Stone v. TEXAS EMPLOYERS'INSURANCE ASSOCIATION , 154 Tex. 21 ( 1954 )

Mr. Justice Culver

delivered the opinion of the Court.

The judgment of the trial court awarding petitioner, Stone, workmen’s compensation for total and permanent disability has been reversed and remanded by the Court of Civil Appeals (with dissent) for refusal of the trial judge to submit unconditionally the issue of partial incapacity. 266 S.W. 2d 902.

The following issues among others were submitted:

1. “Do you find from a preponderance of the evidence the total incapacity of Everett C. Stone will be ‘permanent’ or ‘temporary’ ?

“If you have answered the foregoing question ‘temporary’ then answer the following question, otherwise do not answer the same.

2. “How many weeks do you find from a preponderance of the evidence such total incapacity will last?

“If you have answered Special Issue No. 1 ‘temporary’ and have then answered Special Issue No. 2 by giving any number of weeks, answer the following question: otherwise do not answer the same.

3. “Do you find from a preponderance of the evidence that plaintiff will suffer any partial incapacity, following the end of the number of weeks found by you in answer to Special Issue No. 2?”

The jury having answered No. 1 that the total incapacity was permanent, did not answer Nos. 2 and 3.

The respondent plead as follows: “If the plaintiff sustained any incapacity, which is denied, such incapacity was temporary as distinguished from permanent” and “if the plaintiff sustained any incapacity, which is denied, such incapacity was partial as distinguished from total.” It is admitted that the petitioner was totally incapacitated at the time of the trial and had been continuously since the date of his injury. The court, assuming that fact, submitted in the disjunctive the issue as to whether the total disability was permanent or temporary. Thus the issue of temporary total incapacity was in effect submitted unconditionally. Obviously, there could not exist any partial incapacity unless the total incapacity was temporary.

Many cases support the general proposition that “partial incapacity” is an affirmative defense to “total incapacity,” and that the insurer is entitled to an unconditional submission of the issue of “partial incapacity” if raised by the evidence and pleadings. Traders & General Insurance Company v. Shanks, Texas Civ. App., 83 S.W. 2d 781, wr. of er. ref.; Texas Indemnity Ins. Co. v. Thibodeaux, 129 Texas 655, 106 S.W. 2d 268; Texas Employers Ins. Ass’n. v. Phillips et al, 130 Texas 182, 107 S.W. 2d 991; Wright v. Traders & General Ins. Co., 132 Texas 172, 123 S.W. 2d 314; United Employers Casualty Co. v. Thornton, Texas Civ. App. 151 S.W. 2d 920, wr. of er. ref.; Federal Underwriters Exchange v. Lynch, 140 Texas 516, 168 S.W. 2d 653; Southern Underwriters v. Samanie, 137 Texas 531, 155 S.W. 2d 359, and Southern Underwriters v. Wheeler, 132 Texas 350, 123 S.W. 2d 340.

All of these, cases were decided prior to the adoption of the present rules of civil procedure. In the latest one, Federal Underwriters against Lynch, the court observes:

“* * * The case was tried before the effective date of our present rules of civil procedure, therefore the questions raised must be considered in the light of the principles then applicable.”

These rules are to be given liberal construction to the end that litigation may be conducted impartially and expeditiously resolved. Rule 1, T.R.C.P. In the adoption of Rules 277 and 279 the object was to simplify the submission of cases to the jury under our special issue practice and to avoid much duplication and confusion that theretofore existed. Thus in Rule 277 a disjunctive form of submission is approved for two inconsistent issues where one or the other is necessarily true. In Rule 279 it is provided that “where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

In none of the cases cited above and relied on by the respondent is the question presented exactly as it is in this case. In most of the charges condemned the issues are substantially in this form: “Do you find from a preponderance of the evidence that the total incapacity of plaintiff, if any, is permanent?” followed by the instruction that if the issue is answered “yes” the issue as to partial incapacity is not to be answered. In this case the jury was asked in the disjunctive form whether the total disability is permanent or temporary, which was, in accordance with the rules, an unconditional submission of the issue as to temporary incapacity.

No objection was leveled to the form of Special Issue No. 3 other than that it should have been submitted unconditionally and that it improperly placed the burden of proof. Assuming that the court had omitted the instruction which immediately followed Issue No. 2 would not the form of the question be interpreted by the jury that there could be no partial incapacity if the admitted total incapacity was permanent and not temporary. Then how could the respondent have been injured by the instruction which necessarily must be read into the question itself?

The controlling issue in this case is whether or not the total incapacity is permanent or temporary. If permanent, the case is ended. If temporary, then the jury must proceed to determine the extent and duration of partial incapacity, if any. Human experience indicates that where there is temporary total incapacity resulting from trauma there will usually follow a period of partial disability. But the jury might find to the contrary. Be that as it may, a plea of “partial incapacity” is not a defense to “permanent total incapacity.” The defense to that issue is that it is “temporary.” If the jury had answered that the total incapacity was temporary the burden would be on plaintiff to prove that partial incapacity existed after the period of total incapacity as well as the extent thereof. Under the pleadings and the evidence in this case the court correctly submitted the issue of partial incapacity conditioned upon the answer to the disjunctive issue as to whether the total incapacity was permanent or temporary.

We do not necessarily overrule the decisions in the cases referred to above. There are situations which may require an unconditional submission. For instance, in Federal Underwriters v. Lynch, supra, the issue made by the pleadings and the evidence was whether or not Lynch had sustained a total or partial loss of the use of his right leg.

Respondent in its brief says that its contention was that the total incapacity was not permanent and was followed by a period of partial incapacity. It argues that the manner of submission deprived it of that defense and there was afforded no opportunity to present its theory of the case to the jury. On the contrary, any testimony offered to prove partial incapacity bore directly on the defense that the total disability was a temporary condition and not permanent. To say that the “period of total incapacity was followed by a period of partial incapacity” adds nothing to the defense that the total incapacity was temporary. Before the jury could be interrogated as to whether or not there was partial incapacity the defendant should secure an affirmative answer to his affirmative defensive issue that it is temporary.

The only issue requested by the defendant was “Do you find from a preponderance of the evidence that the plaintiff will not suffer any partial incapacity.” This issue was not limited as to time and did not confine the jury to a consideration of a period after the total incapacity had ceased. At best it would be only confusing and, regardless of how answered, would not afford any basis for judgment.

The tendency to simplify our special issue practice is a mark of progress toward the promotion and speedy disposition of litigation, particularly in this kind of a case where the award is to be made in lieu of wages lost by injury. Certainly confusion should be eliminated where the substantial right of the defendant to have his defense fairly submitted to the jury is not infringed.

The judgment of the Court of Civil Appeals is reversed and rendered and that of the trial court is affirmed.

Justice Walker not sitting.

Opinion delivered November 10, 1954.