This аppeal is from a judgment awarding workmen’s compensation, to W. G. Howie for disability resulting from an injury sustained by him in the course of his employment, on March 4, 1934.
The jury found that Howie was injured on Mаrch 4, 1934; that he was totally incapacitated, and that such incapacity was not permanent, but was for a period of 401 weeks; that said disability was partial and was SO per cent, partial “as compared to total disability,” and was permanent, and would extend for' 401 weeks.
Upon those findings the court rendered judgment awarding compensation to Howie for total incapacity from March 4, 1934, the date of the injury, to August 1, 1934, and f.or 50 per cent, partial incapacity for 300 weeks, beginning at the latter date. Maryland Casualty Comрany, the insurer, has appealed.
Both parties complain of the judgment, apрellant by proper and timely assignments of error and appellee by propositions based upon no assignments of error and propounded for the first time in this court.
Apрellant first contends that the answers of the jury to the issues of the degree and duration of appellee’s injuries are in irreconcilable conflict, and therefore cannot support a judgment. The jury found that appellee was both totally and partially inсapacitated, that the total incapacity was not permanent, while the рartial incapacity was permanent, and that both disabilities, one permanent аnd the other not permanent, would extend for the same period of time, to wit, 401 weeks. Under the findings upon total incapacity, appellee would have been entitled to an award for a specific sum weekly for 401 weeks, whereas, under the findings upon partiаl incapacity, he would have been entitled to a specific, but smaller, sum weekly fоr a shorter period of time. The court rendered judgment applicable to neither set of findings. We are of the opinion that, regardless of the technical question of the conflict between the several findings of the jury, the intention of the jury' cannot be ascertained in this case without resort to conjecture, which is beyond the province of а court in giving ef-
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feet to contradictory or obscure findings of juries. West Lumber Co. v. Keen (Tex.Com.App.)
But, aside from this conclusion, the trial court erroneously gave effect, in part only, tо both sets of findings. For that reason, if none other existed, the judgment cannot stand, and the errоr, being apparent of record, is fundamental, requiring that notice thereof be takеn by' this court, although not specifically assigned.
In submitting the case to the jury, the trial court charged them generally “to answer the questions hereinafter set out according to the fаcts as you have found them to be from the preponderance of the evidence, and this alone.” This instruction was followed by the several questions, each submitted separately, without reference to the preponderance of the evidencе or burden of proof. Appellant objected to this form of submission upon the ground that thе same wholly disregarded the burden of proof. It has been finally and definitely established in this statе that the right of a litigant to have the jury properly instructed on the burden of proof is a vаluable one, and is not sufficiently protected by a general charge, such as that given in this case, that the questions to be propounded to the jury must be answered upon a рreponderance of the evidence. Texas Employers’ Ins. Ass’n v. Lemons (Tex.Sup.)
Other questions are raised in the appeal, but it is presumed they will not arise upon' another trial, and 'there is no occasion to decide or discuss them> here. ;
The judgment is reversed, and the cause remanded.