*1 Employers’ v. Texas C. Stone Everett Association Insurance 10, 1954 A-4690. Decided November No.
Rehearing overruled December 59) (273 2d Series S.W. Jones, Brian, Marshall, Brian peti- & Jones and T.C. tioner. *2 holding Appeals
The of Civil erred in Court the trial unconditionally inquiring court should have submitted plaintiff partial incapacity whether will not sustain which was negative submission, holding and in it was error to incapacity finding by jury condition an issue of aon incapacity. of of of Asso- some number weeks admitted total Corp. McGrew, 583, Indmn. v. 160 2d ciated 912; Wright 138 Texas S.W. 172, Co., 123 v. Traders & Gen. Ins. 132 Texas S.W. 314; 482, Lee, 2d Consolidated Underwriters v. 107 S.W. 2d error dismissed.
McMahon, Camp, Springer, Smart & and John P. all Walter Abilene, respondent. of response Wheeler,
In cited v. Southern Underwriters Com. App., 350, 340; Emp. 2d Ass’n. 132 Texas 123 Texas Ins. v. S.W. Cloud, 903, dismissed; Ins. 120 2d error Traders & S.W. Gen. Patton, v. 92 2d error dismissed. Co. S.W. opinion Justice Culver delivered the Court.
Mr. awarding Stone, petitioner, The the trial court permanent disability compensation workmen’s for total has by (with Appeals been reversed and remanded Court Civil dissent) judge unconditionally trial for refusal of the incapacity. 2d 902. the issue of 266 S.W. among following
The were submitted: issues others you preponderance 1. “Do find from a evidence ‘permanent’ incapacity of Everett C. Stone will ‘temporary’ ? foregoing you question ‘temporary’
“If have answered the then following question, otherwise do not answer answer same. many you preponderance find from a
2. “How weeks do incapacity will last? the evidence such Special ‘temporary’ you “If have answered Issue No. No. 2 giving Special any number then answered Issue have following weeks, question: otherwise do an- answer the same. swer the you preponderance find from a “Do evidence following end incapacity, any partial suffer
plaintiff will Special you in answer found weeks the number 2?” No. Issue incapacity having 1 that the total No. answered The 2 and 3. Nos. not answer permanent, did
was plaintiff “If the sustained respondent plead as follows: incapacity denied, such was any incapacity, which is plaintiff sus- “if distinguished permanent” denied, incapacity was such incapacity, any which tained peti- distinguished that the It is admitted from total.” partial as and had totally incapacitated time the trial at the tioner court, injury. as- continuously date of his since been disjunctive as to suming fact, the issue submitted temporary. Thus the total whether *3 incapacity was in effect submitted the issue any partial Obviously, exist unconditionally. there could not temporary. incapacity was incapacity the total unless general Many support proposition “partial the that cases incapacity,” “total and incapacity” an affirmative defense to is entitled to an unconditional submission of that the insurer incapacity” by “partial if the evidence and raised the issue of Shanks, Company pleadings. v. Traders & General Insurance 781, ref.; App., 2d In- 83 S.W. wr. of er. Texas Texas Civ. Thibodeaux, 655, demnity Ins. 129 Texas 106 2d Co. v. S.W. 268; Employers Phillips al, Ins. Ass’n. v. 130 Texas Texas et Wright Co., 182, 991; v. 107 2d Traders & General Ins. S.W. 172, 314; Employers Casualty 2d 132 123 United Texas S.W. Thornton, 920, App. v. Texas Civ. 151 2d wr. of er. Co. S.W. ref.; Exchange Lynch, 516, Federal v. 140 Texas Underwriters 653; Samanie, v. 2d Underwriters 137 Texas 168 S.W. 531, Southern 359, Wheeler, 2d and Southern Underwriters v. 155 S.W. 350, 2d 123 132 Texas S.W. prior these, adoption
All cases were decided the procedure. one, In rules of civil the latest Federal the against Lynch, the court observes: Underwriters “* * * pres- the The case was tried before effective date of our procedure, questions therefore the rules of civil raised must ent light principles applicable.” of the then considered be given are to be liberal rules construction to the end These may impartially litigation expeditiously be conducted that adoption In Rule T.R.C.P. Rules 277 279 resolved. 24 object simplify was to jury the submission of cases practice our duplication under issue and to avoid much
and confusion that theretofore existed. Thus in Rule a dis junctive approved form of submission is for two inconsistent necessarily issues where one other is In Rule true. provided fairly it is that “where court has submitted the controlling by pleading evidence, issues raised such and the case shall not be reversed because of the failure other phases and various or different shades of the issue.” same none In of the cases cited above relied on the re spondent question presented exactly is the it is this case. charges In substantially most of the condemned issues are you preponderance form: this “Do find from a evi incapacity plaintiff, that any, perma dence the total if followed nent?” the instruction if is answered “yes” incapacity the issue toas is not to be answered. jury disjunctive In this case the was asked in the form whether was, temporary, which rules, with accordance an unconditional temporary incapacity. as to objection Special No leveled to the form of Issue No. 3 other than unconditionally that it should have been submitted improperly placed Assuming proof. the burden of immediately court had omitted the instruction which question followed 2 would form Issue No. not the interpreted by incapacity there could be *4 incapacity permanent if the admitted total was and not tem- porary. injured by respondent Then how could the have been necessarily ques- the instruction which must be read into the tion itself? controlling
The whether not the issue this case is or total permanent incapacity temporary. permanent, is If the case temporary, proceed jury is ended. If then must determine to any. partial incapacity, extent and duration of if Human temporary experience that in indicates where there is total resulting usually capacity trauma there will follow a might partial disability. jury period find to the con of But the may, “partial plea incapacity” trary. Be it a is not that as “permanent incapacity.” that to total defense to The a defense “temporary.” jury had that If the answered is that it is issue temporary incapacity the burden would be on was the total period partial incapacity prove existed after the that plaintiff to thereof. Under the incapacity well as extent as of total pleadings correctly and the evidence this case the court sub partial incapacity upon mitted the issue of conditioned disjunctive incapacity answer to the issue as to whether total permanent temporary. was necessarily
We do not overrule the decisions in the cases may require referred to above. There situations which an are instance, unconditional submission. For Federal Underwriters Lynch, supra, by pleadings v. made the evi- issue Lynch partial dence was whether or not had a sustained total or right leg. loss of the use of his Respondent says brief its its was that contention incapacity by the total was not a and was followed period partial argues incapacity. It manner sub- deprived mission it of that defense and there was afforded no opportunity theory to jury. its On the the case contrary, any testimony prove partial incapacity offered to bore directly on the defense that the was a permanent. say condition and “period not To total adds incapacity period partial incapacity” was followed nothing incapacity temporary. to defense that jury interrogated Before the could be to whether or as not incapacity there was the defendant should secure affirmative to answer his affirmative is defensive issue temporary. requested by you the defendant “Do find preponderance from a plaintiff of the evidence that will any not suffer incapacity.” This issue was not limited jury to and did time not confine the to a consideration of period incapacity after the total had ceased. best it would At only confusing and, regardless answered, of how would not any judgment. afford basis for tendency simplify practice our progress promotion speedy
mark disposition toward the litigation, particularly in this kind aof case the award where wages injury. Certainly be made in lieu of lost confu- right sion should be eliminated where the substantial fairly defendant to have his defense submitted infringed. *5 judgment Appeals of the Court of Civil is reversed and rendered and that of the trial court affirmed. sitting.
Justice Walker not 10, Opinion 1954. November delivered concurring. Mr. Justice Wilson agree judgment with the majority I but concur with positive requiring precedents in the dissent statement negative should factual same and overruled.
Opinion delivered November dissenting. Mr. Justice Garwood following the writer heretofore submitted views were re- proposed opinion and were in the form of of the Court opinion; jected this dissent. hence in favor Court greater sim- has, for motives of It is submitted that the Court actually law, leaving com- plicity, mistakenly more applied it plicated than before. Court’s case and others mentioned
The Thibodeaux opinion say flatly employer entitled to an uncondi- as incapacity, even tional submission his defense other decisions hold with reference disability. the defense pleaded defense and the insurer the former Here charge plea By objection supported to the its with evidence. incapacity, tendering on and an unconditional squarely presented trial court its contention to the perma- for total and The claimant had a overruled. got uncondi- disability insurer no compensation, nent but Thibo- of its Yet it is said that tional submission defense. despite this latter And line cases is not overruled. deaux assertion, Procedure of Civil is is further insisted that Rules case, pres- great change have since the made being simplicity by way progress toward ent decision one litigation. speed kind of in this confusing simply overrule I think is more than
Now this say clearly counsel what Thibodeaux line of decisions the for the claimant here that, wit, argued for, reasons mainly for submitting away logic simplicity, with have done we for the contrary submitted defenses the of the main issues submitted, Thus, “Is claimant. where there defendant, unless total?” we would not also issue, “Is the dis- conditionally “total” upon answer got ability stated, partial?” here As the insurer *6 “partial,” of of his defense which Thibodeaux submission the says to, only of it entitled and difference be- line cases the the and the is in the latter tween case others the issue, submitted, disability the was first “Is total?” whereas (for admittedly was not that the claimant was here it the reason totally trial). disabled at the time This difference seems scarcely at a at but a thin distinction and worst difference. best disability important the moment of no than The that at trial is more after, before, before, a
of moment or month or week yet trial. dif- And court’s must rest on this one overruled, ference if the Thibodeaux line of cases is fact not actually Let because that difference is the one exists. us assume the old decisions to stand. The fact number- compensation period less cases there at least some admitted disability following the accident but before the trial. Doubtless this was so even in In in- the Thibodeaux case. those (along surely pres- stances we will not lines of submit case) disability ent “Is the tem- or heretofore porary?” will, perforce, independent, So we continue to allow “partial,” unconditional defense of in the case, except where is total at the time overruling of trial. I result, if that this is we are not case, the Thibodeaux to allow submis- “partial” instance, denying sion of other, in the one while it in the just (and is to add unprofitable) one more fine distinction already procedure. an to to overrule overintricate area On other hand clearly the Thibodeaux line of will least decisions at and, confusion, admit, add may as I am not loath to serve logic purpose simplicity. some little original my But I still stand on view that if law under existing per- decisions now too “technical” seems to us or haps uncomplimentary jury’s even intelligence, a far change major better avenue of surgery lies frank under the legislative process more or less than in Rules the old- away” process may fashioned “nibble of decision. The latter accepted judicial saver,” certainly “face contributes but
more clarity. to that end than it does to But, all, logic simplicity after means main- are no
spring law, did nor or could the Rules of Civil Procedure make it mainly policy. example, otherwise. Law is For there is greater logic clarity practice motive of our behind large latter, it, verdicts. The if are we frank about part policy recognition of the natural weaknesses twelve average laymen justice. as a who but tribunal of And knows long established policy behind our
what similar reasons lie things many making out practice “affirmative” defenses thereof, and satis- examples as accord classical such besides the allowing their limitations, accordingly defendants faction *7 essentially the but that are unconditional submission issues nothing contrary it that plaintiff’s was issues? Not for the arguing very in for the claimant this case we heard counsel greater logic for powerfully simplicity, counsel while for the stare and the old order. insurer exalted decisis Nothing Pro- in 277 or elsewhere in the Rules Civil Rule by the compelling reached cedure comes near the conclusion question permission Court. in one The cautious to “submit only tempo- injured employee permanently whether the was or (note logical a rarily altogether “only”!) or disabled” not the disabled,” corresponding “totally only partially question or case, certainly suggestion, in to combine both no total-partial allegedly con- permanent-temporary in one trolling deny erst- the insurer his issue and with that excuse to say “partial.” while To that unconditional submission of controlling simply issue submitted is the issue assumes say very Why dispute. Court’s side of the matter in did we was “total” vel non the Thibodeaux the independent that the case submission controlling for insurer’s demand issue thus overrule the only “partial?” differ- And since happened to ence from the cited case that here claimant trial, hereafter entirely be still are we disabled at the time of controlling say, arise, many to in the similar to cases admittedly disability issue is “Is the total which the claimant only temporary?” suffered last week or precedent of And where does the “new look” lead us as bogey general nothing application? old more for did the Not argument. admit crop If we of “Inevitable out in the Accident” grounds logic, overruling will not case on logic an require sub- same us decide longer the defendant’s mission of “Inevitable Accident” is right? studiously so, although refrained I we far think have thus logic- taking If to be step judicial we are decision. al, “Inevitable why consistently Why stop even with so? not be Accident,” policy? unless for reasons of whether issue of observes that the submitted Court “permanent temporary” was doubtless “total” admitted was or That, too, implications. assumes quite its clear to judges would very dispute. No doubt most conclusion really deciding they presently understand that were whether totally totally purposes disabled man for an was disabled good totally award and suggest for But disabled or time. I judge that to a the effect of the ‘“total” submission equally clearly the Thibodeaux case would included a find- have ing partial. policy on whether whole background judges lawyers verdicts is that or look at things quite differently jury. and understand than does a said, too, It is “partial” defense defense is no “total-permanent.” then was the to do here? What insurer combining Should “partial he have asked and tem- porary” “partial temporary” requested separate or or issues “partial” “temporary” on what tech- other refined nique poceeded? Conceivably might should it have in- have jected “duplicitous” objection the word into its to the first charge, issue of the probably actual but that not du- *8 plicitous, totally since the claimant It disabled at the time. simply deprive was worded so as to the insurer of its traditional right independent by giving “partial” ap- submission of pearance submitting partial” “total form alternative of Rule 277 and at appearance the same time an- an issue “permanent on temporary.” any If there be valid reason for the Thibodeaux place, rule in the first Issue No. 1 as submitted right did not cut off to “partial” for the insurer. In fact an answer in the “total” issue clearly finding case more “partial” included a on than did an answer to Issue No. 1 in If we instant case. apply put great lawyers Rules too a burden on the about precise charges, objections character of their we are likely to refuge make the Rules more a than source of “technicalities.” validly Since I think the cited cannot be dis- authorities
tinguished ought through overruled, not be amend- unless Rules, ment Appeals I believe of the Court of Civil right in the instant case and should have been affirmed.
Opinion delivered November