Home Indemnity Co. v. McKay

543 S.W.2d 171, 1976 Tex. App. LEXIS 3286

• Court: Court of Appeals of Texas
• Decided: October 27, 1976
• Docket: 15580
• Status: Published

Opinions

KLINGEMAN, Justice.

This is an original proceeding in this Court in which the Home Indemnity Company, relator, seeks a writ of mandamus to compel Honorable James A. McKay, Jr., District Judge of the 150th Judicial District Court of Bexar County, Texas, to enter judgment on the verdict in Cause No. 74-CI-9607, Lulu Belle Flores v. The Home Indemnity Company, Inc., a/k/a The Home Indemnity Company, and to set aside his order therein declaring a mistrial.

The case in which the order of mistrial was entered is a workmen’s compensation case. Trial was to a jury, and during the process of the trial the parties stipulated that the average weekly wage of the respondent, Lulu Belle Flores, for the purpose of the trial, was $80.77.

The only special issues submitted may be summarized as follows:

1. Plaintiff received an injury on or about March 15, 1974.

2. She was injured in the course of her employment.

3. The injury was not a producing cause of any total incapacity.

4. The injury was a producing cause of some partial incapacity.

4A. The partial incapacity began on March 19, 1974.

4B. The partial incapacity ended on April 19, 1974.

4C. Plaintiff’s average weekly earning capacity during partial incapacity was $80.77.

5. Chiropractic and physical therapy services were reasonably required as the result of such injury.

5A. The reasonable cost of such required chiropractic and physical therapy services was $455.00.

Defendant filed a motion for judgment asserting that under the jury verdict, when considered in connection with the stipulation made by the parties, plaintiff was entitled to a judgment of $455.00 for past chiropractic and physical therapy services, and that defendant was entitled to a take-nothing judgment as to plaintiff’s claims for all other workmen’s compensation benefits. Plaintiff filed a motion for mistrial alleging that the jury’s answers to Special Issue No. 4 and Special Issue No. 4C are in irreconcilable conflict and will not support a judgment, requiring a mistrial. The trial court overruled defendant’s motion for judgment, finding that the answers to such issues are irreconcilable conflict, and also granted plaintiff’s motion for mistrial on the same grounds.

The special issues submitted to the jury were submitted in accordance with the new Texas Pattern Jury Charges. The definitions of “total incapacity,” “partial incapacity,” and “earning incapacity” are identical with the definitions given in PJC 22.02 (Yol. 2, 1970). The pertinent definitions here involved are as follows:

‘PARTIAL INCAPACITY’ means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity.

A person cannot have both total and partial incapacity at the same time.

‘EARNING CAPACITY’ means ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed. It does not necessarily mean the actual wages, income, or other benefits received during the period inquired about.

Both parties cite and rely on our Supreme Court’s decisions in Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961), and Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961). Respondent asserts that the case before us is on all fours with and controlled by Holland, and that the trial court correctly granted a mistrial. Relator, on the other hand, asserts that this case falls within the holding in Craik, and that relator is entitled to have a judgment in accordance with the jury’s verdict.

Both Holland and Craik were handed down by the Supreme Court on the same date, and the Supreme Court referred to such cases as companion cases.

In Holland, the parties stipulated that the average weekly wage of plaintiff before and at the time of injury was $100.00. The jury found that the injuries suffered by plaintiff were a producing cause of some partial incapacity. In answer to another special issue, the jury found that the average weekly wage earning capacity during the existence of his partial incapacity was $100.00, exactly the same as his average weekly wage before and at the time of the injury. The Court stated that it was quite clear from the language of the Workmen’s Compensation Act that partial incapacity cannot exist unless the average weekly earning capacity after injury is less than the average weekly wage before injury. The Court held that the jury’s answers to Special Issues Nos. 2 and 6 could not be reconciled, and that the order of mistrial was proper.

In Craik, the parties stipulated that the average weekly wage of the plaintiff before his injury was $86.80. In Answer to Special Issue No. 9, the jury found that the plaintiff had sustained a partial disability as a result of his injury, but in answer to Special Issue No. 13, found that plaintiff’s average weekly wage earning capacity during his disability was $86.80. The trial court held that the jury’s answers to these issues, when considered with the stipulation, were in fatal conflict and ordered a mistrial. The Supreme Court held that there was not fatal or irreconcilable conflict in the jury’s answer even when considered with the stipulation of plaintiff’s average weekly wage. The Court, in discussing the two cases, stated that there was a material difference in the posture of the cases as they came to the Supreme Court, and that the difference lies in the definition of “partial incapacity” as given in the Holland case¹ and “partial disability” as given in the Craik, case.²

The Court, in Craik, stated:

It will be observed that under the foregoing definition the jury could find that the plaintiff has suffered a partial disability without finding that he had suffered ‘a depreciation or deduction in his earning capacity.’ Under the definition, the jury was authorized to find partial disability if the plaintiff was ‘able to procure and retain employment reasonably suitable to his physical condition and ability to work’ even though he had suffered no depreciation in his earning capacity.

It is to be noted that the definition of partial incapacity in the case before us is plain and simple — partial incapacity means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity. It contains no other alternatives.

As before stated, the special issues submitted to the jury were in accord with the new Texas Pattern Jury Charges, and Special Issue No. 4C is worded exactly the same as PJC 22.12, Earning Capacity During Partial Incapacity (Alternative).³ The comment contained under such special issue contains the following caveat:

CAVEAT. If the above issue is used, a finding by the jury of average weekly earning capacity which is as much or more than the plaintiff’s average weekly wage before the injury would be in conflict with a finding of partial incapacity. See Employers Reinsurance Corp. v. Holland, 347 S.W.2d 605 (Tex.1961). See also Indem. Ins. Co. of No. America v. Craik, 346 S.W.2d 830 (Tex.1961) (no conflict where partial incapacity defined in terms other than reduction of earning capacity).

We have concluded that under the holding of the Supreme Court in Holland and Craik and the comment hereinabove referred to in the new Texas Pattern Jury Charges, that the trial court was correct in overruling defendant’s motion for judgment and that his order of mistrial was proper. Writ of mandamus is denied.

1 . Partial incapacity was defined in the charge as follows:

‘It shall mean where an employee by reason of injuries sustained in the course of his employment is only able to perform part of the usual task of a workman, but nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work or is only able to perform labor of a less remunerative class than he performed prior to his injuries, whereby he suffers a depression or reduction in his earning capacity.’

2 . Partial disability was defined in the charge as follows:

‘By the term “partial disability” is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity.’

3 .“Section 11 of Article 8309 [8306] requires determination of the ‘difference between [the injured employee’s] average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity.’ The court may compute this ‘difference’ by subtracting the amount found in answer to the above issue from the employee’s average weekly wage before the injury as determined from the jury’s answer . . . or as stipulated by the parties.”