This is an appeal from a judgment in favor of the claimant, A. C. Watson, against the insurance carrier, Traders General Insurance Company, in a workmen's compensation case.
The court submitted to the jury the following special issues, which were answered as shown:
"1. Do you find from a preponderance of the evidence that the Traders General Insurance Company was the carrier of an insurance policy covering the employees of Charles M. Watson on the 13th day of May, 1937? Answer: Yes.
"2. Do you find from a preponderance of the evidence that A. C. Watson sustained a personal injury on or about the 13th day of May, 1937, in the manner alleged by him? Answer: Yes.
"3. Do you find from a preponderance of the evidence that such injury, if any, sustained by A. C. Watson on or about the 13th day of May, 1937, was received by him in the course of his employment with Charles M. Watson? Answer: Yes.
"4. Do you find from a preponderance of the evidence that A. C. Watson sustained any incapacity to work or labor as a natural result of such injury, if any, sustained by him on or about the 13th day of May, 1937? Answer: Yes.
"5. Do you find from a preponderance of the evidence that A. C. Watson was totally incapacitated as a natural result of such injury, if any, sustained by him on or about the 13th day of May, 1937? Answer: Yes.
"6. Do you find from a preponderance of the evidence that such total incapacity, if any, sustained by A. C. Watson, is permanent? Answer: Yes.
"7. Do you find from a preponderance of the evidence that the payment of compensation to A. C. Watson, if any, in weekly installments instead of a lump sum (if compensation is due to be paid to A. C. Watson) will result in a manifest hardship and injustice to A. C. Watson? Answer: Yes.
"8. Do you find from a preponderance of the evidence that the incapacity of A. C. Watson, at this time, if any, to labor, is not due solely to cause or causes other than such injuries, if any, sustained by him on May 13, 1937? Answer: It is not due solely to other causes.
"9. Do you find from a preponderance of the evidence that A. C. Watson worked substantially the whole of the year next preceding May 13, 1937? Answer: Yes.
"10. What do you find from a preponderance of the evidence was the average daily wage of A. C. Watson for the days he actually worked during the year next preceding May 13, 1937? Answer: $6.00 per day.
"11. Do you find from a preponderance of the evidence that other employees worked substantially the whole of the year next preceding May 13, 1937, in the same class of work as that of A. C. Watson, in the same or similar employment and in the same or neighboring place? Answer: Yes.
"12. What do you find was the average daily wage of such employees, if any, for the days they actually worked, if any, for the year next preceding May 13, 1937? Answer: $6.00 per day.
"13. Do you find from a preponderance of the evidence that such incapacity, if any, sustained by A. C. Watson, was due solely to his pricking his finger with a knife? Answer: No.
"14. Do you find from a preponderance of the evidence that Charles M. Watson had actual notice of such injury, if any, sustained by A. C. Watson within thirty days after such injury, if any, occurred? Answer: Yes."
(The instructions given in connection with the issues are omitted.) *Page 1105
The court entered judgment for claimant amounting to $20 per week for a period of 398 weeks. The judgment, after quoting the verdict of the jury, recites "and it appearing to the court from the undisputed evidence thatsuch total and permanent disability commenced on May 30, 1937, * * * and that A. C. Watson is entitled to recover * * * in a lump sum compensationfor a period of 398 weeks at $20 per week * *." (Italics ours).
From the judgment rendered insurer has appealed.
The insurer by its first four propositions presents its contention that the judgment must be reversed because there was no issue submitted to the jury whereby the jury could, or did, find when claimant's total permanent incapacity began, or the number of weeks claimant will suffer total disability. Prior to submission of the charge to the jury, insurer specifically excepted to the charge because it did not submit an issue whereby the jury might determine when claimant became totally disabled, or when his "injury" became permanent, "therefore the court does not have any date from which to begin the time when compensation shall run thereon." The exception was overruled and the point duly preserved in the insurer's amended motion for new trial. Claimant says that insurer's objection and exception was insufficient; that it was the insurer's duty to submit a proper issue. He cites as authority therefor, among other cases, Harris v. Thornton's Dept. Store, Tex. Civ. App. 94 S.W.2d 849, and Harris v. Leslie, Chief Justice, 128 Tex. 81, 96 S.W.2d 276. The cases cited do not support the proposition. The issue was not defensive. The burden to obtain a finding thereon rested on the claimant, not the insurer. Special issues numbers 2, 4, 5, and 6 are the only ones directly relevant to the question under consideration. In answer to said issues the jury found that claimant sustained a personal injury about the 13th day of May, 1937; that claimant sustained some incapacity to work as a natural result of the injury of May 13th; that claimant was totally incapacitated as a natural result of the injury sustained by him on May 13th and that such total incapacity sustained by the claimant "is permanent." (Italics ours)
By the provisions of Art. 8307, sec. 5, Vernon's Tex.Civ.St. 1936, art. 8307, § 5, the burden of proof is placed upon the claimant to establish facts which entitle him to recover compensation. This includes the duration of disability. It has now been definitely determined that the compensation period, the maximum period being 401 weeks, begins on the date of the injury, and terminates, in all events, at the expiration of 401 weeks after the date of the injury, and not from the date of development of incapacity. Texas Employers Ins. Ass'n v. Guidry,128 Tex. 433, 99 S.W.2d 900; Jones v. Texas Employers' Ins. Ass'n,128 Tex. 437, 99 S.W.2d 903. It results, even if the claimant's total incapacity is permanent, that his maximum recovery could be for no more than $20 per week from the date of development of incapacity until the expiration of the period of 401 weeks from the date of injury. He is entitled, in any event, to compensation for only the number of weeks he actually suffers incapacity during the period of 401 weeks immediately subsequent to the date of injury. It is evident that in a trial before a jury claimant must, by a jury finding, or by the undisputed evidence, establish facts from which the amount of recovery, or rate and period of compensation, may be arrived at by mathematical calculation.
In Texas Employers' Ins. Ass'n v. White, Tex.Com.App., 99 S.W.2d 904, 905, the jury had returned a verdict in which it was found that White "in August, 1930" sustained an injury, etc., and in "March, 1933" became totally and permanently incapacitated. Judgment was rendered for White for compensation for a period of 401 weeks from the date incapacity began. The court said: "The judgment of the trial court is erroneous to the extent that compensation is awarded for a period extending beyond the end of 401 weeks from the date of the injury. * * * We are unable to reform the judgment, for want of information as to the date the injury occurred and as to the date total incapacity began. The verdict of the jury furnishes no more definite information in those respects than to give the month and year the respective events occurred." (Upon filing of a remittitur "sufficient to account for the greatest possible amount of excessiveness in the judgment" the judgment was affirmed. 129 Tex. 659,107 S.W.2d 360, 361.)
This is not a case where the court attempted to submit an issue requiring the jury to find the number of weeks claimant would suffer total incapacity, or the date total permanent incapacity began. On the contrary, the trial court was of the *Page 1106 opinion, and found in the judgment, that the undisputed evidence showed claimant's total permanent disability commenced May 30, 1937, and, such date being approximately three weeks after claimant's injury, the court awarded compensation for a period of 398 weeks. After most careful consideration we find ourselves unable to agree with the conclusion of the eminent trial court that the undisputed evidence shows claimant became totally and permanently disabled on May 30, 1937. It would serve no good purpose to lengthen this opinion by quotation of testimony from which we conclude that it is not indisputably shown that claimant became totally and permanently disabled on said date. Unless conclusively established, it was incumbent on claimant to obtain jury findings which would furnish a definite basis for computation of the amount of recovery, in this instance, the date when claimant became totally and permanently incapacitated, or the number of weeks he will be so incapacitated. Claimant has not obtained such a finding. We conclude the trial court was in error in its finding that the date claimant became totally and permanently incapacitated, if he did, was established by the undisputed evidence. The court was not authorized, as it recognized, to make a fact finding on an independent issue. We think it cannot be said, as contended, that such finding by the court as to the date of commencement of such incapacity was a "supplemental" finding which the court was authorized to make. From these conclusions it results that there was no proper basis for the judgment and it must be reversed. See Art. 8306, §§ 6, 10, 11 and 12; Art. 8307, sec. 5; Art. 8309, sec. 1, Vernon's Tex.Civ.St. 1936, art. 8306, §§ 6, 10, 11, 12; art. 8307, § 5; Vernon's Tex.Civ.St. Supp. 1938, art. 8309, § 1; Dallas Hotel Co. v. Davison, Tex.Com.App., 23 S.W.2d 708, 709; Bulin v. Smith, Tex.Com.App., 1 S.W.2d 591; Texas Employers' Ins. Ass'n v. Wright, Tex.Com.App., 4 S.W.2d 31; Norwich Union Ins. Co. v. Chancellor, Tex.Com.App., 5 S.W.2d 494; Ormsby v. Ratcliffe, 117 Tex. 242,1 S.W.2d 1084; Traders General Ins. Co. v. Chancellor, Tex. Civ. App. 105 S.W.2d 720; Texas Employers' Ins. Ass'n v. Hilderbrandt, Tex. Civ. App. 62 S.W.2d 209.
The insurer by its fifth, sixth and seventh propositions contends that the court erred in refusing to submit its requested issues inquiring (1) whether claimant's disability was contributed to by a previous injury, and (2) what percent of claimant's disability was caused by the prior injury. The only issues submitted by the court in any manner related to the requested issues were as follows:
"Do you find from a preponderance of the evidence that the incapacity of A. C. Watson at this time, if any, to labor, is not due solely to cause or causes other than such injuries, if any, sustained by him on May 13, 1937? Answer `It is due solely to other causes' or `It is not due solely to other causes.' Answer: `It is not due solely to other causes.'
"Do you find from a preponderance of the evidence that such incapacity, if any, sustained by A. C. Watson was due solely to his pricking his finger with a knife? Answer `Yes' or `No.' Answer: `No.' "
In support of said contention, the insurer cites Texas Indemnity Ins. Co. v. Perdue, Tex. Civ. App. 64 S.W.2d 386, writ refused; Petroleum Casualty Co. v. Bristow, Tex. Civ. App. 21 S.W.2d 9; Commercial Standard Ins. Co. v. McGee, Tex. Civ. App. 40 S.W.2d 1105, and Art. 8306, § 12c, Vernon's Tex.Civ.St. 1936. Said statute provides: "If an employe who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury."
Different rules are applicable where a claimant's incapacity is contributed to by a preexisting disease and by a prior injury. Where an employee becomes incapacitated by reason of an injury and such incapacity is contributed to by a preexisting disease, the fact that such preexisting disease contributed to the claimant's incapacity does not constitute a defense to the employee's claim for compensation, or reduce the amount of compensation, unless the preexisting disease is the sole cause of the employee's incapacity. If the preexisting disease is the sole cause of an employee's incapacity, then incapacity does not result from an injury and the employee is not entitled to any compensation. Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; Guzman v. Maryland Cas. Co., 130 Tex. 62, 107 S.W.2d 356; Traders Gen. Ins. Co. v. Wright, Tex. Civ. App. 95 S.W.2d 753, 757 (affirmed Tex.Com.App., 123 S.W.2d 314); Texas Employers' Ins. Ass'n v. Horn, Tex. Civ. App. 75 S.W.2d 301, 304; Texas *Page 1107 Employers' Ins. Ass'n v. Parr, Tex.Com.App., 30 S.W.2d 305, 308; Travelers' Ins. Co. v. Peters, Tex.Com.App., 14 S.W.2d 1007; Texas Employers' Ins. Ass'n v. Burnett, 129 Tex. 407, 105 S.W.2d 200. But, by virtue of the provisions of Art. 8306, § 12c, Vernon's Tex.Civ.St. 1936, a different rule applies where an employee suffers a "subsequent" injury resulting in incapacity, to which incapacity said subsequent injury and a prior injury, or their effects, both contribute. In such case, the compensation insurance carrier is liable "only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury."
Upon another trial if there is evidence that claimant suffered a prior injury and that the result of such injury contributed to claimant's present incapacity, the court should submit to the jury whether claimant's prior injury has contributed to claimant's present incapacity, and, if so, what percentage of plaintiff's present incapacity, if any, has resulted solely from the subsequent injury. Texas Indemnity Ins. Co. v. Perdue, Tex. Civ. App. 64 S.W.2d 386, 388, writ refused; Art. 8306, § 12c.
There was evidence that claimant had suffered a prior injury. There was evidence that the arthritic condition in his shoulder could not have developed so soon after the subsequent injury as it was found, from which the jury might have concluded that such condition was produced by claimant's prior injury, and that the prior injury in some degree contributed to claimant's present incapacity. See Williamson v. Texas Ind. Ins. Co., 127 Tex. 71, 76, 90 S.W.2d 1088; Hartford Acc. Ind. Co. v. Leigh, Tex. Civ. App. 57 S.W.2d 605, 607; Texas Employers' Ins. Ass'n v. Stephens, Tex. Civ. App. 22 S.W.2d 144, 146; Petroleum Casualty Co. v. Bristow, Tex. Civ. App. 35 S.W.2d 246, writ dismissed; Id., Tex. Civ. App. 21 S.W.2d 9, writ dismissed; Texas Employers' Ins. Ass'n v. Van Pelt, Tex. Civ. App. 68 S.W.2d 514, 516; United States Fidelity Guaranty Co. v. Lindsey, Tex. Civ. App. 66 S.W.2d 419, 421, writ dismissed; Gilmore v. Lumbermen's Reciprocal Ass'n, Tex.Com.App., 292 S.W. 204. Also see, Texas Employers' Ins. Ass'n v. Clark, Tex. Civ. App. 23 S.W.2d 405, 409, writ dismissed; Traders General Ins. Co. v. Wyrick, Tex. Civ. App. 118 S.W.2d 923, no application for writ of error; Texas Indemnity Ins. Co. v. McNew, Tex. Civ. App. 90 S.W.2d 1115, writ dismissed; Casualty Reciprocal Exchange v. Dawson, Tex. Civ. App.81 S.W.2d 284, writ granted and dismissed.
That which we have said with reference to the insurer's fifth, sixth and seventh propositions is applicable to and sufficiently disposes of the contentions presented by the insurer's eighth to fourteenth propositions, inclusive.
Special issue number 2 reads as follows: "Do you find from a preponderance of the evidence that A. C. Watson sustained a personal injury on or about the 13th day of May, 1937 in the manner alleged by him? Answer `Yes' or `No.' Answer: `Yes.'" It was objected to, among other things, "because said issue refers to the allegations in plaintiff's petition, some of which allegations have not been proved * * *." We have recently considered the question of reference to the pleadings in the submission of an issue in National Indemnity Underwriters of America v. Bill Blevins, 129 S.W.2d 734 (decided May 5, 1939). Realizing the difficulties faced by a trial judge in so submitting special issues, in view of another trial, we call attention to the language of Chief Justice Conner in Hines v. Hodges, Tex. Civ. App.238 S.W. 349, 351, writ refused, as follows: "It is insisted that there was error in the fifth paragraph of the court's charge, in that it referred the jury to the petition for the allegations of negligence. The contention is that the charge should have embodied the particular issues of negligence to be submitted, and not left the jury to roam at will amongst the allegations of the pleadings. It has been several times determined that such practice is objectionable. To so do may result in the submission to the jury of an issue in support of which there is no evidence or insufficient evidence. So that, undoubtedly, the better practice is for the charge of the court to distinctly submit the particular issues of negligence alleged, and which, in the judgment of the court, the evidence is sufficient to so authorize." Also see Estep v. Bratton, Tex. Civ. App. 298 S.W. 145, writ refused; Egan v. Egan, Tex. Civ. App. 235 S.W. 659, writ refused; Standard Ace. Ind. Ins. Co. v. Cherry, Tex. Civ. App. 36 S.W.2d 807; Texas Indemnity Ins. Co. v. Pemberton, Tex. Civ. App. 9 S.W.2d 65.
We have considered all of appellant's propositions; other than as heretofore stated, we think reversible error is not shown. *Page 1108
The judgment is reversed and the cause remanded.