(dissenting).
By the answers to the first six special issues the jury found that plaintiff was injured in the course of his employment on June 15, 1968, that total incapacity began then, and that the total incapacity is permanent. The jury also found in answer to special issue No. 26 that the injury was not confined to the foot. Under the record the latter finding must be taken as confirming plaintiff’s back injury.
It has been said heretofore that the plaintiff need not go further and obtain a particular finding that the back injury was a producing cause of the incapacity. In McCartney v. Aetna Casualty & Surety Company, 362 S.W.2d 838 (Tex.1962) the judgment for the plaintiff was based upon findings not materially different from the first six issues of the present case. The defendant argued that it was impossible to determine whether the jury regarded the specific injury as the only producing cause of incapacity. This court said:
“In a case such as this, it is sufficient to say that if the insurer desires to limit the claimant’s recovery to the compensation recoverable under the provisions of Section 12 or seeks to otherwise separate the effects of general and specific injuries, the burden rests with the insurer to either request appropriate special instructions to the jury, in connection with the general injury issue, or plead, prove and secure jury findings so limiting the claimant’s recovery.” 362 S.W.2d 841.
The difference which I see between this verdict and the McCartney verdict is in special issues 24, 25 and 27 where, with the burden placed upon plaintiff, the jury failed to find that the incapacity was not caused solely by the foot injury or by the loss of use of the foot, or that the back injury was a producing cause of incapacity. I can find no authority for giving these answers any effect. If the plaintiff makes his case for a general injury recovery by the answers to the first six issues, I fail to see how his recovery can be defeated by the answers to issues 24, 25 and 27 unless it is now held that if issues are given to inquire of the allocation of incapacity as between the specific and general injuries, the burden may be placed upon the plaintiff and he must carry that burden and *587obtain favorable findings or lose the general injury recovery. I would not further complicate the special issue practice by this new twist.
Plaintiff now recovers only 50% of his compensation rate for 125 weeks, even though the jury has found that he is totally and permanently incapacitated.
I would affirm the judgment of the court of civil appeals.