158 F.2d 967 | 5th Cir. | 1946
Appellant, C. B. Bryant, a Master Mechanic, was injured in his hips and pelvis while in the course of employment and sought compensation for total and partial disability under the Employees Compensation Act of Texas. The litigation was removed from the State Court into the District Court of the United States. The case was submitted to the jury upon three forms of verdict, to which no one objected. The jury returned their verdict by filling out one of the forms thus: “We the jury
Two portions of the Compensation Act are involved. If- the claim is under Sect. 11 of Vernon’s Revised Civil Statutes of Texas, Art. 8306, the words are: “While the incapacity for work resulting from the injury is partial, the association shall pay the injured employé a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than $20.00 per week. * * This verdict may be taken to mean by the words “partial temporary for 288 weeks with 35 per cent,” that the average wage earning capacity during that period was 35 per cent less than the average wages before injury. The evidence required the conclusion that the wages before injury were at least $100 per week.' An earning capacity of 35 per cent less would be a. difference of $35 per week, and 60 per cent thereof would be $21. But this, being more than $20 that arbitrary uniform limit would apply' by the plain words of the statute and the judgment should have been for that weekly compensation.
Sect. 12 pf Art. 8306, on which the pleadings base the claim for partial disability as well as on Sect.-11, has these words: “The compensation paid therefor shall be sixty per cent of the average weekly wages of the employé, but not to exceed $20 per week, multiplied by the percentage of incapacity caused by the injury.” We think the court applied these words to the verdict, in the order in which they occur, thus: The wages being $100 per week, 60 percent thereof would be $60, but this must be limited to $20, and 35 per cent of $20 is $7. This natural construction of Section 12 had been adopted by some of the Courts of Civil Appeals in Texas, but others had held that the limitation to $20 is not to be applied in the computation, but only afterwards to reduce its result to $20 if over that figure. After the judgment in this case was rendered the Supreme Court of Texas considered these conflicting decisions, and interpreting the Act as a whole has held the latter construction to be the true one. Texas Employers Insurance Assn. v. Holmes, 196 S.W.2d 390. By this decision the Federal courts are bound. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. It indeed accords with and cites the decision of this court in Maryland Casualty Co. v. Laughlin, 5 Cir., 29 F.2d 343. It follows that’under Section 12 the computation should be 60 per cent of $100 equals $60, multiplied by 35 per cent equals $21; which being in excess of $20 must be limited to $20. It is unnecessary to consider which Section applies to this injury, since both are counted on and the result is the same under either. The judgment based on this vei'dict must be for $20 per week instead of $7, with other modifications consequent on that change.
The judgment was entered Nov. 23, 1945. Bryant’s appeal was taken Feb. 16, 1946. On March 6, 1946, more than three months after the judgment was entered, a paper was filed by appellee beginning: “Now comes the appellee herein, Massachusetts Bonding and Insurance Company, and files herein the following cross assignment;” the first assignment being that “the court erred in not submitting this cause under Section 11 and not having the jury determine the issue as requested by appellee with reference to what wage earning capacity Bryant had after his injury;” and the second being that “there was no pleading on the part of C. B. Bryant that would authorize the submission of the cause on the proof offered." Additional record was also requested to be sent up by a praecipe filed at the same time.
This paper is not an appeal, nor filed within the time fixed for appeal, and we find no authority-in the new Rules of Civil Procedure for its filing. They do not
The judgment is reversed in part, with direction to modify it as above indicated.