(dissenting).
In this case Sowell pleaded that he had no existing bodily incapacity, but that if he *417were mistaken in that respect then the same was aggravated, accelerated and lighted up by such injury. On the other hand the Insurance Company pleaded that if the plaintiff had any incapacity the same was not due to the injury hut due solely to the bodily condition, infirmities and injuries existing independently of the alleged injury and in the alternative if there was any incapacity it was not due to the alleged injury but to previous compensable injuries. In my view the case was submitted to the jury in accordance with the pleadings and the proof.
Sowell objected to Issue No. 16 on the ground that it contained the word “solely” for the reason that “[it] thereby precluded the jury in answering such issue from taking into consideration, in determining the percentage of incapacity due to the alleged injury of November 12, the incapacity plaintiff sustains or has sustained by reason of the injury of November 12, 1960, acting in conjunction with prior or subsequent diseases or congenital conditions or prior or subsequent injuries sustained under circumstances which do not authorize the application of Section 12(c) of Article 8306 thereto.”
In my opinion the elimination of the word “solely” from the issue would not effect any change in the sense and meaning of the issue. I can see no distinction between inquiring what percentage of the incapacity is due solely to the alleged injury and what percentage of the incapacity is due to the alleged injury, particularly when taken in connection with the definition of injury which is quoted in the Court’s opinion and to which no objection was leveled. As pointed out in the Court’s opinion the word was used apparently to distinguish the injury in question from previous compensa-ble injuries that Sowell had sustained. But that is the point on which this case is reversed and remanded, because as the Court says, the word “solely” “gave an overreaching effect to the issue.”
Sowell requested in his objections to the charge the submission of a special issue inquiring as to what percentage of his present incapacity resulted from the prior com-pensable injuries of 1956. The request was not made in accordance with Rule 273, Rules of Civil Procedure. Of course the issue is not an ultimate one but is eviden-tiary and ordinarily a defensive one. Traders & General Ins. Co. v. Watson, 131 S.W.2d 1103, Tex.Civ.App. The Court said it would be better to submit that issue to the jury. What I understand the Court to be saying is if you subtract the percentage of the disability caused by the previous injuries from his total incapacity it would leave the incapacity sustained by the plaintiff as a result of the injury of November 12th. I do not believe that method is sound. The ultimate question in this case is what was the incapacity caused by the injury in question. In my opinion Sowell failed to raise any valid objections to the Court’s charge as given.
So far as the points discussed in the opinion of the Court are eoncerned I would affirm the judgments of the courts below.