(dissenting).
I respectfully dissent. The cause was tried to a jury. The trial court entered a judgment in favor of the plaintiff, but not to the' extent prayed for in his motion for- judgment.-. On appeal, the Court of *308Civil Appeals, in effect, granted plaintiff’s motion for judgment by reversing the judgment of the trial court and rendering judgment for the plaintiff for more compensation than awarded by the trial court. 366 S.W.2d 263.
Plaintiff’s original petition was filed on June 28, 1961. Plaintiff’s pleadings, as originally filed, alleged a cause of action against the defendant, claiming compensation for general injuries sustained in the course of his employment. On February 14, 1962, the plaintiff filed a trial amendment, amending paragraph III of his original petition by adding a new paragraph, which for the first time alleged:
“That as a result of said injuries as hereinabove set out and the conditions resulting therefrom, including the treatment thereof and the pain incident thereto, the Plaintiff, Oliver London, has been caused, by reason of the accident in question, to suffer the total permanent loss of the use of his left leg, his left and right hand at or above the wrists within the meaning and definitions of the Workmen’s Compensation Law of The State of Texas.”
In answer to the original petition, the defendant pleaded a general denial, and that plaintiff’s earning capacity on and after August 29, 1959, the date of the alleged injury, was equal to or greater than his earning capacity prior to said date, and that the plaintiff, after said date, had the capacity and ability to earn money at a higher average weekly wage after the injury than prior thereto.
The defendant also pleaded defensively that plaintiff’s injury, if any, was temporary in duration, partial in extent, “and resulted from matters and things in no way connected with his employment * * * ; and in the alternative, defendant pleads that such matters were the sole cause of any alleged disability.”
The jury found against the plaintiff so far as his alleged general injuries were concerned. We are concerned with the question as to the number of compensable weeks to be allowed for the specific injuries sustained as found by the jury.
Special issues ten through thirty found that the plaintiff sustained a total loss of the use of his left leg, his right hand and his left hand. The jury found that the duration of the total loss of the use of the left leg was for a period of sixty weeks. However, the parties stipulated that the total loss of use of each of the members involved was for a period of 59 weeks, beginning August 29, 1959, and ending October 15, 1960. This accounts for the entry of judgment for a period of 59 weeks for the total loss of use rather than for the period of 60 weeks, as found in answer to Special Issue No. 11.
At this point it perhaps will be well to delineate the respective positions of the parties. The question presented is which of the two motions for judgment should have been granted by the trial court. My position is that the plaintiff’s motion should have been granted and judgment entered for plaintiff in accordance with his prayer for judgment.
Plaintiff’s prayer in his motion for judgment, moved the Court to enter judgment for him “ * * * for payment of weekly compensation at the rate of $35.00 per week from and after August 29, 1959, to October 15, 1960, a period of 59 weeks, followed by the payment of weekly compensation at the rate of $17.50 per week for 91 weeks, in payment of permanent loss of the use of plaintiff’s left hand, followed by the payment of weekly compensation at the rate of $35.00 per week for a period of 59 weeks, followed by the payment of weekly compensation at the rate of $14.00 per week for 91 weeks, in payment of permanent loss of the use of plaintiff’s right hand, followed by the payment of weekly compensation at the rate of $35.00 per week for 60 weeks, followed by the payment of weekly compensation at the rate of $8.75 per week for 140 weeks, in payment of permanent loss of the use of *309plaintiff’s left leg. * * * ” Emphasis added.
The defendant attached a proposed judgment to its motion for judgment. The proposed judgment does not state the number of weeks for the total loss of use of the three involved members, but unquestionably the proposed judgment only allowed one 59-week period, whereas, the plaintiff contends for a judgment allowing a 59-week period for the total loss of use of the left leg, 59 weeks for the loss of use of the right hand, and 59 weeks for the loss of use of the left hand. The parties are in apparent agreement at this level of the proceedings as to the correctness of the judgment of the Court of Civil Appeals in allowing a recovery by plaintiff in accordance with his motion for judgment so far as the permanent partial loss of use of his left leg, his left hand and his right hand is concerned.
I take the position that in a case, such as we have here, where there is a finding of a temporary total loss of use and a permanent partial loss of use of a member, the number of compensable weeks allowed for the latter must be deducted from the number of com-pensable weeks allowed for the former. This position is in harmony with the Texas Workmen’s Compensation Act and is supported, in principle, by authorities in this and other jurisdictions. The formula I advocate should be applied in the present •case which involves the loss of use of three specific members. The fact that the loss of use of the three members was the result of a single accident is immaterial. Plaintiff is entitled to compensation for the loss of use of each member in accordance with the statute. The provisions of Article 8306, Section 12, Vernon’s Annotated Civil Statutes, which govern this case, have been in effect since 1913. Of course, changes by amendment have been made by subsequent Legislatures, but from its original enactment, it was made unmistakably clear by the Legislature that it was its intention by the •enactment of Section 12 to provide that an injured employee should receive a fixed and definite compensation for certain specific injuries enumerated therein.
The Texas statute, where concurrent specific injuries are involved, places no limitation upon the maximum number of compensable weeks of recovery. The controlling parts of Section 12 of Article 8306 are as follows:
“For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent (60%) of the average weekly wages of such employee, but not less than Nine Dollars ($9) per week nor exceeding Twenty-five Dollars ($25) per week, for the respective periods stated herein, to-wit:
“For the loss of a hand, sixty per cent (60%) of the average weekly wage during one hundred and fifty (150) weeks.
“For the loss of a leg, at or above the knee, sixty per cent (60%) of the average weekly wages during two hundred (200) weeks.
« * *
“In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.
“ * * * but this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.
*310“In all cases of permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member; but the compensation in and by said schedule provided shall he in lieu of all other compensation in such cases.” Emphasis added.
The foregoing provisions of the statute, especially those provisions of Section 12 which provide that the section (12) shall not affect liability for the concurrent loss or the loss of the use thereof of more than one member, and that compensation due for such specific injuries “shall be cumulative as to time and not concurrent,” are rendered meaningless by the Court. London is due compensation for each of the specific members for the entire period of loss of use of such members. See: Texas Employers’Insurance Association v. Moreno, Tex.Com.App., 277 S.W. 84 (192S), cited with approval by this court in Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76. In the Moreno case, the Court said: “Of course, one can recover separately for the various injuries specified in section 12.” Instead of following the law as declared in Moreno, the Court in the present case is allowing a recovery for only one of the three periods that total loss of use exists, as found by the jury. The net result is to deny to London the sum of $4,130.00 due him under the statute. There is not one applicable word in Section 12, Article 8306, supra, that limits a claimant to only one period of total loss of use of a specific member where more than one member is involved. The holding of the Court, therefore, amounts to legislation by this court.
The defendant strongly relies upon the cases of Texas Employers’ Insurance Association v. Patterson, (1946) 144 Tex. 573, 192 S.W.2d 255; and Texas Employers’ Insurance Association v. Hollingshead, (1955) Tex. Civ.App., 282 S.W.2d 305, wr. ref.
The Patterson case presents a different factual situation than the factual background in the present case. In every case, the law is declared in the light of the facts involved and the findings of the trier of the facts. In the Patterson case, the jury found that as to each finger the loss of use was temporary and that the whole period of loss of use of each finger, including both the total and partial loss was the same, thirty-eight weeks. There was no finding that Patterson sustained any permanent loss of use of either finger. Section 12 of Article 8306, supra, is quoted in the Patterson opinion. It reads:
“ ‘Where the employe sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury which produces the longest period of incapacity; but this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent’ ” Emphasis added.
The Insurance Company in the Patterson case contended and this court held that the first part of the above quoted paragraph of Section 12, rather than the second part of the paragraph which has been underscored, should be applied. Since the loss of use of each finger was temporary and for.a period of thirty-eight weeks, the Court properly held that:
“When, as in the instant case, an employee suffers concurrent injuries, here injuries to three of his fingers, resulting in concurrent temporary inca-pacities and he is paid for the injury that has caused the longest period of incapacity, his compensation has been measured by, and payment has been made for, the full period of incapacity caused by the injuries. The weekly payments, if cumulated, would continue *311well beyond the period of the concurrent incapacities.” (Emphasis added.)
The holding in the Hollingshead case is clearly not in point in the instant case as there was no finding with respect to either of Hollingshead’s leg injuries that there was any permanent loss of use, all of such losses of use being temporary in duration, whereas, in the present case loss of use of the three members involved was permanent.
It is argued that the rationale of the Patterson case compels this court to limit a judgment in favor of plaintiff to a recovery of compensation for only one period of total loss of use rather than a recovery for the three periods of 59 weeks each, as found by the jury. In making this contention, it is sought to apply the first part of Section 12, Article 8306, just as was done in the Patterson case. Regardless of the rationale of the Patterson case, this Court cannot give a construction of the statute, as contended for by the defendant in the present case. Assuming there is an apparent conflict between the first part of the above quoted provision of Section 12, Article 8306, and the underscored provision which deals specifically with the concurrent loss or the loss of use thereof of more than one member, the first provision must yield to the latter.
Under this assumption, I concur with Chief Justice CALVERT in overruling the interpretation of the statute given by this court in that case. It has never been the intention of the Legislature that the courts should give such a strict construction of the Workmen’s Compensation Act as to deprive a workman of the greatest recovery to be allowed under the facts of his case. The Court in the present case interprets the Patterson case as controlling. The Court declines to recognize that it has interpreted Section 12 in other cases.
This court in the case of Texas Employers’ Insurance Association v. Brownlee, supra, rendered judgment for the plaintiff, allowing a recovery for the loss of the second finger — 30-weeks compensation and for the loss of the third finger — 21-weeks compensation. In rendering such judgment, we took occasion to interpret Section 12 of Article 8306, supra. We said:
“The provisions of Article 8306, Section 12, * * * which govern this case, have been in effect since 1913. Of course, changes by amendment have been made by subsequent Legislatures, but from its original enactment, it was made unmistakably clear by the Legislature that it was its intention by the enactment of Section 12 to provide that an injured employee should receive a fixed and definite compensation for certain specific injuries enumerated therein. The Section enumerates the several specific injuries and provides that the compensation for each specified injury ' * * * shall be in lieu of all other compensation * * *.’ ” (Emphasis added.)
It is true the Legislature has re-enacted Section 12 since the Patterson decision. However, I contend that this court rendered its interpretation in Brownlee of Section 12 seven years after Patterson and the Legislature, no doubt, as I have thought, considered the Brownlee interpretation to mean that in cases involving concurrent specific injuries, full compensation should be allowed for each specific injury. While it is true that the parties stipulated that plaintiff was entitled to recover for the loss of each tip of the second and third finger, the fact remains that this court interpreted the statute to mean just that notwithstanding the stipulation.
In the case of Texas Employers’ Insurance Association v. Maledon, Tex.Com.App., 27 S.W.2d 151 (1930), the Court interpreted Section 12 in connection with general and specific injuries. In the Maledon case, both general and specific injuries were involved. In such a situation the Court properly dealt with both clauses of Section 12. Because -both general and specific injuries were involved, the Court interpreted both clauses of Section 12. Under the first clause, the Court allowed a recovery of *31219 weeks, thus applying the clause which reads: “Where the employee sustains concurrent injuries resulting in concurrent in-capacities, he shall receive compensation only for the injury which produces the longest period of incapacity.” The Court, however, made it clear that this clause had no application where the claimant had only sustained specific injuries. The Court further interpreted the statute, saying:
“It is true the above provision [1st clause] is modified by the latter part of the same section of the statute, which provides: ‘But this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.’ ”
The Court then went on to illustrate the meaning of the latter part of the clause. I quote:
“We think, however, that the latter part of the section refers only to cases where the employee’s disability results from more than one specific injury, and not to cases where the disability results from a general injury, and a specific injury." (Emphasis added.)
I construe this language to mean that the first clause applies only where the disability results from a general injury and a specific injury; and that the latter clause only applies in cases confined to specific injuries. The Court in Maledon gave this illustration :
“To illustrate, if an employee is totally disabled for 20 weeks by reason of the loss of one hand, and at the same time is also totally disabled for 10 weeks by the loss of one foot, he would be permitted recovery for the total disability for each of the members; this because because each such injury would be specific.” (Emphasis added.)
This illustration makes it clear that full compensation must be allowed for all specific injuries involved in any given case. It is true that only one specific member was involved in Maledon, but it is clear what the decision would have been had two or three specific members been involved.
The Court, after discussing the case of Lumbermen’s Reciprocal Association v. Pollard, Tex.Com.App., 10 S.W.2d 982, 983 (1928), held that:
“Inasmuch as the specific schedule for the loss of the hand provides compensation at the rate of 60 per cent, of the average weekly wages for 150 weeks, and the defendant having sustained 40 per cent, permanent partial incapacity to the hand, he is entitled to 40 per cent, of 60 per cent, for the balance of the compensation period after deducting the 19 weeks already allowed him for total incapacity to the same member or 24 per cent, of his average weekly wages for a period of 131 weeks.”
IN VIEW OF THE ILLUSTRATION GIVEN BY THE COURT, THERE IS NO DOUBT BUT THAT IF IDENTICAL INJURIES TO THREE SPECIFIC MEMBERS HAD BEEN SUSTAINED, THE COURT WOULD HAVE ALLOWED THE SAME RECOVERY FOR EACH. Of course, for the leg, the number of compensable weeks would have been increased to 200. It seems to me that it is perfectly clear that the first clause of Section 12 applies in cases where a general injury is involved either alone or simultaneously with a specific injury, and the latter clause applies in every case where only specific injuries are to be compensated.
The case of Nolan v. Ernest Construction Company (1942), 243 Ala. 460, 10 So.2d 547, involved facts similar to those involved in the present case. Section 279 of the Workmen’s Compensation Act of the State of Alabama which is somewhat similar to the Texas statute, has been construed to mean *313that total loss of use of a member shall be considered equivalent to loss of the member and that loss less than total shall be paid during that part of the time specified in the schedule for total loss or total loss of use of the respective member, which the extent of injury to the member, bears to its total loss. The loss of use of a member under the Alabama statute is tied into a definition of the member set forth in 279(C)!, by declaring that the total loss of the use of a member shall be considered as equivalent to the loss of that member, and that the loss less than total “ ‘shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury to the member bears to its total loss.’ ”
It was agreed in the Alabama case that the claimant sustained “ ‘a fifty percent, permanent and total loss of use, (?) but that the disability was one hundred percent, during forty weeks.’ ” I construe the opinion to hold that when a permanent partial loss of use of a member is concurrent with a temporary total loss of use of it, the number of compensable weeks allowed for the latter must be deducted from the number of com-pensable weeks allowed for the former. Applying that rule to the facts in the present case, the award for the loss of use of each member is determined by using as a basis the schedule in section 12, Article 8306, supra, which provides the number of com-pensable weeks for the loss of the use of a hand and a leg. Therefore, for each hand there would be a total of ISO compensable weeks for permanent loss of use. However, since during 59 of the compensable weeks a total loss of use existed, that number of weeks should be deducted from 150, leaving 91 weeks for the permanent partial loss of use of each hand. Recovery for the loss of the use of the leg is arrived at in like manner, except the basis would be 200 compensable weeks, as provided in the statute. Thus, compensation would be adequately allowed, as contemplated by the statute.
I would affirm the judgment of the Court of Civil Appeals.