(dissenting).
The dissenting opinion heretofore delivered is withdrawn and the following substituted therefor.
I respectfully dissent. None of the evidence places the injury sustained by Raymond Moore in the category of a specific injury. The petition upon which plaintiff went to trial contained no allegations direct, alternatively or otherwise, which could possibly afford the basis for a recovery due to a specific injury to the arm. The Legislature has divided compensable injuries into two main classes: general and specific. The injuries described in Moore’s petition clearly fall in the class of general injuries. If the rule of the majority is followed, every injured person in the future, no matter if the facts confine his cause of action to a general injury, will be compelled to run the risk of losing his right to a recovery for total and permanent disability as a result of such injury solely on the defense that the disability was limited to a specific member.
The insurer in this case did not plead a specific injury as a defense until it filed a Trial Amendment. Neither did it plead that the injury to the arm was the sole cause of incapacity. In its pleading, it was alleged: “ * * * [T]hat any disability or incapacity to the plaintiff resulting from the accidental injury in question was limited to the right arm * * This allegation has no support in the evidence unless the words “arm” and “shoulder” are synonymous. Of course, they are not. They are two different and separate parts of the body. If the Court’s opinion is followed, then a workman who sustains a general injury to his shoulder could be limited to a recovery for a specific injury to the arm.
Moore, the injured workman, under the facts in this case, could not have pleaded or proved a specific injury alone. Of course, a plaintiff may plead and prove that a specific injury extended to other parts of the body and, thus, become a general injury, but this is the first instance where a claimant could be deprived of a recovery for a general injury merely on a possible fact finding that the disability suffered was limited to a specific member of the body.
Aij examination of Section 12, of Article 8306, will reveal that an injury, such as testified to by the insurer’s own doctor, as well as Moore’s doctor, which is the basis of this suit, is not classified as a specific injury. In fact, the insurer does not classify the injury as a specific injury to the arm, except in the sense that it wants the trier of the facts to find that disability, if any, was limited to the use of the right arm. I agree with Moore that to confine an injured' •workman to specific compensation, the injury as well as the incapacity must both be confined to the specific member.
The very first issue in a Workmen’s Compensation case either assumes an injury, if the facts are undisputed, or inquires whether or not the plaintiff sustained an accidental injury in the course of his employment. In this case, the plaintiff pleaded a general injury and the first issue submitted to the jury was: “Do you find * * * that [the] accidental injury sustained by Raymond' Moore on March 23, 1959 * * This-issue assumed injury because the undisputed facts showed a general injury. In reality, the insurer’s position in this case can be narrowed to the contention that Moore received incapacity to a specific member as the end result of a general injury. This is not the law, and never has been. Where a claimant sustained only a general injury. *189such an injury cannot he reduced to a specific injury merely because of a jury finding that the disability suffered was limited to the use of a specific member. In the absence of pleadings and proof of an injury to a specific member, and where all the evidence shows only a general injury, the defense embodied in a requested issue to the effect that the claimant’s incapacity was limited to the loss of use of the specific member can never be available. This is true in the present case simply because all of the pleadings and evidence conclusively show that Moore had sustained a general injury, as well as a general incapacity, which could have extended to the loss of use of his arm. Moore did not plead affirmatively that he had sustained an injury to his arm, but nevertheless, his pleadings and proof would permit him to recover for a general injury. If his arm was affected as a result of the general injury to the shoulder, the proof all the more abundantly supports the finding of the jury that he had sustained a general injury. In other words, if the shoulder was the only part of the body which was injured, then regardless of the results, it is a general injury.
The Court’s opinion will compel the trial courts, in the future, to submit sole cause issues on every specific member that may become involved as a result of a general injury, whether such general injury be to the shoulder, the back, the head or the hip. Since the claimant did not affirmatively plead a specific injury to the arm, and since the defendant wholly failed to plead and prove a specific injury to the arm, and since there was no injury sustained to the arm, there was no basis for the defense that claimant’s incapacity was solely the result of incapacity to the arm. All of the evidence in this case was to the effect that the injury was to the shoulder. Since there was no actual injury to the arm, the trial court properly refused to submit the requested issue. How can it be successfully argued that the amount of recovery allowed under Section 12, Article 8306, for the loss of use of the arm can be in any sense the sole standard for measuring the compensation for the injury actually sustained, in this case, a general injury to the shoulder? Compensation is recoverable for the disability suffered by Moore from the injury to his shoulder including that occasioned to the use or function of his arm. See: Bumpus v. Massman Construction Co., Mo.App. (1940), 145 S.W.2d 458.
The holding by this Court is that although the injury concededly falls within the statutory definition of a general injury, nevertheless, it may be compensated for as a specific injury. This question must be decided in the light of the statutes and the evidence. Our statute defines injury as “damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” See: Section 20, Article 8306. This definition of injury can only be construed to mean that it requires actual damage or harm to the portion of the body in question — here to the arm of the claimant. Despite this explicit statutory definition, the Court has chosen to follow cases from other jurisdictions where the term “injury” is not defined by statute.
Section 12 of Article 8306 speaks in terms of injuries and not in terms of disability. The section says: “For the injuries enumerated in the following schedule * * It does not say: “For the disabilities enumerated in the following schedule * * (emphasis added) This Court does not have the prerogative to rewrite the statute. This is especially true where to do so would limit the Claimant’s recovery for a general injury to that allowed for an injury to a specific member. It is a fundamental principle in compensation cases that an injury must be established before the issue of incapacity or any other recovery under the Act is authorized. If the source of the claimant’s incapacity grows out of a general injury to the body or the nerves thereof, which affects the extremities (here, the arm), then the source of his trouble is general incapacity and not specific.
*190•' In the case of Texas Employers’ Insurance Association v. Brownlee, 152 Tex.247, 256 S.W.2d 76, this Court said:
“In other words, if the loss of the use of the hand resulted solely- from the ■ injury to the fingers, the respondent would he limited in his recovery to 'that provision of the statute which provides for compensation in the event of the loss of, or the loss of the use of, the fingers.” (emphasis added)
We held in Brownlee that the evidence showed indisputably that the incapacity to the right hand was due solely “to the injury to said specific members.” We made it clear that the ultimate issue where a fact issue is raised is the issue of “sole cause,” a matter which the requested issue here wholly fails to embody. There is nothing in this case which would authorize the submission of a “sole cause” issue. The claimant, Moore, is clearly entitled, to. his general injury recovery and should not be confined to a specific injury recovery since the origin of his trouble is from the general injury to his shoulder and not to his arm.
Even assuming that the Court has reached a proper result in the application of the law te this case, the requested issue was'■nonetheless properly refused. Rule 279 of the Texas Rules of Civil Procedure' provides that the court “ * * * shall submit the controlling issues made by the written pleadings and the evidence * " * (See also Rule 277). Here, there is no evidence that will support the requested special issue that inquired: “Do you find from a preponderance of the evidence that such disability, if any you have found in answer to the preceding issue, was limited to the use of the right-arm? ”
True, Aetna’s only medical expert, Dr. Richard B. Herrick, stated that he “ * * thought (Moore) would have 15% permanent partial disability of his arm” which would not “be inclined to affect any other part of his body.” From this one statement the majority concludes that the shoulder injury would affect the use of his right arm only. However, the majority opinion completely disregards other direct testimony by Dr. Herrick.1 He stated: “The patient could not and would not move his shoulder in any direction * * * his symptoms were confined entirely to his right shoulder Without reservation, Dr. Herrick stated, “I *191thought the patient had reached the point where he would have some permanent disability in his right shoulderThis testimony was never contradicted, and it was only after these statements that the doctor concluded that the injury and disability in the shoulder “ * * * would affect the use of his right arm.” When this testimony is considered with that relied on in the majority’s opinion, it is impossible for me to agree that there is evidence supporting an issue to the effect that Moore’s disability was limited to his arm. Certainly, there is evidence of disability to the arm, but there is absolutely no evidence that the disability suffered was “limited” to that member. The disability to the arm Was only a consequence of the disability and injury in the shoulder.
The issue was properly refused; the opinion of the Court of Civil Appeals should be affirmed.
GRIFFIN, J., joins in this dissent.
. When all of the testimony of Aetna’s witness, Dr. Herrick, is considered, it is impossible to conclude that there is any evidence to uphold the proposition, set out in the refused issue, that Moore’s disability is limited to Ms arm.
Key to Testimony:
“ * ⅜ ⅝ a. I have examined the shoulder once more and this time there was — this is a day or two afterwards, and by this time there was marked swelling of the entire shoulder and discoloration of the skin over an area three inches in length and one inch in width. The patient could not and would not move Ms shoulder in any direction.
“ * ⅜ ⅜ At that time his symptoms were confined entirely to Ms right shoulder, and he was developing a satisfactory range of motion, although there was still some restriction of motion in the last fifteen degrees in all directions. Internal rotation was quite painful.
“* * * A. He continued to have pain in his right shoulder on certain motions.
“ ⅜ * * q Now, Doctor, at the time you saw him last in 1959, with respect to his shoulder what was your evaluation or opinion as to his prognosis at that time?
“A. Well, the patient never returned ■ to my office and so I was unable to estimate his progress and whether he had any permanent disability or not. It was my feeling that the patient would probably have some temporary total disability to his shoulder.
“ * ⅜ ⅜ q Now, Doctor, with respect to his shoulder at the time you saw him in February of 1960, what was your evaluation of his condition and Ms prognosis ?
“A. I thought the patient had reached the point where he loould have some permanent disability in his right shoulder.
“Q. And with respect to that disability, Doctor, how would it affect him, in what parts of his body would it be—
“A. I thought it would have — well, it would affect Ms right arm, the use of his right arm.”