I conclude that under the facts averred the mandamus sought would lie. Associate Justice Blair of the Court of Civil Appeals developed this matter fully and ably in his opinion (184 S.W.2d 302), *Page 384 and since I am in accord with his conclusions on the point, I will not particularize about it.
But I cannot agree with the holding of the Court of Civil Appeals as to the maximum compensation payable under the circumstances obtaining here. In my opinion, the Industrial Accident Board's construction of the statute should have been upheld. Moreover, so much uncertainty is prevalent about how to construe this statute that I consider it urgent, even imperative, that we express our views so those interested will know what course to pursue. Even had I been in agreement with the conclusion that the mandamus would not lie, still I take the view that we are under a compelling duty to settle the existing uncertainty although our holding on the point would not be necessary to a determination of the case. Confronted by a like situation in Texas Midland R.R. Co. v. Byrd, 102 Tex. 263,115 S.W. 1163, 20 L.R.A. (N.S.) 429, 20 Ann. Cas. 137, Chief Justice Gaines said:
"`* * * In the view we take of the case it is not necessary that we should pass upon the assignment, but we consider the question of such importance as to make a ruling upon it appropriate."
The court proceeded to rule on the question, and subsequently when the ruling was assailed as dictum it was declared authoritative. Parker v. Bailey (Tex. Com. App.),15 S.W.2d 1033. Also see Sutherland v. Friedenbloom (Tex. Civ. App.),200 S.W. 1099 (writ refused); 11 Tex. Jur. 836. Accordingly, because of the imperative need of settling the uncertainties to which I have adverted and in harmony with applicable precedents, I shall undertake a construction of the statute under consideration.
The facts are adequately stated in the majority opinion.
The portion of the statute which concerns us here is the following language from Section 12 of Article 8306, Tex. Rev. Civ. Stat. 1925:
"* * * The compensation paid therefor shall be sixty per cent of the average weekly wages of the employee, but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the Board may determine. Whenever the weekly payments under this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the Board." *Page 385
The parties agree that Glenn's total compensation period would extend through only one hundred fifty weeks. But they disagree whether the basic maximum figure of $20.00 in the quoted passage relates to the compensation rate or to the wage rate. So the question narrows immediately to a determination of what is the antecedent of the $20.00 maximum, whether the compensation to be paid or 60% of the average weekly wages upon which the compensation for partial incapacity is to be computed. The Industrial Accident Board takes the view that the $20.00 fixes the maximum weekly compensation, while the insurance carrier and Glenn insist that it fixes the maximum of 60% of the average weekly wages upon the basis of which compensation for a partial loss of the use of the hand is to be calculated.
In four other places in Article 8306, the maximum of $20.00 occurs. (Section 8, 10, 11, and the first subparagraph of Section 12.) In each of these other four instances the $20.00 maximum refers to the compensation payable and not the maximum wage upon which compensation is to be figured. In fixing these maximums, it is significant to observe that the Act follows largely the same pattern of sentence structure throughout. If we should agree with the contentions of Glenn and the compensation carrier, we would be obliged to ascribe one meaning to the language the first four times it is used and a different meaning to it when it occurs in the passage we are now considering, although phrased substantially in the same fashion as in the four previous instances.
This language was first construed by the Beaumont Court of Civil Appeals in 1921, when the court's interpretation was contrary to that urged by the Industrial Accident Board here. Western Indemnity Co. v. Milam (Tex. Civ. App.), 230 S.W. 825 (writ refused). In 1923 the El Paso Court of Civil Appeals reached a conclusion directly opposite to that announced by the Beaumont Court in the Milam case. Maryland Casualty Co. v. Ferguson (Tex. Civ. App.), 252 S.W. 854 (writ refused). Some three years later, the Ferguson case was expressly followed by the Beaumont Court in Dohman v. Texas Employers' Ins. Ass'n (Tex. Civ. App.), 285 S.W. 848 (no application for writ of error), where it was said of the method of computation applied: "This is the rule followed by the Industrial Accident Board, and the courts will follow the construction placed upon the act by the board, unless clearly wrong."
It is interesting to observe that in the opinion in the Dohman case, the Beaumont Court did not mention its previous *Page 386 inconsistent holding in the Milam case although in the meantime it had followed the Milam case on one occasion. Millers Indemnity Underwriters v. Cahal (Tex. Civ. App.), 257 S.W. 957.
In 1928, the United States Circuit Court of Appeals for the Fifth Circuit followed the Ferguson and Dohman cases. After quoting the language of the Act which we are now considering, that court said:
"* * * What is forbidden by the quoted language to exceed $20 is the weekly compensation payable to the injured employee. That language does not indicate a purpose to require the sum of $20 to be substituted for the amount of 60 per cent. of the average weekly wages, where the amount actually exceeds $20." Maryland Casualty Co. v. Laughlin, 29 F.2d 343.
It has been urged that the language now before us is plain and unambiguous, construes itself, and consequently that there is no need or occasion for a judicial determination of what it menas. Such a position is thought quite unrealistic. If the provision under study were simple and unambiguous, manifestly so large a number of eminent jurists would not, as it reflected in the decisions, so frequently have differed about what it means. The confusion in the precedents coupled with a rationalization of what this statute was intended to mean argue mostly convincingly that the passage is both uncertain and ambiguous.
If it be agreed that the statute is uncertain and ambiguous, two well-settled rules guide us in construing it. First, the practical interpretation of the Act by the agency charged with the duty of administering it is entitled to the highest respect from the courts. And this is especially so when that interpretation has been long continued and uniform. Maryland Casualty Co. v. Ferguson, supra; Dohman v. Texas Employers' Ins. Ass'n, supra; 39 Tex. Jur. 235 et seq.; 42 Am. Jur. 392 et seq. Second, the Act is to be given a liberal construction in favor of the injured employee in order to give the relief intended and to effectuate the beneficient purposes of the legislation. Texas Employers' Ins. Ass'n v. Volek (Tex. Civ. App.), 44 S.W.2d 795 (affirmed, Tex. Com. App., 69 S.W.2d 33, certiorari denied293 U.S. 598, 55 S. Ct. 116, 79 L. Ed. 691; 45 Tex. Jur. 363 et seq.
The undisputed evidence shows that the Industrial Accident Board, which is charged by statute with the duty of administering the Workmen's Compensation Act, has uniformly followed the construction it urges here since 1918, which dates back *Page 387 practically to the first workings of the Act. Under the circumstances, this long-continued and uniform interpretation of the statute should be accorded the highest respect and should not be rejected unless for compelling reasons, — reasons which in no sense obtain here.
Moreover, the interpretation urged by the Board harmonizes with the other rule to which I have adverted, — the rule requiring that the Act be construed liberally in favor of the injured employee.
Upon the considerations I have presented, I am impelled to agree with the construction of this statute which is urged by the Industrial Accident Board.
In deciding this cause, the Court of Civil Appeals took the view that the case of Fidelity Union Casualty Co. v. Munday (Tex. Com. App.), 44 S.W.2d 926, compelled a different conclusion. I do not so regard it. In that case, the Fidelity Union Casualty Company was urging that proof of economic incapacity, i.e., impairment of earning capacity, as distinguished from physical disability, was necessary to a recovery for "a temporary total loss of the use of a hand, or a permanent partial loss of the use of that member." But the court, in holding that the injury was compensable under that part of Section 12 which is quoted in its opinion rather than under other provisions of the Act, rejected that contention and held in effect that proof of physical disability was sufficient. In stating that "in conference with the Supreme Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled," the Commission of Appeals was referring to cases which had held that injuries such as that involved in the Munday case were not compensable under Section 12. See, for example, Texas Employers' Ins. Assn'n v. Price (Tex. Civ. App.), 300 S.W. 667 (writ dismissed 117 Tex. 173, 300 S.W. 672).
A misunderstanding of the holding in the Munday case arose, as I appraise it, from this situation: The trial court had allowed Munday $20.00 a week for 15 weeks of temporary total loss of the use of his hand and $15.00 a week for 135 weeks of 75% loss of the use of the same hand. The Court of Civil Appeals reformed the judgment to allow recovery of $15.00 for 150 weeks.26 S.W.2d 676. Now in fact, 60% of Munday's average weekly wages exceeded $20.00. Counsel for both Munday and the Fidelity Union Casualty Company proceeded erroneously upon the assumption that $20.00 was the correct basic figure of which 75% should be taken in arriving at Munday's compensation for *Page 388 the partial loss of the use of his hand. The court was not asked to say what the correct basic figure was, the arguments of the parties on file in the case do not raise the point, and it was not in any sense up for decision. Accordingly, the Munday case is not authority for the correctness of the construction of the statute urged by Glenn and the compensation carrier here.
The argument is advanced that under the Industrial Accident Board's construction, two employees working side by side, with average weekly wages of $75.00 each, might be injured in the same accident, one losing a hand entirely and the other suffering only a 45% incapacity to his hand, yet both would be compensated at the same rate. This is true, not because of any misinterpretation of the statute, but because the Act prescribes certain maximums of compensation above which payment will not be awarded no matter how high the wages go. Illustrative of this situation, let us suppose the same two workmen, each with an average weekly wage of $75.00, are injured in the same accident, one suffering a 50% and the other a 75% permanent partial incapacity. The weekly compensation of each shall be equal, under Section 11 of the Act to "sixty per cent of the difference between his average weekly wage before the injury and his weekly wage earning capacity during the existence of such partial incapacity, but in no case more than $20.00 per week." The difference between the weekly wages of the first workman before the injury and afterwards is $37.50; in the case of the second workman, the difference is $56.25. Sixty per cent of each figure produces an amount in excess of $20.00, so under the Act both receive the same compensation, the $20.00 weekly maximum, although one is injured 50% more than the other. Associated Indemnity Corp. v. McGrew,138 Tex. 583, 160 S.W.2d 912. Like illustrations might be drawn from the situation of two workmen totally and permanently incapacitated, one with a $50.00 and the other with a $100.00 average weekly wage. Both would receive the same compensation, the $20.00 weekly maximum for 401 weeks, although at the time of the accident one was making twice the wages of the other. Section 10, Article 8306.
Conformably to what has been said, I conclude the Industrial Accident Board's interpretation of the provisions of the statute under consideration is correct and should be sustained.
Opinion delivered November 14, 1945.
Chief Justice Alexander and Associate Justice Sharp concurring. *Page 389