Aetna Casualty & Surety Co. v. McCartney

WALTER, Justice.

This is a workmen’s compensation case. Charlie E. McCartney recovered judgment against Aetna for permanent partial incapacity at the rate of $34.65 per week for 300 weeks.

Aetna has appealed, contending there was no evidence to support the jury’s answers, and that such answers are against the great weight and preponderance of the evidence. Aetna also contends the court erred in submitting Special Issue No. 1 inquiring whether McCartney sustained an accidental injury because it failed to ask separately whether he sustained a general injury or a specific injury.

McCartney sustained an injury in the course of his employment while working for Tenn-Tex Alloy & Chemical Company on October 13th, 1958, when a furnace “blew out” on him.

Appellee’s petition alleged he sustained injuries to his back, spine and right side and to his left leg. He also pleaded total incapacity followed by partial permanent incapacity and loss of use, and partial loss of use of his left leg. Aetna filed a general denial and alleged that any incapacity sustained was temporary and partial.

Special Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that plaintiff, Charlie E. McCartney, sustained an accidental injury on or about October 13, 1958, iffi the course of his employment for Tenn-Tex Alloy and Chemical Company?” To which the jury answered ‘We do’.”

The jury found that “such accidental injury” inquired about in Special Issue No. 1 was a producing cause of partial incapacity which began on October 13, 1958, and was permanent. The jury also found that “stic& accidental injury” inquired about in Special Issue No. 1 was a producing cause of partial loss of use of McCartney’s left leg which began on October 13, 1958, and was permanent.

We are unable to determine whether the jury took into consideration the specific injury to McCartney’s leg or the general injury to his back and side in finding that the “accidental injury” was a producing cause of partial incapacity. We have n® findings that the general injury was a producing cause of McCartney’s disability.

In the case of Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, the plaintiff had pleaded a general injury to her neck and a specific injury to her foot. The court inquired if the plaintiff had sustained an accidental personal injury (a) to her foot (b) to her neck. The jury answered: yes to both questions. The court then inquired if such accidental injury was a producing cause of plaintiff’s incapacity tes» which the jury answered yes. Our Supreme Court held this to be an improper method of submission where there was a specific and a general injury involved. The court said: “The question naturally arises: What accidental injury? Was it the injury described in respondent’s pleadings as the injury to the foot or the injury to the neck? We cannot assume that the jury meant to say in answer to Special Issue No. 3 that the accidental injury to the neck was the producing cause of the incapacity suffered by respondent. Neither can we assume that the jury found that the accidental injury sustained to the foot was the producing cause of the incapacity. Each of the classes of injuries involved in this case are separate and distinct and are in no way related to each other. It was the burden of respondent to plead, prove and secure jury findings supporting each of the theories advanced before she would be in position to choose between the two and move the court to render and enter judgment upon the findings establishing the general injury.”

McCartney pleaded and submitted evidence of a general injury and a specific injury. The court failed to inquire separately whether he sustained a general injury to his back and side or a specific injury to his leg.

We hold McCartney had the burden of securing findings on each of these theories before he would be in a position to choose between them and secure a judgment upon the findings for a general injury. Appellant’s point of error on this matter is sustained.

The judgment is reversed and remanded.