(dissenting).
The proper judgment to be entered in this case — whether to cumulate weekly payments for temporary total loss of use found by the jury to exist with respect to the left hand, the right hand and the left leg of respondent, or to allow weekly payments for only one of such temporary total disabilities — requires, primarily, interpretation of one paragraph of sec. 12 of Article 8306, Vernon’s Texas Civil Statutes.
At the outset I should state that I do not agree with certain interpretations heretofore given the paragraph. For example, I am convinced that its interpretation by this Court in Texas Employers Ins. Ass’n v. Patterson, 144 Tex. 573, 192 S.W.2d 255, followed in Texas Employers Ins. Ass’n v. Hollingshead, Tex.Civ.App., 282 S.W.2d 305, writ refused, is wrong, and should now be disavowed.
Sec. 12 of Article 8306 deals only with compensation benefits to be paid for injuries to specific members of the body. To put matters to be discussed in proper perspective, the pertinent paragraph of sec. 12 is quoted:
“Where the employee 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 (1) 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.”
To find the meaning of the paragraph, or whether it may reasonably be given meaning, we need to know something of the legislative and judicial history of the Work*314men’s Compensation Act, and particularly the history of Section 12.
The first Workmen’s Compensation Act was passed in 1913. Acts 33d Leg., Regular Session, ch. 179, p. 429. That Act also contained a Section 12 providing benefits for specific injuries. For injuries to the hands, feet, fingers, toes, etc., the compensation provided was “for the loss by severance.” When the Act was rewritten in 1917, Acts 35th Leg., Regular Session, ch. 103, p. 269, Section 12 was expanded to provide compensation, as to such injuries, for loss or permanent loss of use of members in the same language that appears in the Act today.. The enumerated benefits were “for the loss” of the specific members, which the Act declared to be “cases of permanent, partial incapacity,” and it was provided that the “permanent loss of the use of the member” should be equivalent to and draw the same compensation as loss of a member. The Act of 1917 also contained in Section 12 the paragraph under consideration in the exact language of the present Act. In the many amendments to Section 12 throughout the years, this paragraph has never been changed.
Some ten years after passage of the Act of 1917 this Court, “to prevent injustice,” began to “legislate” into Section 12 provisions which on its face and according to its plain provisions the Section obviously did not have or comprehend. But whether rightly or wrongly, this Court interpreted the Section to provide for and limit compensation which should be paid for injuries to specific members resulting in temporary loss of use, permanent partial loss of use, and temporary partial loss of use. See Lumbermen’s Reciprocal Ass’n v. Pollard, Tex.Com.App., (1928), 10 S.W.2d 982; Petroleum Casualty Co. v. Seale, Tex.Com.App., (1929), 13 S.W.2d 364; Fidelity Union Casualty Co. v. Munday, Tex.Com.App., (1932), 44 S.W.2d 926; Great American Indemnity Co. v. Stultz, Tex.Civ.App., (1933), 56 S.W.2d 200, writ refused. It was only after having thus amended Section 12 that the Court was brought face to face in Patterson with the paragraph of that Section quoted above.
In Patterson the Court held that a proper construction of the quoted paragraph did not authorize cumulated benefits for total loss of the use of each of three fingers for twelve weeks and a fifty per cent partial loss of the use of each of the fingers for twenty-six weeks. The Court held that inasmuch as the loss of use (both total and partial) of each of the three fingers was temporary, payment of benefits was governed by the first clause of the paragraph and not by the last clause, the last clause of the paragraph, in the language of the opinion, being applicable “to permanent loss and permanent loss of use, and not to temporary loss of use.” Three reasons were assigned in the opinion for the conclusion reached: (1). Because “The payment, contemplated by the statute, for temporary loss of use of a member of the body is compensation for incapacity and is measured by the duration of the incapacity * * * ” and “The weekly payments, if cumulated, would continue well beyond the period of the concurrent incapacities.” (2). Because the last clause of the paragraph speaks only of “ ‘loss or the loss of the use’ with no reference to temporary loss of use.” (3). Because the last clause “speaks of the loss or the loss of the use of more than one member ‘for which member compensation is provided in this schedule’ ”; and that “The schedule sets out definite compensation for the loss of different members of the body * * but “There is no schedule of payments for temporary losses of use.”
Avowing the utmost respect for the Justices of this Court who rendered the Patterson decision and for the able Justice who authored the opinion, I nevertheless suggest that none of the three reasons is sound. I shall discuss the three reasons in the order in which I have listed them.
(1). The first reason appears to be expressly predicated on the concept that compensation payments for temporary loss of use of one of the specifically named mem*315bers of the body is compensation for actual incapacity, and that the payments should end when the incapacity ends. That concept of the purpose of the payments provided for specific injuries has been rejected many times over, and correctly so. It was expressly rej ected with respect to a temporary total loss of use followed by permanent partial loss of use of a hand in Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, and as to a temporary total loss of use followed by permanent partial loss of use of an eye in Great American Indemnity Co. v. Stultz, Tex.Civ.App., 56 S.W.2d 200, writ refused. In addition, there are many Court of Civil Appeals’ decisions rejecting it. In cases involving specific injuries, existence, percentage and duration of incapacity is not even a proper subject of inquiry. As a matter of fact, the record discloses that in Patterson no issues were submitted and no findings were made with respect to incapacity.
Once a loss or loss of use, total or partial, permanent or temporary, is established, the right to benefits rests in presumed incapacity which the Legislature has predetermined but which may or may not actually exist. By providing benefits for a given number of weeks for loss or loss of use of a member of the body, the Legislature severely limited the benefits of the workman, who, because of the loss, suffers permanent total incapacity to labor, and compensated for the limitation by relieving the workman of the burden of proving any incapacity whatever. By interpreting Section 12 to include compensation for specific injuries producing temporary total, permanent partial and temporary partial losses of use, the Court necessarily also adopted the concept of presumed incapacity as related thereto.
If it may be said that in Patterson the Court was speaking of presumed incapacity, the first reason for holding that benefits for temporary loss of use cannot be cumulated under the statute but benefits for permanent loss or loss of use can be, is totally incongruous. This for the reason that to permit cumulation of benefits for permanent loss or loss of use would also result in payment of benefits long after the period of presumed incapacity had ended.
(2). It is true that the last clause of the paragraph speaks only of loss or loss of use with no reference to temporary loss of use, but that does not justify an interpretation that the last clause applies only to permanent losses of use and the first clause to temporary losses of use. The paragraph should be interpreted in light of its history. It should be interpreted now as it would have been interpreted when it was written in 1917.
The quoted paragraph of Section 12 was written and enacted long before Pollard (1928), Seale (1929), Munday (1932) and Stultz (1933) firmly established that Section 12 impliedly covered temporary total, permanent partial and temporary partial losses of use of specific members. Viewing the paragraph in the setting in which it was enacted in 1917, there is no sound basis for saying that the first clause was intended by the Legislature to apply .to temporary losses of use and the second clause to permanent losses of use.
All of the described losses were declared to be “cases of permanent, partial incapacity,” and “permanent loss of the use” of a member was declared to be equivalent to the loss of the member. The Legislature placed the quoted paragraph immediately following the last schedule of losses. Its first clause stated, and still states: “Where the employee sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury which produces the longest period of incapacity; * * *.” It thus seems quite clear that when the Legislature wrote that clause into the paragraph and spoke of “concurrent injuries,” it was speaking of injuries producing “loss” and “permanent loss of use” of members; and when it spoke of the employee receiving compensation only for the injury which produces “the longest period of incapacity,” it was speaking of the greatest number of weeks allocated in *316Section 12 as a period of prestimed “permanent partial incapacity” for any member so injured. The Legislature could not then have known that the courts would later imply temporary and partial losses of use into the schedule.
Moreover, the first clause makes sense if it is held to apply to concurrent total losses of use, whether temporary or permanent; it makes no sense if it is held applicable to other concurrent losses of use. The clause says that where the workman sustains concurrent injuries resulting in concurrent incapacities, “he shall receive compensation only for the injury which produces the longest period of incapacity.” If the clause is applied to concurrent total losses of use, whether temporary or permanent, recovery of compensation for the injury producing “the longest period of incapacity,” actual or presumed, will always provide the greatest amount of benefits. If it is applied to other concurrent losses of use, recovery of compensation for the injury producing “the longest period of incapacity” will often provide the least amount of benefits.
But Patterson states that since the second clause speaks only of “ ‘loss or the loss of the use,’ with no reference to temporary loss of use,” that clause will be held applicable only to losses or permanent losses of use. This conclusion presents the strange paradox of reading temporary losses of use into the schedules which by express language are set up for losses and permanent losses of use, but refusing to read it into the phrase, “loss or the loss of the use,” where it appears in the second clause of the quoted paragraph without the qualifying adjective, “permanent.” It seems to me that there is more reason for reading temporary losses of use into the last clause of the quoted paragraph than there is for reading them into the schedules of benefits; and I can find nothing in the Act to indicate that “loss or loss of use” should include temporary loss of use in the benefit schedules, but should not include it in the second clause of the quoted paragraph.
(3). The third reason given for the conclusion reached in Patterson involves, in my judgment, a misconstruction of the last clause of the paragraph. The clause reads: “but this Section- shall not affect liability for the concurrent loss or the loss of the use thereof of more than one (1} member, for which member compensationis provided in this schedule * * Patterson reasons that since the schedule-provides compensation only for permanent losses of use of members, the second clause is inapplicable to temporary losses of use of members. I suggest that this reasoning is erroneous and derives from misplaced emphasis; that the emphasis of the language should be on the members for which compensation is provided in the schedule rather than on the degree or extent of the-loss of use for which compensation is provided in the schedule. The members for which compensation is provided in the schedule are fingers, hands, arms, toes, legs,, eyes, etc. To me, the quoted language means that the section “shall not affect liability for the concurrent loss or the loss of the use thereof of more than one” of the members listed in the schedule, but compensation for concurrent injuries tosuch members “shall be cumulative as to time and not concurrent.”
My interpretation of the quoted language is made the more plausible by the fact that certain members of the body — the nose, the ears, etc. — are not listed in the schedule ; and I share the view expressed by Justice Folley in Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 402, that compensation for loss of members omitted from the schedule is provided in the last paragraph of Section 12 covering “all other cases of partial incapacity, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employé.”
But even if I be wrong and Patterson be right as to the proper placing of emphasis in the quoted language, here again we encounter the strange paradox of this Court refusing to read temporary losses of use *317into the last clause of the quoted paragraph after having read them into the benefit schedules.
CONCLUSION
I am firmly convinced that the Patterson interpretation of the quoted paragraph is erroneous. The question remains as to the proper interpretation thereof. What did the Legislature intend by the enactment of this paragraph as a part of Section 12 which deals exclusively with specific injuries ?
The legislative history of the 1917 Act throws no light on the meaning of the paragraph; it was in the bill in its present language when the bill was introduced in the Legislature, and no amendments to the paragraph were offered. The Compensation Acts of Alabama, Minnesota and Tennessee contain similar paragraphs, but the paragraph in those Acts is set in such a dissimilar context of benefits that decisions of courts of those states are not helpful in arriving at the meaning of the paragraph in the Texas Act.
The two clauses of the paragraph are utterly incompatible and repugnant. When the paragraph was included in the Act of 1917, Section 12 dealt only with losses of members (“severance”, according to the Act of 1913) and “permanent loss of the use of the member” which was declared to be “equivalent to * * * the loss of that member.” Both loss of a member and permanent loss of the use of a member were declared to be “cases of permanent, partial incapacity.” When in the first clause of the quoted paragraph the Legislature declared that where an employee sustained concurrent injuries resulting in concurrent incapacities, necessarily of the kind defined in the preceding schedule, he should “receive compensation only for the injury which produces the longest period of incapacity,” it prohibited, by necessary implication, cumulation of benefits. On the other hand, the Legislature expressly provided in the second clause that liability for compensation for concurrent injuries of the type defined in the preceding schedule should continue bo exist, and that benefits therefor should be cumulated as to time. The two clauses cannot stand together.
I would hold that the two clauses are so repugnant as to render the paragraph meaningless and void. See Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261. Having declared the paragraph void, I would then hold that with no internal prohibition in Section 12 against cumulat-ing payments for specific injuries, and none elsewhere, cumulation of payments is authorized, whether the payments be for permanent, temporary, total or partial losses of use; and I would cumulate the payments in a descending order of value to-the injured employee, allowing recovery of the greatest amount possible under the specific injury schedule in light of the findings of the jury or the trial judge. See Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73. Finally, I would hold that except as otherwise provided in Sections 12 and 11a, cumulation of payments could not extend beyond 300 weeks, the maximum number of weeks provided in Section 11 and the last paragraph of Section 12 for payment of compensation for partial incapacity.
Applying my views to the jury findings in this case, the trial court’s judgment should have been for $35.00 per week for 177 weeks for temporary total loss of use of the two hands and the leg, $17.50 per week for 91 weeks for permanent partial loss of use of the left hand (thus reaching the schedule limit of 150 weeks for loss of use of the left hand), and $14.00 per week for 32 weeks for permanent partial loss of use of the right hand, reaching at this point the outside limit of 300 weeks for which compensation for partial incapacity is payable, a total recovery of $8,325.50. But inasmuch as petitioner did not object to or appeal from that portion of the trial court’s judgment cumulating, as to time, compensation for permanent *318partial loss of use of the three members, I would affirm the judgment of the Court of Civil Appeals.
Section 12 of Article 8306 has been reenacted since the Patterson decision without change in the quoted paragraph. I am not unaware or unmindful of the rule that when a statute has been interpreted by a court of last resort and it is re-enacted without change of language, the presumption is that the judicial interpretation is adopted by the Legislature and becomes a part of the statute. Texas Fidelity & Bonding Co. v. City of Austin, 112 Tex. 229, 246 S.W. 1026, 1029. The rule is not inflexible. Its flexibility in the instant situation is recognized in 50 Am.Jur. 462, Statutes, § 443, in these words: “The rule is not, however, conclusive under all circumstances. The fact that a statute is re-enacted without alteration after its judicial interpretation, does not necessarily establish such interpretation as to preclude the court from overruling its former decision.” Moreover, the repugnant character of the two clauses of the quoted paragraph was not called to the attention of the Court, nor was it considered by the Court in Patterson. While the Court could have ruled on the matter of its own volition, see Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, the fact is that it did not do so and the Court now has the question before it for the first time.
The situation differs not at all from one in which the Court interprets a statute in one case only to have its constitutionality called in question in a later case. In that situation the Court would not hesitate to declare the statute void for unconstitutionality merely because on a former occasion it had interpreted the statute. If a statute is void for repugnancy, it is just as void as if it were void for unconstitutionality. Patterson and Hollings-head are so patently wrong that I suggest that we overrule them and declare the quoted paragraph void for repugnancy; and that we then make a fresh start in the area of cumulation of compensation for specific injuries in keeping with other provisions of the statute, leaving to the Legislature, where the responsibility properly rests, the right to correct any supposed inequities.
Instead, the Court chooses a course of compounding the error of Patterson by now holding that the second clause of the quoted paragraph also applies to specific injuries producing permanent partial loss of use of a member and the first clause does not. Not only is that holding as devoid of basis in logical analysis of the statute as is Patterson, it also flies in the face of an important phase of Patterson’s rationale. It will be recalled that the second and third reasons given in Patterson for holding that the second clause could not apply to temporary losses of use were (2) because the last clause of the paragraph speaks only of “ ‘loss or the loss of the use’ with no reference to temporary loss of use”; and (3) because the last clause “speaks of the loss or the loss of the use of more than one member ‘for which member compensation is provided in this schedule’ ;” and that “The schedule sets out definite compensation for the loss of different members of the body * * but “There is no schedule of payments for temporary losses of use.” Both reasons exclude application of the last clause of the quoted paragraph to permanent partial losses of use; there is no reference in the clause to partial loss of use, and there is no schedule of payments for permanent partial losses of rtse. It thus appears that while the Court insists, on the basis of stare decisis, that the specific holding in Patterson be followed, it also disavows most of the reasons given in Patterson for its holding.
The new holding that benefits for permanent partial loss of use may be cumu-lated with benefits for permanent total loss of use but benefits for temporary total loss of use may not be, leads to strange and interesting results. By way of illustration, consider that an employee with an *319average weekly wage of $100.00 sustained concurrent injuries to a hand and a foot which resulted in: (a) permanent total loss of the use of the hand and the foot; (b) permanent 90% partial loss of the use of the hand and the foot; (c) temporary total loss of use of the hand for 124 weeks and permanent 10% partial loss of use of the foot.
Under Patterson as extended by the holding in this case, we would get these results: In (a), benefits would be cumulated and the employee would be paid $35.00 per week for 150 weeks for loss of use of the hand and $35.00 per week for 125 weeks for loss of use of the foot, a total of $9,625.00. In (b), the benefits would be cumulated and the employee would be paid $31.50 per week for the combined period of 275 weeks, a total of $8,662.50. In (c), benefits for 124 weeks temporary total loss of use of the hand could not be cumu-lated with benefits for permanent partial loss of use of the foot; and since in such circumstances the first clause of the quoted paragraph expressly directs that the employee be compensated only for the injury “producing the longest period of incapacity,” the employee could be paid only the compensation provided for 10% partial loss of use of the foot for 125 weeks, a total of $437.50, and would lose the benefits provided for loss of use of the hand in the sum of $4,340.00. That will be the result in such a case unless this Court is prepared to “legislate” some more and declare that when the Legislature expressly provided that the employee should be paid only for the “injury which produces the longest period of incapacity” it really meant that he should be paid only for the “injury which under the schedule of payments would provide the greatest recovery.”
There should be an end of legislating in this field by the Court. It is perhaps too late to recant the decisions which read temporary total, permanent partial and temporary partial losses of use into the specific injury schedule in Sec. 12, Art. 8306; but it is not too late, or even a violent disregard of the rule of stare decisis, to recant the interpretation in Patterson of the quoted paragraph and declare the paragraph void for repugnancy. There is no insurmountable barrier to overruling Patterson. It did not lay down a rule of property on which others may have relied. It simply denied to one injured workman compensation to which he was justly entitled under the Workmen’s Compensation Act properly interpreted. That injustice cannot be remedied but further injustice should not be perpetrated upon injured workmen because of some hallowed concept of stare decisis in the interpretation of a statute. As said by the Supreme Court of the United States in United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 358, 82 L.Ed. 413, 420, “One decision construing an act does not approach, the dignity of a well settled interpretation.” Confronted with a similar problem in Pennsylvania-Reading Seashore Lines v. Board of Public Utility Com’rs, 5 N.J. 114, 74 A.2d 265, the Supreme Court of New Jersey, speaking through Chief Justice Vanderbilt, said:
“It is urged on us that the construction put on the statute by the O’Connor case [O’Connor v. Board of Public Utility Com’rs, 129 N.J.L. 263, 29 A.2d 390] became a part of the statute which we may not change, that power residing solely in the Legislature. However, this rule of legislative acquiescence in the well settled interpretation of a statute is but one of several principles that may guide a court in arriving at the true meaning of a legislative act. It is no more than an aid in statutory construction and it is merely one factor in the total effort to give meaning to the language of the statute. * * * The doctrine here contended for is not uniformly controlling; it must not be permitted to fetter the courts in their search for light. The principle of stare decisis which lies behind the doctrine is enti-*320tied to respect, but it must not blind us to realities; it is not an idol to be wor-shipped in following either a judicial precedent or an antecedent statutory construction.”
Because of the failure to declare the quoted paragraph of Section 12 void for repugnancy and then to affirm the judgment of the Court of Civil Appeals, I respectfully dissent.
HAMILTON and STEAKLEY, JJ., join in this dissent.