(concurring).
Appellant earnestly insists that its objections to the Court’s instruction given in connection with Special Issue No. 7 sufficiently pointed out the question concerning the correctness ,of the court’s definition of the word “permanent.” I am inclined to agree with this contention. The objections did point out that in using the language “limited to a particular time” the court was .unduly stressing the matter of a particular time, and in view of the evidence virtually telling the jury to returij the answer “permanent.” It seems to me that this did point out to the court that the instruction in effect erroneously .told the jury that the disability was permanent if it was not limited to a particular time. I adhere to the view expressed in our concurring opinion that as an abstract proposition of law such instruction was correct. Of course a disability is not necessarily permanent because its duration or the time to which it is limited can .not be definitely determined, but if the duration of the- disability is unlimited as to time it seems to me it must necessarily be permanent. Therefore, if the objection did sufficiently point out that the definition of “permanent” inherent in the instruction was erroneous, such objection was without merit.
The danger in the instruction is that on the record in this case it may be suscep-. tibie of a construction which would lead the jury to believe that although they found from á preponderance of. the evidence that the disability was limited to a particular time but they' were unable to state that time, they were nevertheless required to return an answer of “permanent.” Of course the instruction does not' so state, and under it, if such were the jury’s belief they should not have answered Special Issue No. 7, in which event appellant would have been entitled to a mistrial, but since the court had refused to accept their answer of “indefinite” to Special Issue No. 7 — which refusal I think was proper — and sent them back under the instruction given, it seems to me they may have been mislgd into thinking they were required to return an answer. However, the objections clearly do not point out this vice, if it is a vice, in the instruction.
I concur in overruling the motion for rehearing.