dissenting.
The Court in this case has held that the trial court erred *543in refusing to permit the compensation carrier to offer in evidence the claimant’s petition filed on account of the subsequent September injury, but has also held that the error was harmless in the light of the fact that the claimant was questioned as to the nature and extent of the injury he received in September. The jury found that five per cent of his total and permanent disability was a result of the subsequent injury.
The injury in this case was alleged to have occurred on April 30. Both petitions were filed by the same law firm. The allegations are so similar that one might have served as a model for the other. With respect to the April injury which formed the basis of this case, the allegations were as follows:
“* * * plaintiff was suddenly, accidentally and unexpectedly injured in that while he was pulling a tractor engine head and while in an awkward and strained position felt a tearing sensation in back and low back and as a result of said accident, plaintiff sustained and suffered the following injuries: Severe damage to plaintiff’s back and low back with severe pain in both legs, with areas of anesthesia on the left leg on the anteri-lateral aspect from the hip to the knee, and posterolateral from the knee to the ankle, narrowing of the interspace between the 4th and 5th lumbar vertebrae, displacement of the 5th lumbar segment to the right on the 4th; a cupping of the body of the 5th lumbar segment at its inferior plate, osteophytie spurring on the body of the 5th lumbar vertebrae, extreme nervous condition, together with rupture and contusion of all the nerves, ligaments, tendons, blood vessels, soft tissues and blood vessels and muscles in the plaintiff’s back and low back all of which have rendered the plaintiff totally and permanently disabled under the provisions of the Workmen’s Compensation Act of Texas.”
The September petition alleged that:
“* * * plaintiff was suddenly, accidentally and unexpectedly injured in that while pulling a motor out of a combine and while in an awkward and strained position suddenly felt a burning and tearing sensation in his back and low back and as a result of said accident, plaintiff sustained and suffered the following injuries: severe damage to plaintiff’s back and low back, with such severity that a spinal fusion operation was performed on plaintiff’s back, tenderness over the scar where the fusion operation was performed, inability to stoop over or bend, constant and severe pain in his back and left *544leg, areas of anesthesia on the left leg, sclerosis of the lower lumbar spine, a narrowing of the interspace between the 4th and 5th lumbar and the 5th lumbar and the 1st segment, together with a rupture and contusion of all the nerves, tendons, muscles, ligaments, soft tissue and blood vessels in plaintiff’s back and low back, and all of which have rendered Mm totally and permanently disabled from performing manual labor under the provisions of the Workmen’s Compensation Act of the State of Texas.”
Both petitions in the alternative alleged that only if the plaintiff was mistaken then the accident reinjured and aggravated a previous physical condition and as a result he was totally and permanently disabled. Incidentally the September case was settled before this one came on for trial.
The September petition further alleged: “That by reason of the heretofore mentioned accident and resulting injuries which were sustained by him in the scope of his employment with J. B. Knight Company, he has been rendered and is totally and permanently disabled, with reference to performing labor, and that said disability was caused by reason of the said accident and resulting injuries heretofore described.”
Although Murphree was cross-examined as to the September injury, nowhere was there shown nor permitted to be shown to the jury all of the bodily damage and impairment detailed in the September petition, the similarity of those claims to the ones made in the April petition and the repeated assertion of total and permanent disability as a result of the September accident and the consequential injuries. In the light of all of these claims the jury might well believe and probably would have found that at least the September injury contributed more than five per cent to the total and permanent disability which Murphree may have had at the time of the trial, and thus determine he was not totally and permanently disabled as a result of the April injury. There was no reason for the jury to believe that the September allegations were fictitious or not made in good faith. They constituted in effect a denial by Murphree that he had been totally and permanently disabled by reason of the April injury. The jury might also with reason have thought it rather incredible that the claimant would have asserted that he had been totally and permanently disabled twice within a period of four months. I think it reasonable to presume that the jury would have attached considerable weight to the allegations made *545in the September petition. The ruling of the trial court should not be brushed aside as harmless error.
The jury found that Murphree as a result of the injuries received on April 30, 1959, sustained total incapacity. That the total incapacity began on April 30 and was permanent. The jury also found that the injuries received by Murphree on September 1, 1959, contributed to plaintiff’s incapacity to the extent of five per cent. Obviously this constitutes a conflict. Both cannot be true. If the September injury contributed in any degree to the total and permanent incapacity then he was not permanently incapacitated on April 30. However, neither party objected to the submission of the issue relating to the September injury and I do not find in St. Paul’s motion for a new trial any support for a complaint on this score.
I would reverse and remand the case for a new trial.
ASSOCIATE JUSTICE GRIFFIN joins in this dissent.
Opinion delivered May 23, 1962.