*1 by any or will be damaged act or statement
by appellants which are made the basis plea
of her estoppel. will be
reversed and here rendered
appellants Harley M. Hitchcock Jessie jointly Hogan be awarded Mae Hitchcock prop-
an undivided one half interest in
erty subject this suit and
cause be reversed and remanded
accounting and that otherwise the features
judgment of the court is affirmed. part, reversed rendered
Affirmed part part and in reversed and remanded. RILEY, Appellant,
Tex NORMAN, Appellee. 5069. Civil Paso.
El
Dec. Denied *2 dollars, cents,
“Answer in any, if and any. if $2,500.00.” “Answer: objection Defendant’s “A” such issue Odessa, appel- Shafer, & McDonald No. 10 was: lant. “A. Because the Court has instruct- Fuller, Odessa, Blanton, McMahon & jury ed the can take con- into appellee. sideration and make an award for dam-
ages physical impairment due to and capacity also for diminished suffered McGILL, Justice. Billy Ray the said Norman in the between This suit arose out of a collision permits and therefore and allows vehicles, oper- being two one which duplicate to make a award of by appellee and in his wife was ated damages against defendant operated riding, the other also and physical impairment dimin- verdict, pellant. upon judg- Based a capacity ished one and are the same.” ment was entered in favor of Physical impairment and diminished ca- $6,000 against appellant for with interest pacity to work money and earn do not per judg- at from date annum 6% necessarily imply one thing. and the same ment. capacity Diminished to work and earn money may ordinarily does result Appellant’s points complain of physical physical impair- but court, in the instruction errors of the necessarily ment does result in dimin- judge first because the instructed capacity ished to work and earn “physical impairment” could be awarded for depends It impairment on the nature of the capacity and for “diminished to work and and the nature of the It hardly work. money”, objec earn over the defendant’s be true that the loss of a little finger on the permitted tions that the same and allowed left necessarily hand would result dimin- recovery. Special a double Issue capacity lawyer ished judge to work submitted and the instruction in connection money profession earn of law. therewith was: might It so result for a machinist or wielder pick aof or sledge. In this case the evi- any, money, paid “What sum of if if plaintiff was a welder at the now in cash prepon- do find from a time injured he was and had up derance of the evidence will be reason- this kind of injuries, work because of his able for the and thereafter that he worked in a service pairment, any, if Billy considerably station for money; less Ray Norman, past, in the if there has other words the capacity any past, in the and for money work and earn awas direct result pain, any, if Nor- physical impairment suffered, but it past, man in if any there has been impairment. was not Physical past, in the and for mental in the impairment, as result, well as the dimin- past, if past, there has been in the capacity ished to work money, and for capacity, any, diminshed if proper were both damage. elements of plaintiff Billy Ray Norman, to work physical impairment with its accompanying money past, in the if there was a scar on the fore- has been resulting di- head and at least a rectly temporarily proximately inju- swollen ries, Norman plaintiff Billy if knee. was entitled to recover Nor- man ques- sustained on the occasion these even had there been no dim- tion? earning capacity inution because of Felder, and retain Company he cannot obtain tent that Transit Houston them. labor, 880; employment at manual 208 S.W.2d 146 Tex. Tex.Jur. permanent, is total and such condition Diminished Sec. 79. per- loss total and *3 analogous to and that he is entitled to money is work and benefits, for recoverable. manent earnings which is time or of Defendant cor- did here sues the 178, which he Sec. 85. The 13 Tex.Jur. they poration.” the that instructing in not err viz., elements, consider both However, accident after that capacity to diminished impairment and field, he roughneck in the oil did work this overrule We work only injury in that his substantial claimed point. right little fin the loss of the accident was had right ring, finger. refusal He ger in the court’s and the urged Error is also subsequent July accident in 1953 requested instructions another defendant’s of physical, In that accident he pain, mental and to the accident suit. damages for bump on'his head which caused capacity and received a spot he just if caused to the side the where awarded a knot of pairment could not be injury by 1951 claimed for in this suit. partially accidents of wholly or suit, think the court Under this evidence we accident than the and 1953 other mental should instructed the future have damage for any damages resulting could not consider and future diminished accident, subsequent wholly his or from the if caused be awarded could not 1951 and failure to do so would constitute reversible of partially these accidents substantially The error had a correct instruction in suit. the accident other than 1953 . requested 279, jury accord- Rule Texas Rules the instruct court refused to Ap- of Civil American In defendant. Procedure. Great ingly as so demnity Sams, 121, re- 142 176 such constitutes Co. v. pellant contends refusal Tex. (cid:127) opinion S.W.2d 312. all the ele error. versible necessary require ments to such instruction 3, injured on Appellee was specified Ry. as in Dallas & Terminal v.Co. June Drilling 1951, working Oil Well while Orr, Tex. S.W.2d exist injuries. filed suit for Company. He However, this case. the instruc alleged: petition he his In tion submitted to court was not even substantially correct. This was : mo- limitation of marked “There is “. the second and ‘And in connection with joints of tion you right little and if' find in phalanges of third you you he has lost almost are instructed that fingers; ring hand, any damages and the arm has cannot and must not allow right grip any physical impairment resulting and there is limitation weak become arm, wholly partially and.he right can- or accident arm; right anything with the of 1951 or the of 1953.’” accident not lift amputation alleges that Plaintiff “In this connection defendant re- that he has tender and stumps are quests the to add after each item right arm pain in the continual submitted: ‘You are instructed that the ulnar side of palm of starts must' and cannot allow extends his shoul- right hand damages' resulting whatsoever to the when he der, being worse said from accidents anything right with the lift tried and 1953.’” security power hand; or he has no anything right prohibited It would have grips when allowance prior hand; alleges aggravation that due and Plaintiff subse- injuries totally quent injuries he is now suit. accident to said ex- was entitled to recover at disabled to an least permanently resulting injuries prior aggravation 'for TEXAS INSURANCE EMPLOYERS opinion In in suit. ASS’N, Appellant, recover also entitled the writer he was by subse- caused damage the increased quent injuries. JOHNSON, Appellee. Hubert E. No. 6773.
Therefore, the instruction err in did not and the is erroneous Court of Civil refusal The court’s refusing it. Texarkana. basis sole requested instruction' is points. third second *4 Denied Feb. affirmed. The Rehearing. Appellant’s Motion for On
HAMILTON, Chief Justice. overruling respectfully dissent I rehearing motion dis- original the court.
majority of case, I believe
position of holding that in error fell by appel- the court submitted instruction Special Issue No. in connection
lant rea- substantially correct. Our 10 was requested in- holding such given for
son “prohibited it incorrect struction aggravation of
any allowance subsequent injuries
prior or considera- After careful suit.”
in [this] rehearing and appellant’s motion tion of case, I believe that reviewing the whole substantially* instruction was allegation evi- no There was
correct. aggravat- injuries in the suit that the in the accident prior injury received
ed .1951, not have been in- manner submission
harmed Certainly requested instruction. recover for in- entitled to
pellee was not by subsequent in- damage caused creased purpose an in- very of such
juries. preclude was to as was
struction recovery. rehearing-should
I believe granted be reversed, cause remanded for error of trial court because appellant’s requested refusing submit original our discussed
opinion.