*1 the manu- in the record. Neither tioned parties to this nor Frizzell are
facturer Corpora- Acceptance
suit. Motors General automobile to Musick. did not sell the Fairbanks, connection, this see Smith v. In 908; Co., 101 Tex. 102 S.W.
Morse & Reeves, Tex.Civ.App., 266 B. Colt Co. v.
J. 564, wr.; Finance v. Auto Martin S.W.
Co., Tex.Civ.App., 25 no wr. S.W.2d upon a
This case one based in
promise pay contained a written
strument, prop the execution of which was No
erly affidavit. defense shown brought for
recovery on this instrument is
ward. state of record
judgment that could have been rendered trial was rendered
was that which Casualty Fire & Co.
court. Southwestern Larue, Tex.Sup., (1963).
v. Ap- of the Court of Civil
peals is reversed and that of the trial court
affirmed. FIDELITY AND STATES GUAR-
UNITED Petitioner, COMPANY, ANTY LONDON, Respondent.
Oliver
No. A-9601.
Supreme Court of Texas.
March 1964.
Rehearing Denied June 1964.
Kenley, Boyland Ritter and Neal A. & Hawthorn, Longview, petitioner. Francis, Bean, Gallagher, & Wilson Holt, Dallas, Florence, Berry, Garrison & *2 - Marshall, recovery by plaintiff Gilmer, Baldwin, for the denial of for gen Baldwin & injuries. respondent. eral stipulated parties period io.c The that the GRIFFIN, Justice. temporary total loss of use each of the of mem- three members was 59 weeks for each court, Respondent, plaintiff in the trial as ber. Compensa- filed a under the suit Workmen’s Act, against petitioner, tion as defendant rendering judgment plaintiff’s tem- plain- carrier of insurance porary specific total loss mem- of that he had suffered employer, alleging tiff’s bers, the trial court refused to cumulate injury disability total from an received member, specific total loss of use of each employment plaintiff’s course of judgment only and rendered for 59 weeks’ plaintiff’s injury result an accidental rate total loss of use at the maximum Plaintiff, leg right left and left hands. per The court cumulated week. $35.00 amendment, the alternative a trial length disabilities for specific pleaded injury that he received disability percentage of of time and at the leg body, left his to-wit: to his not com- jury. found Petitioner does right and to his and left hands. plain award in this court of the cumulative therefore, disabilities, disability resulting regard to the With question before us we do not have this specific injuries from the to the three mem- assume, trial deciding, without plaintiff’s body, bers of the trial court sub- action correct. court’s was regarding mem- mitted similar issues each First, inquired plaintiff ber. the court if Appeals reformed The of Civil Court any his “sustained total loss the use of as to judgment so affirmed the trial court’s injury.” jury leg following an- left recovery plaintiff each award swered, “yes.” re- cumulating the total loss thus inquired the “dura- Next the court as to covery loss of use tion, any, of such total loss.” 263. three members. 366 S.W.2d answer, “Permanent” was instructed judg- Appeals The Court Civil based weeks,” or “by giving the number of upon wording last clause ment jury answered “None.” To these issues the in Article following paragraph found leg; use the left weeks’ total Civil Stat- Section Vernon’s plaintiff’s right 59 weeks’ total loss of use of utes, reading as follows: hand; weeks’ total loss plaintiff’s left Therefore the hand. con- “Where the sustains members was each of the three resulting current “per- "temporary” found to rather than compensa- incapacities, shall receive he manent.” produces injury which incapacity; longest submitted the issues In its answer to liability jury found this shall not regard to the affect loss or the loss the concurrent plaintiff had suffered mem- (1) his than more percentage as to disability a definite thereof of ber, compensation is hand; his left which member and to his leg; left schedule, in this hand. specific injuries under this law shall special issues to other jury’s answer con- be cumulative as to time and not disability solely to his confined current.” o f question is no consequently there injuries, emphasis opinion is that of this case. No All in this a'general indicated. findings anil unless otherwise complaint these made of ap- verdict. On judgment judgment rendered We the Court on reverse Appeals reversed the peal Appeals Court of Civil Civil and affirm the court to submit case for of the trial failure trial court. *3 part affirmatively unconditionally a of and Court, Defendant, petitioner in this as plaintiff’s of action. This action was cause by points its three of error the first attacks by Supreme affirmed Court. the of by Appeals the Court of Civil allowance The trial awarded to court’s separate periods three total loss plaintiff compensation cumulative for the body, plaintiff’s of the members fingers. loss of the The use of the three leg; viz: 60 weeks for left 59 weeks pass Appeals on Court of Civil did not that In right hand; left and 59 weeks for hand. point. Upon appeal this Court it to was Application of Error defendant Writ held that because the total loss of use of stated, says: question “Simply the before only fingers temporary (for the was compensation re- the amount of court is that weeks) it was error to award cumula- spondent for the (plaintiff) should receive compensation use; tive that for such loss of accident, following his period 59-weelc plaintiff only longest should recover for the period totally of time when he was disabled period incapacity resulting from such three and from total loss of suffered use temporary use the three fin- total loss of body.” of his gers, plus 26 partial weeks of loss of 50% period Respondent although fingers rec- use of claims that the three for one only. weeks, only Recovery of the ord 59 weeks’ total loss was limited to shows members, being temporary only for the use of the three loss of each of you finger. to one when add this permanent partial use of each part Discussing of Article that § members, you have a three above, which we quoted have Court members, loss of for each the three said: Appeals cor- and of Civil was that payment, contemplated “The by the in cumulating rect for the total use of a loss of use. compensation body member of the question The must be solved the lan- and is measured incapacity
guage paragraph from Article § When, incapacity. duration 12, quoted The facts above. establish case, the instant suffers injured each was as the result of member injuries, concurrent here to incapacities accident, and that three fingers, resulting of his in con- to each member were concurrent. The temporary incapacities current and he to three weeks’ total loss of use each of the paid injury that has caused the same 59 weeks of members covered longest period incapacity, his (cid:127)elapsed time. by, has measured been payment for, has been made Employers case Texas Insurance period incapacity full caused (1946), Association v. Patterson Tex. payments, injuries. employee alleged 192 S.W.2d cumulated, beyond continue well that he the total and had suffered incapaci- of the concurrent thumb, fingers, loss of ties. plaintiff arm. The found hand and loss of use of each of suffered the total “The last weeks, applies, in our fingers quoted three for twelve followed Section 12 above perma- opinion, of each of the three percentage use, fingers and the nent loss and not to for 26 use, court the use loss was trial because of 50%. words 'loss or the loss of the Patterson, use’ with supra. ation v. Among other reference to temporary loss of things Appeals the Court of Civil said: portion because para pleadings “The speaks graph evidence show the loss or the loss of appellee’s legs were use of more than one member ‘for injuries. By term of pro appellee the above statute vided in entitled this schedule.’ The schedule receive sets out definite injury peri- produced longest body, different members of the incapacity. appel- od of is, *4 specified number leg produced lee’s left of which weeks weeks 100 for the loss of each member twenty per ‘loss of the use’ and cent schedule, listed in the payments which partial ‘loss of the use’ for 150 weeks are to be made for the full number of temporary longer period was and was a specified, weeks and without reference incapacity of than the any to weeks ‘loss 100 incapacity. There is of right leg. use’ his He of schedule of compen- therefore entitled losses to receive use. of for them incapacity sation measured, for the caused said, as has been by the injury leg, to the court duration his left incapacity.” 192 S.W. erred p. 259, compensation 2d (9, allowing 2d col. 10) (11). injury to right leg. his In the case Employers Texas of Insur- legs, resulting in the total loss to pensation of both suffered a resulting Tex.Civ.App., ance fused, plaintiff Hollingshead sued for com- perform specific Association v. Hollingshead, legs. labor, total and injuries The injuries 282 S.W.2d tie also jury to his loss of the use of a found that sought general right 305, of disability writ recovery and left plaintiff the use nature 1955, his re- thereof of more than [*] tion of the above section shall not affect this case is controlled contention that “We cannot Jji [*] § 12] > » loss or the loss agree the determination quoted provides liability the latter statute [Art. of appellee’s member the use por- ‘this of legs; that he suffered total loss of the use We construe the of § leg weeks; for 100 total loss us, Art. we have before so that the of use of his weeks; left for 100 leg and a first applies clause thereof to partial loss of use of his left to the ex- leg specific or loss of resulting tent of for an additional weeks. 20% from received one accident so The trial judgment court’s cumulated or incapacities that such concurrent may not together added the total number weeks cumulated, employee receives- but of loss of use legs suffered to both as found “compensation only injury which by the granted produces longest period incapacity.”1 therefor. The last paragraph (and clause quotation we have italicized our appeal On Appeals re- Court Civil application only of this paragraph) has to versed and plaintiff rendered loss, permanent partial loss, to recover only for the 100 specific total loss of use of a weeks’ loss of leg, plus his left a re- member, or members. As to such inca covery for partial loss use of that 20% pacities permanent, employee which are leg for the 150 weeks as jury. found shall be entitled to cumulate the The Appeals Court Civil followed the as to time and not concur case Employers Insurance Associ- rent. Trav also relies on case case, and our con- Plaintiff of this the facts Under Theriot, 1962, Tex.Civ. elers Co. v. reach the Ins. we do not struction refused, as au App., writ payable for 353 S.W.2d
problem
being
thority
That
sustain his contention.
the de-
reserve
weeks. We
longer than 401
point
bar.
properly
in the case at
case
question
it is
until
cision of that
separate
employee
had
two
the result.
sustained
us
determinative
before
suf
a result of one accident
hernias as
language in
on some
Respondent relies
had
fered
The trial
March
court
1960.
Emp.
Male
Ass’n v.
of Tex.
Ins.
the case
each hernia.
awarded
weeks for
App.,
don,
27 S.W.2d
Comm.
Appeals
judg
affirmed this
Court of Civil
Appeals hold
support
Civil
ment.
Civil
affirming,
Court of
ing.
Appeals
specific
was a
held
each hernia
that the
the court shows
language
injury,
has
Legislature
for which the
speaking
was not
court
com
scheduled a maximum of
weeks’
members,
or more
to two
Therefore,
pensation
paid.
to one
of one
hernias,
he
has suffered two
*5
time with
body
for
concurring
pay
entitled to receive
for 52 weeks.
injury. The court allowed
a general
disability” (as the
"total
for a
Plaintiff relies on the case
Griffith
designated
court
1946,
56,
Goforth,
184 Tenn.
S.W.2d
195
hand, plus the
to the
weeks)
33, to
his
should
sustain
contention
we
incapacity
the hand
to
cumulate
(being
131 weeks
balance
each of the three
members.
statutory schedule of
for total
150 weeks
present
point
Goforth case is not in
hand).
Neither
in-
case.
is based
It
on the Tennessee Com-
spe-
juries nor concurrent
of a
disabilities
Statute,
pensation
differently
reads
which
cific member
that case.
were
from
did
ours. That the court
not hold
clearly
disabilities should
cumulative is
be
Respondent
relies on
case of Tex.
also
shown
language.
Emp.
(1953),
Ins. Ass’n v. Brownlee
support
Tex.
to
“We cannot conceive that it was the
recovery
cumulation of
allowed
Legislature, making
intention of the
Appeals.
case was
That
Civil
as
schedule
under subsection
found
point
or not
involved
of whether
(c)
injury schedule],
[the
plaintiff’s injury
and third
second
permit
injured
pyra-
fingers
right hand
to and
his
extended
mid separate and distinct
plain-
right
affected his
hand so
entitle
as to
body, adding
different members of his
recovery
to a
tiff
50%
together
the number of weeks for
right
his
hand. Both courts below
partial disability
manent
to each mem-
recovery
compensation for
had awarded
ber,
aggregated
until the total has
hand. The
the loss
the use of
paid $12,565
compen-
and be
question
cumulation of
6, 7,
sation therefor.”
1st col.
[From
opinion.
raised or
in this court’s
discussed
p. 37 of 195 S.W.2d].
This
there was no evidence sus-
Court held
jury finding
taining
Ap-
judgment
of the Court of Civil
by respondent
to the
sustained
extended
peals
is reversed and that of
trial court
hand. Therefore
court reversed
affirmed.
and ren-
judgments of the courts below
upon
agreed
dered
the amount
CULVER,
and GREEN-
WALKER
parties
between
opinion.
HILL,
join in this
JJ.,
fingers.
two
NORVELL,
J., concurs with
verbiage,
written
the court’s construction of the
opinion.
adopted
statute is
and confirmed. Lane v.
Ross,
151 Tex.
249 S.W.2d
(1952);
CALVERT,
J.,
joined
dissents and is
C.
Employers’
Holmes,
Ins. Ass’n v.
STEAKLEY,
HAMILTON and
JJ.
145 Tex.
(1946).
SMITH, J., dissents.
application
upon
however.2 It
is based
theory that when the courts construe a leg
act,
construction,
islative
it
con
if
NORVELL,
(concurring).
Justice
may
sidered
Legislature,
mistake
agreement
opinion
am in
with the
corrected,
legislative
hence
there be
if
However,
Mr.
GRIFFIN.
the dis-
Justice
change Legis
will be assumed that the
sent of the Chief
raises certain
Justice
approved
lature
judicial
construction
may
matters
properly
be discussed.
particularly when
re
the statute has been
expressed
conclusion is
in this dissent
enacted
change
without substantial
in word
the two
clauses of the
ing. However, when the
construes a
court
question1
utterly incompatible
are
portion
construction,
of a statute and such
repugnant and
hence the entire
applied
portions
to all
should
meaningless
be declared
and void.
legislative
render the
ab
enactment
unworkable,
surd and
the force of
To me this is a stare decisis case and
stare
argument
upon legis
decisis
based
“we do not write on a clean slate.” Mas-
substantially
lative inaction or failure to
States,
sachusetts v. United
333 U.S.
*6
amend, is measurably diminished.
747,
68 S.Ct.
75% %) temporary of man (or suffers a total loss to receive he entitled 75% wage for 150 of a average weekly leg use of 15 weeks duration and of his a 60% temporary total loss of use of a hand for weeks. duration, 75 weeks he is entitled to recover permanent partial losses of In cases of compensation at the rate of of his 60% member, percentage use of a this same average weekly wage for 75 weeks not consistently with applied could formula 90 weeks. This because at the end of 75 provisions the second clause ready weeks he is he to return to work and paragraph here involved. has drawn the allowable maximum in com- greater amount of paying for the loss pensation of time he was money per paid, fol- week would first be working. compensation paid When carrying partial lowed for the loss or loss mem- rate, highest the next etc. It would bers, compensation under the statute extremely com- be an rare case where the paid partial incapacity for a measured pensation period for a combination paying by a fixed standard schedule which arbi- partial losses use would trarily treats a of member as loss or loss a weeks, particularly num- exceed 401 “partial as being incapacity” entitling him specified for a ber of weeks as the limit many weeks. so similar limit loss of a member would set a temporary cases of total losses of when partial loss of use of member. the “loss of comes to an end and use” However, unlikely usable, in view of an occurrence body again member of the becomes where the limit of weeks would exceed incapacity obvious say I would not this was the outside (loss of member) use of the comes to an limit of end and hence the likewise members, but that losses of of several ceases. the Pat- holding Such was the paid exceed the the amount could not presents great terson case and it diffi- from 401 culty application amount realized insofar as 60% statutory average weekly wage course, incapacities or the are concerned. Of per maximum A pointed Patterson, week. out in $35.00 3% (150 plus weeks) the use the hand for a mem- total loss of use of a weeks) (200 plus a leg loss of a paid ber cannot exceed the for a amount 10% 15% sight eye (100 weeks) of one of a member. payments extending would call for over next We consider however, paid, 450 weeks. amount losses of use and here we encounter money *8 would be far below the maximum difficulty in the construc- real involved incapacity. allowed for total and problem. provides clause This Ar- Obviously, the contained schedules compensation the workman shall receive providing ticle 12 for a combination § injury produces the the which of members losses of period possible longest incapacity. of It is eye knee leg of an above the have loss and temporary partial in cases losses of application of use of partial losses greater of use of more than one member the members. paid money may amount of not be for the temporary incapacity longest We consider total losses of the duration when now compensation payable of the Patterson under holding use. It was the of is measured paragraph holdings cases. case that the first of the of Pollard clause Seale example, question applied involving may For workman suffer an Only to cases a weeks temporary loss of use of a hand of 50 losses of use of 85% leg body. temporary a the use of a of the a total duration and If we have 10% specific mem- weeks duration. The amount of loss of use of more than one 70
3Q7 carrying loss partial of use temporary money payable for the compensation weekly of greater much amount hand would be loss use of the of compen- concurrently payable run with the money would greater than amount of temporary paid of the sation total of temporary partial of use Obviously, use. if a workman suffered percentage of the leg, because of —this temporary injury in a of resulting the obvious losses of use involved. It was by prevent leg followed a double use of a weeks purpose the clause to of leg, partial incapacities are loss of the of payments for 50% compensation average rate be of his temporary in The maximum would nature. 60% by average weekly wage followed compensation of the for weeks of 50% 60% weekly wage weekly average of wage subject to limit of the overall 60% contemplated reach the week stat- 185 weeks so as to week. It was not per $35.00 utory limit. The would not be temporary who a situation that one suffered he changed tem- if an additional the use of a hand and the concurrent suffered temporary porary compensated resulting hand in a leg loss of a should be disability temporary by of weeks followed a for both losses of but that when “loss manent loss of the use of the hand. should cease 15% in- His of his of of both members” —the be 60% capacity pre- wage average weekly for 15 weeks followed to an end. Since the —came by average weekly wage of vention of culmination 50% 60% weeks, by prime losses use is the ob- followed 15% 60% entirely jective clause, average weekly wage period it for a would seem purposes spirit with the limit set for the statutory consistent say original that in cases of a If the Act hand. incapacities 90%, partial only, say where loss of use was by percentage principle measured a would be losses specific members, same, e., the workman should be i. 90% 60%. weekly paid greatest amount to opinion my paragraph in issue by he the re- would be entitled reason of meaningful can construction given be him, spective by of uses suffered losses Patterson, Pollard in accordance with the weekly followed the lesser amounts This cases. is a matter of stat- Seale extending there be other losses of use over utory con- if a reasonable construction greater period of time. To to the return paragraph can be set forth struction example given, say work- I would that the prior deci- which is with our consistent man would entitled to 85% 60% sions, followed. that construction should be fol- wage for 50 weeks to be average lowed may examined The result then be 10% 60% weekly wage for an additional taken, Legislature proper should action 20 weeks. the ob- legislative branch believe that jectives of the Workmen’s stated, As heretofore clear seems re-writing Law served could better practical difficulty application opinions discussed first clause of the does not arise *9 handed down in this case. holdings from in Patterson but rather from the decisions in the and Pollard Seale SMITH, (dissenting). that hold- suggested cases and it not Justice
ings long of Pollard line and Seale and the was respectfully The cause I dissent. them following cases be overruled. jury. The entered tried a trial court to plaintiff, say judgment further that a a in where favor prayed in his motion manent loss of use follows a tem- the' extent for to porary appeal, judgment.-. total or that the the Court for- On effect, plaintiff’s Appeals, granted
Civil cerned. are ques- We concerned with the by reversing judg judgment compensable motion for tion as to the number of weeks judg rendering and to specific injuries ment of the trial court be allowed for the sus- compensa plaintiff by jury. ment for more tained as found for by trial court. 366 tion than awarded Special through issues thirty ten found S.W.2d 263. plaintiff that the sustained a total loss of the petition filed on original leg, right was use of left Plaintiff’s his his and hand orig- 28, pleadings, as his Plaintiff’s left hand. 1961. found that June filed, inally alleged against of action duration of a cause the total loss of the use defendant, leg claiming period sixty left was for a weeks. general injuries However, parties stipulated sustained course employment. February his On of use of each of the amendment, weeks, plaintiff amend- period filed a trial involved of 59 was for a petition by 29, 1959, ing paragraph original beginning ending his August III and Oc- entry the first adding paragraph, a which for tober new 1960. This accounts alleged: judgment period time 59 weeks for a the total of use rather than injuries as said “That as result of period weeks, in answer to found conditions hereinabove set out and the Special Issue No. 11. therefrom, including the resulting pain incident treatment thereof and point perhaps At this will be well London, thereto, Plaintiff, Oliver respective positions delineate the caused, the acci- by has been reason of parties. question presented is which question, dent suffer the have judgment two motions for should leg, his left loss of the use of My posi- granted by been the trial court. right his left and hand at or above plaintiff’s motion should is that meaning defini- wrists within the judgment granted have been entered tions of the Workmen’s plaintiff prayer his in accordance with Law of The of Texas.” State judgment. petition, original In answer to the judg- prayer Plaintiff’s in his motion for denial, pleaded general and that defendant ment, moved the Court to enter “ * * * plaintiff’s earning capacity on and after weekly payment for him August alleged 1959, the date of the per week at the rate of $35.00 his injury, equal greater was to or than from August 29, and after to October date, capacity prior earning said 15, 1960, weeks, by period 59of followed date, capac- plaintiff, after said had the payment weekly compensation at the ity higher weeks, ability money earn at a per pay- rate of week for 91 $17.50 average weekly wage plain- after the than ment of of the use prior hand, payment thereto. tiff’s followed left weekly compensation the rate of $35.00 at defensively pleaded The defendant also weeks, per week for a followed plaintiff’s injury, any, payment at duration, extent, partial in “and resulted weeks, in per for 91 the rate week of $14.00 way things from matters and connect- payment * ** ; employment ed pay- plaintiff’s hand, followed alternative, pleads defendant rate weekly compensation at the ment of alleged any matters were the sole cause of per followed week $35.00 disability.” compensation at the payment weekly *10 weeks, in plaintiff per against found so rate week for 140 of $8.75 use general payment permanent far his alleged injuries as were con- ” * * * compensation Emphasis for certain plaintiff’s leg. definite left injuries enumerated therein. added. judg- proposed defendant attached a The Texas where pro- judgment. for ment to its motion involved, specific injuries places no are posed not number judgment does state the upon the number limitation maximum three the total loss use of the weeks for compensable recovery. weeks of The con- members, unquestionably involved trolling parts of Section 12 Article 59- proposed judgment allowed one are as follows: whereas, plaintiff contends period, week allowing judgment for a a 59-week in the “For enumerated leg, use loss of of the left following employee schedule shall hand, right weeks the loss of in lieu of all receive other left and 59 weeks for use of aid, except hospital medical services and parties agree- apparent are in hand. The provided, medicines as elsewhere herein proceedings level of the as ment at this weekly compensation equal sixty a judgment correctness of the per weekly average (60%) cent employee, less Appeals allowing wages recov- of such but not Civil a Court of per ($9) than Nine Dollars nor week by mo- ery plaintiff in his accordance with Twenty-five exceeding ($25) Dollars so far as per periods week, the respective leg, his left left herein, to-wit: stated hand hand and his is concerned. case, position I take the that in a hand, per sixty “For the loss of a here, finding of a we where have there is a weekly wage (60%) of the average cent total loss of use and fifty (150) during one hundred and member, number loss of use of a weeks. compensable weeks the latter allowed for of com- must be deducted from the number pensable weeks allowed the former. leg, “For the loss of a at or above position harmony
This with the knee, sixty per cent (60%) the aver- sup- Workmen’s Act and is age wages during hundred two ported, principle, by authorities (200) weeks. jurisdictions. and other The formula (cid:127)case which use of the advocate should be statute. The is entitled to single each member members. The fact that the accident three involves the provisions members was applied immaterial. accordance loss of Article the result use of three with the Plaintiff loss of of the use of member shall be considered tion as the alent “In the « permanent, partial incapacity, to and draw the [*] [*] foregoing enumerated same member. compensa- it shall equiv- cases Stat- Vernon’s Annotated Civil Section “ * * * case, utes, been govern this have but this shall section course, changes liability Of effect since 1913. the concurrent affect subsequent have been more amendment made or the loss thereof member, original enact- but from Legislatures, its than one for which unmistakably sched- ment, made clear in this it was ule, it was intention Legislature that provide as to law shall cumulative under this
(cid:127)enactment fixed and injured should receive a time and not concurrent.
310 presents The cases Patterson case
“In all a different the factual incapacity it shall be considered that situation than the factual back- case, present ground mem- in In every loss of the use of the the case. the equivalent to, light shall draw the law is declared in ber is of the facts as, that compensation involved and the findings loss of the trier of the same case, member; facts. In but the the Patterson found by finger he in lieu that as to each the loss of use said schedule shall was period in such that whole of loss all other Emphasis finger, including use added. each both cases.” same, thirty- total and loss was foregoing provisions of the finding eight that weeks. There was provisions especially those of Section any permanent loss of Patterson sustained shall provide (12) the section finger. 12 Article use of either Section loss liability concurrent not affect opin- 8306, supra, quoted the Patterson than of more or loss of the use thereof ion. It reads: member, compensation due for one and that “ injuries specific “shall cumulative employe con- ‘Where the sustains concurrent,” are rendered as time and injuries resulting in concurrent current by is due meaningless London incapacities, compen- Court. he receive shall mem for each of pro- only injury which sation use of period bers for the entire incapacity; period of longest duces the Employers’In such members. See: Texas liability shall not this section affect Moreno, Tex.Com. surance Association v. ap App., (192S), cited with 277 S.W. mem- than one more thereof proval Employers’ this court in ber, compensation is which member Brownlee, 152 Insurance Association v. schedule, compensation provided in this 247, Tex. Moreno S.W.2d 76. injuries this law shall under case, course, can the Court one said: con- and not be cumulative as to time “Of ” separately the various recover Emphasis added. current’ specified in section 12.” follow Instead of Company in the Patterson The Insurance Moreno, ing law as declared case court held contended allowing case quoted paragraph first of the above periods one of three part of Section rather than the second exists, found as underscored, which has been jury. deny result is to to Lon net applied. should Since $4,130.00 don the sum due him under the period finger each and for.a applicable statute. There is not one word properly thirty-eight the Court supra, lim Article held that: period its a claimant to one of total more of a member where case, an instant “When, than holding is involved. The injuries, employee suffers concurrent Court, therefore, legis amounts to re- fingers, here his three of lation this court. inca- sulting in concurrent strongly upon pacities paid The defendant relies and he is period cases Employers’ longest of Texas As Insurance that has caused the Patterson, (1946) incapacity, sociation Tex. been v. has 255; Employers’ by, .2d been payment S.W and Texas measured has for, Hollingshead, incapacity Insurance Association made the full (1955) Civ.App., injuries. Tex. wr. caused cumulated, payments, ref. would continue
gH judgment, rendering In such we sation. beyond period the concur- well interpret 12 of added.) took occasion Section incapacities.” (Emphasis rent 8306, supra. Article We said: Hollingshead case holding in the provisions “The clearly point case as of Article Sec- in in the instant * ** respect govern this finding either there no with was since 1913. Of case, there have been in effect leg that Hollingshead’s course, changes by any all such amendment have was duration, subsequent by Legislatures, in been made being temporary losses enactment, it original was present case loss of use from its whereas, permanent. Legis- unmistakably by made clear involved three members that its intention lature it was rationale of the argued It that provide enactment 12 to that of Section a compels this court to limit Patterson case injured employee should receive a recovery plaintiff to judgment a favor compensation fixed and definite cer- of total specific injuries tain enumerated there- recovery for the rather than a in. The Section enumerates the several each, periods as found three of 59 weeks specific injuries provides that jury. contention, it is making this specified for each part sought apply first of Section ' * * * in lieu of all other shall be Patter- just Article as was done ” ** (Emphasis *.’ of the rationale of the Regardless son case. added.) case, a give Patterson this Court cannot as contended for construction of It is true Legislature has re-enacted present As- case. defendant Section 12 since the Patterson decision. suming apparent conflict between there is an However, I that this court contend rendered quoted provision the first of the above interpretation in Brownlee of Section 8306, and Article the under- Leg- years and the seven after Patterson provision specifically scored which deals islature, doubt, thought, con- as I have with or the the concurrent loss interpretation mean sidered the Brownlee member, first thereof more than one involving that in cases provision yield must to the latter. compensation should be al- injuries, full injury. it lowed for While each assumption, Under this concur with plain- stipulated parties true that the overruling Chief CALVERT Justice tiff was recover for entitled to interpretation given of the statute tip finger, each and third the second court in that It has never been case. interpreted the fact remains that this court Legislature intention courts notwithstanding just statute to mean give should a construction of strict stipulation. de- Workmen’s Act as to prive recovery greatest workman Employers’ In the case Texas Insur to be under the facts of his case. allowed Maledon, ance Tex.Com. Association v. interprets case Court in the in App., (1930), the Court S.W.2d 151 controlling. Patterson case as The Court terpreted gen Section 12 connection interpreted recognize declines to has specific injuries. In the eral and Maledon Section 12 in other cases. case, were general both the Court In such a situation Employ- This involved. court the case of Section Brownlee, both clauses properly dealt with ers’ Insurance Association v. su- specific in pra, plaintiff, general al- 12. Because -both rendered interpreted involved, juries the Court were lowing the loss of recovery the second the first 12. Under both finger clauses of Section and for —30-weeks clause, compen- allowed finger of the third —21-weeks *13 weeks, which makes it applying the clause This illustration clear that full thus 19 specific employee sustains con- must allowed for all be reads: “Where injuries any given in- resulting involved in It is injuries in concurrent case. current specific only that in- capacities, true member was he shall receive Maledon, injury produces the volved but it is clear only which what the Court, period incapacity.” decision been longest The would have had two or three however, specific clause had been made it clear that this involved. only application had claimant where Court, The case of discussing after specific injuries. Court fur- sustained The Reciprocal Pol- Lumbermen’s Association v. statute, interpreted saying: ther lard, 10 983 Tex.Com.App., (1928), held provision
“It is true the above that: [1st part the latter is modified clause] specific “Inasmuch as the schedule statute, the same section provides compen- the loss of the hand provides: ‘But this section shall cent, per sation at the rate of 60 liability for the affect average weekly wages for 150 of more or the loss the use thereof having sustained defendant member, for member than one cent, per inca- this sched- pacity hand, to he to is entitled ule, specific compensation for cent, cent, per per as to under this law shall be cumulative compensation period ” balance of time and not concurrent.’ already deducting after the 19 weeks incapacity allowed total to him for on illustrate the The Court then went to cent, per same of his member or part meaning clause. latter average weekly wages a quote: I 131 weeks.” however, think, latter “We part only cases to the section refers IN VIEW THE OF ILLUSTRATION employee’s disability results COURT, where the GIVEN BY IS THE THERE specific injury, and from more than one THAT IF IDENTI- NO DOUBT BUT results disability not to where the cases CAL THREE TO SPECIFIC INJURIES SUSTAINED, in- general injury, specific and a BEEN MEMBERS HAD from jury." (Emphasis added.) THE HAVE ALLOW- COURT WOULD ED THE FOR SAME RECOVERY language that the I construe to mean course, number leg, EACH. Of disability applies first clause where compensable been weeks would have general injury results from a it is increased to seems me that 200. It to ap- injury; that the latter clause perfectly the first clause of Sec- clear that injuries. plies to in cases confined applies general in cases where gave this illustra- in Maledon injury simul- is involved either alone or tion : taneously injury, and with a where applies every latter clause case totally illustrate, if an “To only specific compensated. are be disabled 20 weeks reason hand, case of Nolan v. Ernest Construction time and at same of one Company (1942), 243 Ala. 10 So.2d totally 10 weeks is also disabled for involved facts involved similar those foot, permit- he be loss of one would the Work- 279 of disability ted case. Section members; State Act of the be- men’s each this because to the injury spe- Alabama which is somewhat similar be cause each such would mean been construed added.) has (Emphasis cific.” of the Court affirm the shall of use of a total loss Appeals. the member Civil to loss of equivalent considered paid than shall loss less specified in the during of the time CALVERT, (dissenting). Chief Justice total loss or total schedule for member, extent respective which the in this proper judgment to be entered member, loss. pay- to its total bears case—whether to cumulate *14 under the a use member use found The loss of ments for total loss of a definition respect is tied into to the left Alabama statute exist with by de- 279(C)!, leg hand, forth in of re- member set hand and the left of a use claring spondent, loss of the for that total to allow or equivalent only member shall be considered as total disabili- one of such loss member, requires, primarily, interpretation to the loss and that of that ties — “ 8306, pre- paid at the Article paragraph less than total ‘shall be of sec. 12 of one time during scribed rate Vernon’s Texas Civil Statutes. loss specified total in the schedule I I not the outset should state that do At member, respective or total loss of use interpretations agree with certain hereto- injury the member
which the extent of the ” I example, paragraph. For given fore bears to total loss.’ its interpretation by am this convinced that Employers v. in Texas Ins. Ass’n case that agreed It was in the Alabama “ 255, Patterson, 573, 192 Tex. S.W.2d fifty percent, the claimant sustained ‘a Employers followed in Texas Ins. Ass’n use, (?) manent total but Tex.Civ.App., 282 Hollingshead, disability percent, dur- one was hundred ” 305, refused, wrong, now writ and should ing forty opinion weeks.’ construe be disavowed. permanent partial loss to hold when a a of a member with use is concurrent deals Sec. 12 of Article 8306 it, total loss of use of the number injuries paid to be for benefits compensable for latter weeks allowed body. put members of the To be of com- must deducted from the number proper perspec- to be matters discussed pensable weeks for the former. allowed tive, pertinent 12 is paragraph of sec. Applying that rule to the facts quoted: case, the each award for the loss basis using member is determined as a sustains “Where con- 8306, 12, the schedule section Article injuries resulting in concurrent current supra, provides com- which the number of incapacities, compensa- he shall receive pensable weeks for the of the use of a loss produces for Therefore, leg. hand hand and a each for incapacity; longest period of compensable there would be ISO a liability shall not for Section affect How- weeks for loss of use. the loss of the the concurrent loss or ever, compensable during since 59 of the (1) than mem- use thereof more existed, num- weeks total loss of use ber, compensation is for ber of weeks should be from deducted schedule, compensation provided in this leaving weeks law shall under this Recovery of each hand. loss con- as to time be cumulative at in leg is arrived use of the current.” manner, except basis would be like paragraph, meaning of the To find the compensable as reasonably given mean- may Thus, ade- whether statute. leg- something ing, to know allowed, contemplated we need quately Work- judicial history of the islative and statute. of that Act, Patterson with particularly men’s quoted above. Section 12. history of Section Compensation Act proper that a The first Workmen’s In Patterson the Court held Regu- Leg., quoted paragraph did passed Acts 33d in 1913. construction of the was That Act also Session, p. 429. benefits for total ch. not authorize cumulated lar providing fingers benefits the use of each of three contained Section to the injuries. fifty per For cent twelve weeks toes, etc., compen- hands, feet, fingers fingers, each of the of the use of by sever- that in- twenty-six held provided was “for the weeks. The Court sation (both rewritten the Act was asmuch as the loss of ance.” When Session, fingers ch. was Leg., Regular the three partial) 35th of each of Acts pro- expanded gov- temporary, payment of benefits was p. injuries, compensation, clause of the as to erned the first vide *15 clause, of members last clause permanent and or loss not the last loss of the appears language in the Act language paragraph, in the in the same permanent “for today.. opinion, applicable were “to being benefits The enumerated members, use, to tem- which the and not the loss” of the permanent, reasons were porary Three to be “cases loss of use.” Act declared opinion conclusion incapacity,” partial assigned and it was in the payment, mem- con- (1). of the “The “permanent of the use reached: Because temporary loss templated by equivalent to and draw the ber” should be compen- body is member. of the compensation as loss of a of use of a member same measured incapacity and is Section sation for Act of 1917also contained ”*** incapacity in the consideration duration of the paragraph under cumulated, weekly payments, In Act. language “The of the exact period of the con- throughout beyond continue well many to Section amendments incapacities.” (2). Because the been current years, has never paragraph this speaks only of paragraph last clause changed. “ no ref- of the use’ with ‘loss or the loss years passage the Act after Some ten Be- temporary (3). use.” erence to loss of injustice,” Court, prevent “to of 1917 this loss or “speaks of the cause last clause provi- began “legislate” into Section mem- than one more the use of the loss of according to which on its face and sions is ‘for which ber obviously provisions did plain the Section ”; “The and that schedule’ provided in this comprehend. But whether not have or definite sets out schedule interpreted rightly wrongly, this Court body members different the loss of com- provide for and limit the Section to ** schedule is no “There paid pensation which should be use.” temporary losses payments temporary resulting in use, use, partial loss of loss of respect for Avowing the utmost Jus- temporary partial use. See loss of Patter- rendered Court who tices Pollard, Reciprocal Ass’n v. Lumbermen’s who the able son decision and Justice 982; Tex.Com.App., (1928), 10 S.W.2d suggest opinion, I nevertheless authored Seale, Tex.Com. Casualty Petroleum Co. v. is sound. three reasons that none of the 364; Un Fidelity App., (1929), 13 S.W.2d or- three reasons I shall discuss Tex.Com.App., Munday, Casualty ion Co. v. listed them. have der in which I 926; American (1932), 44 Great S.W.2d be ex- appears to first reason Stultz, Tex.Civ.App., (1). The Indemnity Co. v. com- concept that predicated pressly on refused. It writ (1933), 56 S.W.2d temporary pensation payments for amended having after thus Section was mem- named specifically face of one of brought face to use that the Court pay- also body compensation for loss or loss of use would result actual bers of the long after the payments should ment of benefits incapacity, and that concept presumed incapacity had That ended. incapacity ends. end when provided for purpose (2). It true that the last clause many rejected been has speaks only or loss of of loss over, correctly so. It was ex times temporary loss with no reference rej respect pressly to a ected with interpreta- justify but that does by permanent use followed applies last clause Fidelity of a hand in the first clause to losses of use and manent Munday, Casualty Union Tex.Com. Co. losses of use. App., and as to interpreted light history. of its should be loss of use followed interpreted It as it would should be now eye in Great Amer of an interpreted when it was written have been Stultz, Tex.Civ.App., Indemnity ican Co. v. in 1917. addition, In 56 S.W.2d writ refused. many Appeals’ deci there are Court of Civil quoted paragraph of 12 was spe rejecting involving it. sions cases long before Pollard written and enacted existence, percentage and injuries, cific (1929), Munday (1932) (1928), Seale proper incapacity duration not even firmly that Sec- (1933) Stultz established *16 fact, subject inquiry. As a of the matter total, impliedly temporary covered record that in Patterson no issues discloses temporary partial permanent partial and findings were submitted and no were made Viewing members. losses of use respect incapacity. to setting which it was the the there is no sound basis enacted use, partial, Once a loss or loss of total or that first was intended saying the clause temporary, established, permanent or is the apply temporary Legislature to the .to presumed to benefits rests in inca- and the second clause to losses pacity Legislature prede- which the has use. manent losses of may may actually termined but which or By given providing exist. benefits for a were declared All of the described losses loss of a number weeks for or loss of use permanent, partial inca- be “cases body, Legislature member of se- “permanent of the use” pacity,” loss workman, verely limited benefits of the equivalent declared to be of a member was who, loss, because of the suffers Legislature member. The the loss of the labor, compensated incapacity to total immediately placed quoted paragraph by relieving limitation workman following losses. Its last schedule of any incapacity proving burden of stated, states: “Where and still first clause By interpreting 12 to whatever. Section concurrent sustains specific injuries compensation include incapacities, he resulting in concurrent temporary total, permanent par- producing the in- compensation shall receive use, temporary partial tial and losses of period longest produces jury which necessarily concept adopted Court also * * quite incapacity; *.” thus seems It presumed incapacity as related thereto. that Legislature wrote clear that when spoke of may clause into If in Patterson the said that speaking injuries,” it was presumed incapacity, “concurrent speaking of “permanent injuries producing “loss” and holding benefits for first reason for spoke members; when it temporary loss of use” of use cumulated cannot be compensation employee receiving perma- under the but benefits for statute longest totally produces “the be, injury which is nent loss loss of use can or incapacity,” speaking of period it was incongruous. This for the reason weeks allocated number of permit greatest cumulation of benefits for “per- given third reason for the period prestimed (3). 12 as a involves, any in Patterson partial incapacity” for conclusion reached manent judgment, my a misconstruction of the injured. Legislature could not then so paragraph. later last clause of the The clause have the courts would known reads: “but Section- shall not affect imply losses liability for concurrent or the into the schedule. (1} of the use thereof of more than Moreover, makes sense first clause member, compensation for which member apply to concurrent if it is held to * * provided is in this schedule use, perma- whether losses of Patterson reasons that since schedule- nent; ap- held it makes no sense if it is provides compensation only for plicable of use. to other concurrent losses members, losses of use of the second clause says workman The clause that where the inapplicable is losses of use resulting concurrent sustains of members. suggest reasoning that this incapacities, receive “he shall misplaced is erroneous and derives from compensation only injury emphasis; emphasis of the lan incapacity.” produces period longest guage should be on the members for which applied If the clause is to concurrent compensation provided in the schedule use, perma- temporary or losses of whether rather degree than on the or extent the- nent, recovery in- pro use for which jury producing longest period of in- “the vided in the schedule. The members for always capacity,” presumed, actual or will provide greatest amount of benefits. hands, fingers, arms, toes, legs,, schedule are applied If it is to other concurrent losses eyes, me, quoted etc. language To means that the section “shall not affect in- producing longest “the liability for the concurrent loss or the loss *17 capacity” provide will the least often of the use thereof of more than one” amount of benefits. the schedule, members listed in the but But since the second Patterson states that for concurrent to “ speaks only the loss of clause ‘loss or members “shall be cumulative toas use,’ the time with no reference to and not concurrent.” use,” appli- held that clause will be My interpretation quoted language of the cable to losses or losses plausible made the more fact that the strange presents use. This conclusion nose, body certain members of the —the paradox temporary losses of reading ears, ; etc.—are not listed the schedule by express use into the schedules which and I expressed by share the view Justice perma- up language for losses and are set Folley in Employers’ Ass’n v. Ins. it refusing nent to read losses Holmes, 390, 402, 145 Tex. 196 S.W.2d phrase, into the “loss or the loss of that compensation for of members use,” appears where it in the second clause provided in omitted from the schedule is quoted paragraph quali- without covering paragraph 12 last of Section fying adjective, “permanent.” It seems incapacity, partial “all in- other cases of me reading there is more reason for im- any disfigurement which will cluding temporary losses of use the last clause into occupational pair future usefulness or paragraph quoted than there is employé.” injured opportunities benefits; reading them into the schedules wrong and Patterson But if I be nothing Act to indi- even and I can find in the emphasis proper placing in- as to cate that use” should “loss or loss of again en- language, here we quoted in the benefit clude paradox this Court schedules, strange include it in the counter the but should not read losses quoted paragraph. refusing to second clause of the compensation for liability for clause that paragraph quoted clause the last into type defined injuries of the benefit them into having read after bo continue preceding schedule should schedules. exist, should that benefits therefor two clauses to time. The cumulated as CONCLUSION together. cannot stand Patterson firmly that the convinced I am are clauses I the two would hold paragraph quoted interpretation paragraph repugnant as to render so question remains as erroneous. County Hill meaningless and void. See What did interpretation thereof. proper S.W.2d Sheppard, 142 Tex. v. enactment Legislature intend void, paragraph Having declared the 261. Section paragraph as a internal that with no I would then hold specific in- exclusively with which deals prohibition against cumulat- in Section juries ? injuries, ing payments and none 1917 Act history of the legislative elsewhere, au- payments is cumulation of meaning of light on the throws no thorized, payments be whether the in its paragraph; in the bill manent, temporary, losses total or introduced language when bill was use; pay- cumulate the and would no amendments Legislature, and to- ments in a of value descending order paragraph offered. The Com- were injured employee, allowing Alabama, pensation Minnesota Acts of greatest possible under the amount paragraphs, but similar Tennessee contain specific injury light schedule in such paragraph in those Acts is set judge. findings of the the trial deci- benefits that context of dissimilar Trinity Ins. Hargrove Universal See are of those sions of courts states Co., Finally, 243, 256 73. 152 Tex. helpful arriving meaning of at the except I would hold that as otherwise paragraph in the Texas Act. 11a, cumula- 12 and Sections beyond tion of could not extend are two clauses of weeks the maximum number of utterly incompatible repugnant. When para- provided in 11 and the last Section in the Act was included graph payment of com- losses Section 12 dealt pensation incapacity. *18 (“severance”, to the according of members findings Applying my views to the “permanent 1913) Act loss of case, judgment in the trial court’s member” was declared * * * per should have been for week for “equivalent $35.00 loss to be to temporary 177 weeks for a member that member.” Both loss of leg, per of the hands and the two permanent $17.50 a mem- loss of the use of permanent partial week for 91 weeks for perma- ber were declared to be “cases reaching (thus loss of use of the left hand nent, partial incapacity.” in the When loss the schedule limit of 150 weeks for quoted paragraph the first clause of the per hand), of use of the left and $14.00 where an em- Legislature declared that permanent partial 32 weeks for week for re- ployee sustained concurrent hand, right reaching of use of incapacities, neces- sulting in concurrent of 300 weeks point limit preceding at this the outside sarily kind in the defined partial in- compensation schedule, for which he should “receive recovery of capacity payable, is only produces the did petitioner $8,325.50. inasmuch as prohibited, But longest period incapacity,” it portion appeal object from that by necessary not to or implication, cumulation of cumulating, judgment hand, Legis- trial court’s benefits. On the other time, compensation provided expressly in the second as to lature members, partial the area of cumulation of of use of the three specific injuries keeping would affirm the other Court provisions leaving Appeals. Civil Legislature, responsibility prop- where the re- 12 of Article 8306 has been erly rests, sup- any to correct Patterson with- enacted since the decision posed inequities. change quoted paragraph. out in the I am Instead, not the Court chooses course of unaware or unmindful of rule that interpreted compounding the error of Patterson now when a statute has been holding quoted clause of court and it that the second of last resort is re-enacted paragraph applies language, presump- change of also without partial judicial interpretation producing is is that adopted by Legislature of a the first clause does and becomes a member and Fidelity only not. holding the statute. & Not is that as devoid analysis Austin, Bonding City logical 112 Tex. basis in of the statute Co. v. Patterson, is face 1029. The rule is not it also flies S.W. flexibility ra- important phase inflexible. Its instant Patterson’s recognized situation is in 50 tionale. second It will be recalled Am.Jur. Statutes, 443, in given these words: “The rule third in Patterson for reasons § not, however, conclusive holding under all cir- clause not the second could apply (2) The fact that a cumstances. statute losses of were re-enacted ju- without alteration because after the last clause of “ interpretation, necessarily speaks dicial does not or the loss of ‘loss interpretation preclude establish such use’ as to with no reference to use”; overruling the court from (3) its former de- the last clause because Moreover, “speaks cision.” repugnant charac- of the loss or the ter para- of the two clauses of quoted of more which mem- than one ‘for graph called not to the ber attention this sched- Court, ;” nor was ule’ considered “The schedule sets out and that Court in Patterson. While definite for the loss of dif- could ** body have ruled on the matter of ferent its own voli- tion, “There see Southern Canal is no schedule of Co. v. State Engineers, Board of Both Water losses of use.” reasons 159 Tex. application exclude the fact of the last clause of is that it did quoted do so and the Court now has the question use; losses before it for the is no reference first there time. the clause to and there The situation differs not at all from one is no payments for schedule of interprets which the Court a statute appears that losses of rtse. It thus constitutionality case to have its insists, on basis of while the Court *19 question called in in a later case. In that specific holding in decisis, the stare that situation the Court would not hesitate to followed, it also disavows Patterson be declare the statute void for unconstitu- in for Patterson given most of the reasons tionality merely because on a former oc- holding. interpreted If casion it had the statute. benefits for holding that repugnancy, statute is for it new void may just cumu- be partial as void as if it for un- manent loss of were void loss constitutionality. total Hollings- lated with benefits for Patterson and temporary total for wrong suggest of use but benefits patently head are so that I be, strange may not leads the loss of use that we overrule them and declare By way quoted of illustra- interesting and results. repugnancy; for void employee an tion, that an and in consider that we then make a fresh start late, dis- it is too or even a violent sustained not average weekly wage of $100.00 decisis, to re- regard the rule of stare a foot to a hand and interpretation in Patterson (a) permanent total cant the in: which resulted foot; quoted para- declare the of the hand and the of the use loss graph repugnancy. There partial void (b) 90% foot; overruling Pat- barrier to insurmountable (c) hand lay not a rule of terson. It down use of hand did total may property have re- on which others weeks and 10% injured simply It denied lied. use of foot. he workman to which hold- by the Patterson as extended Under justly entitled under Com- the Workmen’s case, re- these ing get we would this pensation interpreted. properly Act That (a), cumulated sults: In benefits would be injustice cannot be but further remedied per paid employee would be $35.00 injustice upon perpetrated not should be use of week 150 weeks injured workmen because hallowed of some per 125 weeks hand week for and $35.00 concept interpreta- of stare decisis in the foot, a total for loss of use Supreme tion of a statute. As said $9,625.00. be (b), would In benefits Court of United in United States States employee paid be cumulated and would Raynor, 540, 552, v. 302 U.S. 58 S.Ct. per for the combined $31.50 week 413, 420, 82 L.Ed. “One decision $8,662.50. weeks, of 275 a total of construing approach, an act does not (c), 124 weeks benefits for dignity interpretation.” well of a settled cumu- loss of use the hand could not be problem with a Confronted similar Penn- lated with benefits for sylvania-Reading Seashore Lines v. Board foot; since in Utility Com’rs, of Public 5 N.J. such circumstances the clause of first Supreme A.2d New Jer- quoted paragraph expressly directs sey, speaking through Van- Chief Justice employee compensated only be derbilt, said: period of “producing longest incapacity,” employee paid be could urged “It on us that the con- only compensation provided for 10% put struction on the statute for 125 the foot O’Connor case Board of [O’Connor $437.50, lose a total of and would Utility Com’rs, Public 129 N.J.L. benefits 29 A.2d became a 390] $4,340.00. the hand in the sum of That change, may statute which we will unless be the result such a case power residing solely Legis- prepared this “legislate” Court is some However, legis- lature. rule of Legisla- more and declare when the acquiescence settled lative in the well expressly provided ture that the interpretation of a is but one statute paid “injury should principles guide may several produces incapacity” longest period arriving mean- a court in the true at really paid meant that he should more ing legislative of a act. It is no “injury which under the schedule statutory than an aid construction provide greatest merely it is one factor recovery.” language give meaning to the effort * * * The doctrine legislating of the statute. There should be end of *20 uniformly is not perhaps this field too here contended Court. It is permitted controlling; it must not be tem- late to recant the decisions read in their search total, tempo- the courts porary fetter decisis principle stare light. The rary losses of into enti- 8306; behind the doctrine is lies in Sec. Art. schedule respect, must blind us but it tied to realities; wor- an idol to be is not judicial following either a
shipped in statutory
precedent or an antecedent
construction.” to declare failure
Because of the
quoted paragraph void judg- affirm the
repugnancy and then Appeals, I of Civil
ment of Court
respectfully dissent. STEAKLEY, JJ.,
HAMILTON and
join dissent. in this UNION ASSURANCE
COMMERCIAL Petitioner, COMPANY, Ltd., FOSTER, Respondent.
R.L.
No. A-9942.
Supreme of Texas.
May 1964.
Rehearing June 1964. Denied Kratochvil, Schirmeyer L. G.
T. G. Houston, petitioner. respond- Houston, Schulze, Philip
R. ent.
SMITH, Justice. in the 157th instituted This suit Texas, County, of Harris District Court