Indemnity Insurance Co. of North America v. Craik

346 S.W.2d 830, 162 Tex. 260, 4 Tex. Sup. Ct. J. 486, 1961 Tex. LEXIS 628

• Court: Texas Supreme Court
• Decided: May 24, 1961
• Docket: A-7803
• Status: Published

Opinions

MR. CHIEF JUSTICE CALVERT

delivered the opinion of the Court.

Respondents’ motion for rehearing is granted. The opinions delivered on February 15, 1961, are withdrawn, and the following is substituted as the opinion of the court.

This is an original proceeding in this court in which Indemnity Insurance Company of North America, relator, seeks a writ of mandamus to compel Honorable Harold Craik, Judge of the District Court of the 153rd Judicial District, Tarrant County, to set aside his order of mistrial and to enter judgment on the verdict of the jury in Cause No. 10,475-C, Fred A. Mize vs. Indemnity Insurance Company of North America.

The case in which the order of mistrial was entered is a workmen’s compensation case. The parties stipulated that the average weekly wages of the plaintiff, Mize, 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 the plaintiff’s average weekly wage earning capacity during his disability was $86.80. It was because of Judge Craik’s belief that the jury’s answers to these issues, considered with the stipulation, were in fatal conflict that he entered his order of mistrial.

We have regarded this case and Employers Reinsurance Corp. v. Honorable William M. Holland, this day decided, 347 S.W. 2d 605, as companion cases and have considered them together. What is said in the opinion in the Holland case need not be repeated here. There is a material difference in the posture of the cases as they come to us. That difference lies in the definitions of “partial incapacity” as given in the Holland case and “partial disability” given in this case. The definition of “partial disability” given in connection with the submission of special issue No. 9 in this case reads 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.”

It is the duty of the court to reconcile apparent conflicts in jury findings if reasonably possible. Ford v. Carpenter, 147 Tex. 447, 216 S.W. 2d 558, 562. The apparent conflict in the jury’s answers to special issues Nos. 9 and 13 :may reasonably be resolved by a precise interpretation of the definition of “partial disability” by which the jury had to be guided in answering special issue No. 9.

It will be observed that under the foregoing definition the jury could find that the plaintiff had 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 follows that there is no fatal or irreconcilable conflict in the jury’s answers to special issues No. 9 and 13, even when considered with the stipulation of the plaintiff’s average weekly wages.

The definition used in this case was approved in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W. 2d 991. We suggest, however, that the punctuation of the definition in the Holland case is more accurate in carrying out the intent of the Workmen’s Compensation Act.

We assume that Judge Craik will set aside his order of mistrial and will enter judgment in favor of Indemnity Insurance Company of North America on the verdict of the jury. A writ of mandamus will issue only if he does not do so.

SMITH, CULVER, GREENHILL and STEAKLEY, Justices, concur in the result.