Travelers Insurance Company v. Guidry ( 1970 )

STEPHENSON, Justice

(dissenting).

I respectfully dissent. The majority is sending this case back to the trial court for the limited purpose of fixing plaintiff’s compensation for the injury sustained to his left leg; If this means the trial court cannot consider any extension affecting other portions of plaintiff’s body, then it is my contention that there is no good legal authority for such limitation. One case is cited for this proposition. Aetna Casualty and Surety Company v. Dooley, supra. The Waco Court of Civil Appeals, in that case, makes the statement that that compensation case is being sent back for a limited purpose and cites as its authority, Aetna Casualty and Surety Company v. Bryant, 383 S.W.2d 229 (Tex.Civ.App.—Waco, 1964, no writ), another Waco Court of Civil Appeals case in which there is no writ history. A reading of the Bryant Case reveals that the trial court’s judgment for plaintiff in a compensation case was reversed and remanded, but no mention is made about any limitation upon the new trial. This compensation case cannot be tried piece-meal. It should be remanded for a new trial generally. Rule 434; Texas Employers’ Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942); Pacific Fidelity Life Ins. Co. v. Simpson, 434 S.W.2d 116 (Tex.Sup., 1968).

In agreeing that the case should be remanded, I prefer the language used by Justice Walker in Argonaut Ins. Co. v. Newman, 361 S.W.2d 871 (Tex.Sup., 1962). In my opinion, the case has not been properly tried, and should be tried again. If plaintiff is to rely upon the injury to his leg extending to and affecting his back or his cardio vascular system, or both, this theory of the case must be properly pleaded and express findings of such extension or extensions secured. I do not construe the opinions in Espinosa, supra; Marmolejo, supra; and Newman, supra, to foreclose recovery for a general disability in this case, if injury to plaintiff’s leg, plus an extension to the body generally, is pleaded, supported by the evidence, and jury findings secured.