Quattlebaum v. Texas Pipe Line Co.

ODOM, J.

The plaintiff was employed by the defendant as a laborer on a pipe line in the oil field at a weekly wage of $24.00. On June 30, 1925, while at work on a pipe line, he was struck by lightning and seriously disabled. He says that his right arm was badly twisted and remained in a disabled condition up to the time of the trial, although, he says, there has been considerable improvement. In addition to his right arm being injured by the shock, it seems that his nervous system was considerably impaired, and from the date of the shock up to the trial of the case in November, 1925, he suffered pain in the right arm and in other portions of his body. He testified that he had not been able to do any work of a reasonable character since the date of the accident but that he is not totally disabled from doing work of any kind. He says that he could do light work, or such work as would not require physical exertion.

The testimony is undisputed that from the date of the accident he had done no work. However he says that he and his grandchildren have gone over the country picking up copper wire and other articles of junk and have sold junk to the value of $30.00. This, according to his testimony, is all that he has earned since the date of the accident*

Just how long he had worked for the defendant at the time he was injured is not disclosed by the evidence.

Plaintiff says • that previous to the date on which he went to work for defendant he had been- a labor foreman. He says that such work as he had been engaged in prior to that time required considerable physical exertion, as it sometimes became necessary for him to climb up on houses and other structures in order properly to direct the work, and he says that in his present physical condition he cannot do that work now.

There were two physicians called, each of whom stated that the plaintiff was not, at the time of the trial, able to do any work requiring physical exertion; but stated, however, that, in their opinion, he was not totally disable.d to do work of any kind. They stated that he should be able to do light work, but they did not suggest what kind of work he would probably be able to do.

The testimony of the plaintiff, which is not disputed, is that up to the time of the accident he was in first-class physical condition, and to illustrate that he was, he stated that on the morning of the day of the accident, previous to going to work, he had scratched the top of his head with his right foot.

Plaintiff was 53 years old at the time of the accident, and stated that up to that time he had never had any physical disorder and, so far as he knew, there was absolutely nothing the matter with him physically.

The district judge awarded plaintiff compensation at 65% of the amount of wages he was receiving at the time of the injury, or $15.60 per week, for a period of 300 weeks.

The fact that he awarded plaintiff compensation at 65% of the amount of his wages at the time of the injury, indicated that he found that plaintiff was totally disabled; b'ecaúse for partial disability the statute' provides for compensation at 65% of the' difference between the amount of wages plaintiff was earning at the time of the injury and the amount he was able to earn thereafter.

On the contrary, the fact that he awarded compensation during disability for three hundred weeks indicates that he found that plaintiff was only partially disabled.

We are inclined, however, to the view that the court held that plaintiff is totally disabled to do work of a reasonable character and that his fixing the period over which the compensation should be paid at not exceeding three hundred weeks was probably a clerical error.

The defendant did not appeal from the judgment of the District Court. However it moved in this court to amend the judgment and asked that the suit be dismissed as in case of non-suit.

We cannot say that the court manifestly erred in • holding that plaintiff is totally disabled to do work of a reasonable character, although it is in evidence that he is able to do light work.

But the fact is that he had been unable to find any work that he could do up to the time of the trial.

However, there seems to- be no serious contention on the part of the defendant that the judge erred in fixing the compensation at $15.60 per week.

. Counsel for defendant in brief argue that the testimony shows that plaintiff is only partially disabled, but in the concluding portion of their brief they state as follows:

“As a practical proposition, whether the plaintiff's contention, or that of the defendant, is correct, the district judge probably reached the correct conclusion, inasmuch as the plaintiff was earning substantially nothing at the time of the trial and his recovery is properly, fixed at 65% of his wages at the time of the accident, and inasmuch as the case can be reopened after a period of twelve months if it should develop on the one hand that plaintiff is able to earn something which would reduce the amount _ of his recovery, or on the other hand, if 'it should develop after that time that he will prabably be permanently and totally disabled to do work of a reasonable character.

“We accordingly feel that the judgment of the lower court should be sustained for that reason.”

We take this to mean that defendant concedes that plaintiff is totally disabled to do work of a reasonable character.

That being true, the district judge erred in fixing the period over which compensation should be paid at not exceeding three hundred weeks, for in cases of total disability the compensation to be paid under the statute is during disability, not exceeding four hundred weeks.

There is, therefore, but one thing for this court to do and that is, to amend the judgment so as to provide that plaintiff shall receive compensation during his disability not exceeding four hundred weeks.

Por the reasons assigned; it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to provide that plaintiff shall receive compensation at sixty-five per cent of .the wages he was receiving at the time, he was injured during his disability, not exceeding four hundred weeks; and, • as thus amended, the judgment is affirmed. Defendant to pay all costs.