- ployee Respondent; casion an of examination will be subject of nothing to a take however, expert judgment opinion was- the if he is unable to establish a loss witness earning would af- capacity, the- shoulder notwithstanding the fect only, state- right use his that he has suffered a disability in the being probably ment thought specific that “I loss he aof member. per permanent par- would have fifteen cent principally Petitioner relies on the case disability tial of his arm” which would of Coleman Hartford Accident In “be inclined part to affect other demnity Co., Tex.Civ.App., 297 S.W.2d body.” specific wr. ref. This case involved a hand, Schalck, by the arm (although On other Dr. M. A. not shown expert medical witness offered the record dis Respondent, closes that severe) testified that resulted from he found Respondent burns to the arm also had trouble in lumbo- between the wrist and shoulder), joint, sacral and the holding and testified in some detail the case is trouble; concerning opin- “if evidence shows that the other was his portions Respondent ion that had suffered an claimant’s were not impaired except the lower of his as affected back. member, particular of use of the conflicting testimony medical there would be no presented question, a fact witnesses on impairment allowed for the other express e., opinion, i. which we whether portions body.” of claimant’s Petitioner Respondent’s disability or was urges holding the extension the use of arm. How- situation in the instant case where the ever, testimony it is clear from the of both specific is not ato witnesses, Respondent medical and from Respondent, hand, himself, on other cites the (as distin- itself Appeals, opinions guished disability) from the Courts noticed, and draws the issue in this Respondent’s was not confined later “In order to be Employers’ manner: for See Texas Insurance arm. specific member there are Sevier, Tex.Civ.App., confined to Assn. v. Indeed, (1) elements: The first is necessary writ ref. n. e. two r. Respondent’s must be confined to the allege did not member, (2) that some point Its of error here is that arm. capacity member must re- quoted was entitled the defensive * * * emphasis, again But phrased in sult. terms as above — repeat injured workman that to distinguished the con- confine —because pensated as unless ‘injury’ compensation, sub classify specially con- statutes same both be must well as It follows ject specific compensation. member.” *3 fined bar, Lowery com must be that in case at view, not Respondent’s we would Under pensated general injury as unless for a to question reach the of com statutory authority to can find some arm whether Respondent’s and the use of pensate specific injury.” him for a Spe- was entitled to di 2, Although was has been No. not cial Issue since the here, rectly presented of Respondent’s right arm. the Courts to Appeals appear to have considered pertinent portions of Section The that actual 8306, Article read as follows: of prerequisite injury compensation. to example, Employers’ Insur For in Texas injuries “Sec. 12. For the enumerat- Chitwood, Tex.Civ.App., 199 ance Assn. v. em- following schedule the ed 806, history, no writ the court ployee shall lieu all other receive in compensation aid, hos- except medical maxi- “This contention is pital medicines as else- services and mum it was for in was liable event weekly com- provided, where herein weeks allowed 200 weeks instead of 300 sixty pensation equal per (60%) cent judgment. This contention is weekly wages average theory based on the that the effect of employee, not less Dol- but than Nine permanent and per exceeding nor Thir- ($9) lars week plead- leg. Plaintiff’s one ty-five per week, ($35) for the Dollars ing covered a as well respective periods herein, stated to wit: leg. injury to the From compensation was for 300 court never weeks and the found “For an arm above loss of at or cific to be inferred elbow, sixty per (60%) cent trial court found a average weekly wage during two specific partial injury rather than a hundred (200) weeks. leg. plaintiff The joint. There was a rather severe permanent partial “In all cases of joint. hip to the suf- incapacity it shall be considered that leg de- loss of fered loss of use of the gree the result direct to, equivalent member is and shall draw leg but the result as, compensation the same the loss of joint.” hip (Our emphasis.) member; compensation Indemnity provided in and said schedule shall also Millers’ Underwriters See Cahal, 957, Tex.Civ.App., in lieu all other 257 S.W. v. Jones, Maryland Casualty such cases.” v. Tex.Civ. Co. 668, App., each with writ his 73 S.W.2d This Court in National said Mutual Cas tory. Lowery, 188, ualty 136 Tex. Co. v. 148 S.W. 1090, “A prevailing 2d view of the courts reading of The contrary. our 8306 of Workmen’s Laws states The Su other Roper compensable will disclose that it preme divides in South Carolina Greenville, into juries (a) two main classes: 99 S. General Kimbrell S.C. injuries, specific injuries. appeal by (b) the insur As we considered E.2d opposite interpret pertinent provisions position asserting of Article carrier ance here, compensable e,, injuries all of Petitioner i. must be corn- n specific injury brain, error award was because severed close to- the or its func- n finding partial disability destroyed “the each so as to result in blind- n permitted ness, cannot be stand although because nothing whatever directly there is eyes no evidence of an been done to the or to themselves arms.” rib immediately surrounding consisted of the structures separation them, yet fractures joint be in common would be said speech eyes tween the collar injured bone and the shoulder. that his had been “par point Court held “loss of use” and of uselessness. Whatever tial loss of use” in the South Carolina of the human thus has been *4 specific injury every simple, incapable statute “are made of so its normal use day, unambiguous words, practically and are be that to it has be ceased to given ordinary, accepted generally purpose their' for available for it which meaning. adapted, 72- was Nothing certainly injured in Section ac- 153 relating cording or elsewhere in the to understanding statute to the common of workmen’s suggests restric men.” of par meaning their to total such or Stanley Co., v. United Iron 160 Works tial loss of use as has di resulted a from 243, 708, by Supreme Kan. 160 P.2d rect to The the member itself.” Kansas, of Court a considered head pointed Court then out “It is set well resulting impairment sight eye in of in one made, tled that may award under Section hearing in both for which ears 72-153, loss, use, or loss of of a jured employee specific injury recovered member, though showing there be no compensation. ap- contentions The of injured employee has of suffered loss employer pealing are stated Court earnings earning capacity.” or of Thus the follows: injured employee to was entitled establishing without of “Appellants further contend un capacity earning resulting disability to less an accident results in an di in directly itself rectly affected organ’ member or jured. there can be no for scheduled injuries. Baldly stated argument their Burns, case In re 218 Mass. employee if is struck on the 601, by Supreme 105 N.E. Judicial head is injured to the extent such Massachusetts, involved an Court award results in loss of upon specific injury basis of member, if or he scheduled suffers both legs from an in- spine to his which causes a spine spinal causing cord permanent partial paralysis of some paralysis lower limbs. The insurer organ, member or com- Roper, supra, contended in this case as in pensable scheduled the award was erroneous because there body, place which comes in di on no legs feet rect contact with the blow. We con denying contention, In themselves. us, findings fess that under such as in we have the contention is speech startling “In common the word a new and one. So new that 'in- applied personal in jury/ know of case this state we where being, urged. human includes had been fact that the whatever change appellants in sys- lesion or counsel for cite no learned produces pain support equally harm or it while tem or a less- decision facility appellee counsel for fail to di ened the natural use learned bodily activity capability. refuting attention one rect our one . by optic to us that there are external violence had his indicates none. So nerve r whether, namely, matter of terpoints, and fa aas significance startling its procedure, that, the lan lost its reaching view effect statute, are in the fact submission of the issue guage applicable requested of a series first one is the the form inclined wonder sep- single request, temerity to nine than as a rather anyone time has arately. particular think not under suggest possible the it. Is it Work We Compensation here. is so limited circumstances men’s Act scope so.” ? do not think its We Gifford, Tex. et al. v. Edwards tests established the un agreement with the are in We way be con- in such a as to “intermingled cases foregoing reasoning of derlying special more fusing” and “If one or spirit be done to the that violence would not be issues en masse should and intent of Workmen’s given,” problem of resolving the com- are specific injury provisions Laws if the pliance and with former statutes in recovery to to limit such construed present Rule Texas Rules *5 specific mem direct stances of tests, Implicit as Procedure. in these hold ber, principally in the fact case, protection in the cited stated recovery by an preclude would otherwise against judge having a “to search trial a injured employee compensation for through requested issues and submit specific not resulting injury to a proper those which are those and refuse directly when in the accident involved also, may add, improper”; which are we a employee to establish injured is unable purpose protecting a there is the trial earning capacity. The loss judge against the deliberate concealment clearly seem adopting view are would we so, proper many issues with the among not purposes more consistent with the to be judge burden on the trial to ferret out the its Act in our Workmen’s proper protect against issue to case compensation injured an provision for are agreement reversal. in full with We use, loss, employee or the loss of foregoing and hesitate to member, regardless ques specific of the uphold case these tests the instant were capacity. impairment earning to his tion of opinion they we are determina- Traders & Insurance Co. See General here. tive Maxwell, Tex.Civ.App., 142 S.W.2d true, by urged Respondent, It as dismissed, in which was writ Special duplicated requested Issue Is- No. court; was, thus given by “The statute denominates No. 1 as sue member, however, or its requested the loss of loss of such related to Issue No. So, pro- use, partial incapacity. improper and was not issue which Moreover, therefor the law viding given. have been should not conclusively presumes requested the loss intermingling was no there confuse, use of a member designed such which or or issues in- rather, has sustained confusing; workman issues it is capacity, and for that reason held ques- a series of which Issue 2 in were No. specific injuries that it integral part. per- cases of are tion was We necessary show that court was not is not suaded the trial misled by request resulted therefrom.” in fact confused form of the has but series because he did agree refused hold, then, that as matter theory We Petitioner’s of the case and of the view that crucial Issue Petitioner was entitled to No. law, substantive requested Special requested by improper; Petitioner was Issue submission turn, have This, ques us to is the resolved brings 2.No. contrary forepart opinion. by Respondent by in the is raised coun- which and judgments separate parts body. of the District If the Court’s Appeals opinion followed, of the Court are reversed of Civil then a workman who sustains a cause remanded. his shoulder
could be limited to a for a injury to the arm. GRIFFIN, JJ., SMITH dissent.
Moore, injured workman, under the facts in this pleaded could not have ON REHEARING MOTION FOR proved specific injury Of alone. Rehearing denied. course, plaintiff may plead prove specific injury parts extended to other body and, thus, general injury, become a SMITH, (dissenting). Justice this is the first instance where a claim- dissenting heretofore deliver- ant deprived could be of a for a following and the ed is withdrawn substitut- injury merely possible on a ed therefor. finding suffered was body. limited to a member of the respectfully None of the evi- dissent. Ray- places dence sustained Aij examination of Section of Article category mond Moore will reveal that an such as petition upon injury. The which testified to doctor, the insurer’s own direct, allegations contained no went trial doctor, well as Moore’s which is the basis of otherwise, pos- alternatively or could which suit, is not classified as a *6 sibly afford the basis for a due to a fact, jury. In classify the insurer does not Legislature specific injury to The the arm. arm, injury specific the injury as a to the compensable injuries into two has divided except in the sense that the wants trier specific. general main classes: and The of the facts to find disability, any, that if petition described in Moore’s clear- was limited to the use of the arm. injuries. ly general fall in the class of agree with Moore that injured' to confine followed, majority every the rule of the specific compensation, (cid:127)workman to the in- future, injured person no matter if jury as well as the incapacity must both be action his cause of to a confine facts specific to the member. compelled injury, be to run the will general very first issue in The a Com- Workmen’s recovery for to a losing risk pensation injury, case either assumes disability as a result and total undisputed, inquires the facts are or wheth- solely on the defense injury of such plaintiff er or not sustained an accidental specific mem- limited to a disability was employment. course of his injury in the In ber. pleaded case, plaintiff general in- a plead jury and the first issue submitted to case did not in this a insurer * * * jury “Do until was: find as a defense it filed a specific [the] by Raymond' plead accidental sustained Neither did it Amendment. Trial * * Moore on March This- arm was the sole cause of injury to the undisput- assumed injury because the pleading, alleged: it was incapacity. In its “ * * * disability general injury. reality, ed facts showed a In incapacity [T]hat position the insurer’s can be this case accidental to narrowed the contention Moore re- question was limited to the injury in * * incapacity ceived allegation sup- member as the This has no general end result a injury. This is not unless the words “arm” port in the evidence law, course, and never has synonymous. Of been. a are Where “shoulder” claimant only general sustained a They injury. different and are two they are not. a measuring standard for he reduced such an cannot sustained, jury find- for the injury actually a specific injury merely because of general limited the shoulder? ing that the suffered disabil- the ab- recoverable for the In use of ity by suffered from the pleadings proof of an Moore sence of including evidence occasioned specific member, all the and where Bumpus defense or function only general injury, of his arm. See: shows Mo.App. Co., effect embodied in Massman Construction issue to (1940), S.W.2d 458. claimant’s can loss of use of the although The holding this Court is pres- never be This is true available. concededly statu- falls within pleadings simply ent case because all of the tory definition general injury, of a neverthe- Moore conclusively show less, may compensated be as a aas general sustained a as well injury. question This must be decided have ex- which could incapacity, light of the evidence. statutes and the Moore tended to the loss arm. of use of his Our “damage statute defines plead did had sus- affirmatively that he body harm physical structure of the arm, tained an injury to but neverthe- naturally and such diseases or infection as less, permit proof his pleadings and result therefrom.” See: Section him to If his general injury. recover for a only This definition of can arm was affected of the result requires construed to mean that it shoulder, proof all the damage body portion or harm to the abundantly more supports finding of the to the arm the claimant. —here general injury. that he had sustained a Despite explicit definition, statutory words, In other if the shoulder was the Court has chosen to follow from other cases injured, re- which was then jurisdictions where “injury” the term is not gardless results, general injury. is a defined statute. compel Court’s *7 will the trial speaks Section 12 of Article in terms 8306 courts, future, to submit sole cause injuries disability. and not in terms of every issues may on member that says: The section “For the enumer- become involved general result of a * * following ated in the schedule It general injury whether such be to say: does not “For the enumer- disabilities shoulder, back, the hip. the the head or the ** following schedule ated the affirmatively Since the claimant did not added) This plead (emphasis Court does have arm, to the and since to rewrite the This prerogative the statute. the wholly defendant plead failed to to do so limit prove especially true would is where arm, and since recovery in- general the there Claimant’s arm, was no sustained to the jury that allowed for an there was no basis for the defense that principle It is a fundamental claimant’s cific incapacity solely the result of cases that an must incapacity to the arm. All of the evidence incapacity the issue of established before this case was to the effect that the recovery under any the Act is author- was to other the shoulder. Since there source of the claimant’s in- the ized. arm, the trial court capacity grows general injury out of a properly refused to requested submit the thereof, nerves which af- issue. How can or the successfully it be the argued that the (here, arm), amount of the extremities then allowed under fects Section incapac- general his trouble is for the loss of use the source of the arm any specific. can be in sense the ity sole issue was' n none-
(cid:127)' Insur Employers’ te this In the Texas case of Tex.247, Brownlee, properly ance theless Association v. refused. Rule 279 of provides Texas Rules Procedure' this Court of Civil “ * * * the use words, the court “In other if the loss shall submit controlling plead- solely- resulted issues made the written hand n "* * respondent ings and also (See the evidence fingers, recovery to 277). Here, Rule would he in his there is no evidence pro- support requested special will provision which 'that of the statute inquired: you preponder- “Do compensation in the event find from a vides for of, ance disability, of, of the use evidence that such or the loss any you added) preced- have found in (emphasis answer to the fingers.” issue, ing right- was limited to the use of held in Brownlee We ” arm? indisputably showed solely “to the hand was due True, expert, Aetna’s medical Dr. made to said members.” We “ ** Herrick, Richard B. stated that he it clear that the ultimate issue where thought perma- (Moore) would have 15% cause,” issue is raised is the issue “sole nent disability of his arm” which here requested issue a matter which would not “be other inclined to affect nothing in embody. wholly There is fails to body.” of his From this one statement sub- this case which authorize majority concludes that the shoulder claim- mission of a “sole cause” issue. injury would affect the use of his entitled, ant, clearly to. Moore, is only. However, majority opinion com- con- not be and should pletely disregards other testimony direct specific injury recovery since fined ato patient Dr. Herrick.1 He “The stated: from the origin of his trouble is could not and would not move his shoulder arm. his shoulder and not to his in any symptoms direction reached assuming that the Court has were entirely Even to his application stated, law “I proper reservation, result in Without Dr. Herrick witness, isfactory range motion, although was still last fifteen ternal pain impossible ing patient could not and would not move toms were shoulder, tions. was—this Ms shoulder evidence out in the refused disability When “* Key to “ * n n “ length * n shoulder of the entire shoulder rotation [*] all Dr. some restriction *8 Testimony: once and he and one inch [*] n to conclude that skin over an area three inches degrees time there was marked swell- limited Ms uphold Herrick, A. He continued to a. more and this time there was day At that time his was I have examined the testimony in all directions. entirely quite issue, or two direction. developing considered, proposition, of motion in on certain mo painful. and discolora- arm. width. there afterwards, of Aetna’s Ms Moore’s symp- there right have sat- In- set your evaluation any permanent disability his shoulder what was prognosis ? reached my feeling shoulder. would in what right arm.” some ably have some ability to spect saw time? timate bility, n “A. “ * * n n “ * “Q. q Now, Doctor, with re- “A. “A. my saw him in permanent disability to his shoulder affect Ms Doctor, office and so was unable to es- his Well, And I him parts thought it would progress thought as to his February q Now, Doctor, point where last in shoulder. of his how right patient respect temporary his condition patient and whether he had would it affect arm, the use of prognosis at your he never returned the time would it be— patient have— to that disa- not. in his would loould at the time total dis- evaluation respect what at that well, It was prob- right have him, was Ms n point patient thought had reached dis-
where he would have some testi-
ability in his shoulderThis was
mony contradicted, and it never the doctor
only after these statements disability in injury and
concluded that the “ * * * affect the shoulder testimony
use of his arm.” When this ma-
is considered with relied on
jority’s for me opinion, impossible it is supporting
agree that there evidence disability effect that Moore’s Certainly, there limited to his arm. disability arm, there disability absolutely no evidence that the
suffered was “limited” to consequence
disability to the arm Was in the shoulder. refused; properly opin-
The issue was Appeals
ion of the Court of should
affirmed.
GRIFFIN, J., joins in this dissent. Texas, Petitioner,
The STATE Kingham KINGHAM, Conoco L. Glenn d/b/a Respondent. Station, Wilson, Gen., Atty. Lane, Will Sam Asst. Atty. Gen., Turlington, Austin, M.C. No. A-8876. petitioner. Supreme Texas. Callahan, Houston, Donald for re- W. Oct. spondent.
GRIFFIN, Justice. heretofore handed down is
withdrawn. brought
The State of Texas this suit Kingham Glenn L. against the 98th Dis- County, Texas, of Travis trict Court unemployment delinquent in the sum of contributions $305.94