Citations
- 278 S.W.2d 490
Full opinion text
PITTS, Chief Justice.
This is a Workmen’s Compensation case in which appellant, Traders and General Insurance Company, was the insurance carrier for the Slaton Co-operative Gin Company, the employer by whom appellee, L. A. Hockey, was employed on October 17, 1952, when he received alleged injuries to his back while removing a bale of cotton from a gin press, out of which alleged injuries this suit arose. The case was tried to a jury upon special issues submitted and judgment was rendered upon the verdict awarding total incapacity benefits to ap-pellee for a temporary perio.d of 14 weeks and 75 per cent partial incapacity benefits thereafter for a period of 290 weeks, it appearing from the record that-appellee had been operated upon for a hernia for which appellant admitted liability.
In'its-pleadings, appellant admitted that' appellee did suffer a rupture or hernia on the occasion in question for which -he was entitled to receive compensation' for the full maximum period of 26 -weeks at a rate of $25 per week but appellant denies that appellee received any additional injury or form of incapacity to work on the occasion in question. Appellant 'further alleged that it had already paid all expenses for a successful hernia operation upon ap-pellee. However, Appellant admitted in open court that if any additional recovery' was' awarded' to appellee as a result of the alleged injux-ies, such award should be paid, to him in a lump sum and that in any -such event the maximum, rate-of $25 per week should be allowed as compensation-tor any loss of capacity found to exist, whether.it be total or partial, pei'maneiit ■ or temporary, As a l-esult of these- admissions 'made-by appellant, the only issues to be here determined are whether or not appellee’s’ earning capacity, was reduced by reason of the alleged, in juries; if so, to-what extent and for what length of time.
In determining -correct' answers to the issues, we should keep in mind that it is for lost capacity to'work that indemnity is given an employee by the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq. Lloyds Guarantee Assur. v. Anderson, Tex.Civ.App., 170 S.W.2d 312, and other authorities there cited. In the case of Maryland Casualty Co. v. Drum-mond, Tex.Civ.App., 114 S.W.2d 356 (writ refused), the- court held that the Workmen’s Compensation Law was designed to compensate the injured em'ployee for the loss of earning capacity and not for the loss of earnings. In the case of Traders and General Insurance Co. v. O’Quinn, Tex.Civ.App., 111 S.W.2d 859 (writ refused), the court held that the risk assumed by the compensation insurance carried is not one of indemnity against loss of income but one against loss of capacity to-work. The said rule was likewise announced by the court in the case of Texas Employers’ Insurance Association v. Clack, 134 Tex. 151, 132 S.W.2d 399, 401, in the following language:
“One of the underlying purposes'of our compensation statutes is to compensate. an- injured employee, not merely for loss of-earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on'a full-time básisr’
It should likewise be observed that where an issue is. made of a lump sum settlement for an employee’s injuries in a compensation case, it is proper to make proof of and.argue to the jury the employee’s inability to work, the' size of his family and the existence, if any, of their adverse circumstances and dire needs.' But when it has been admitted by the adversary that a lump sum , payment, should be paid in case of recovery in any sum at the maximum rate of $25 per week, proof of- and argument to a jury concerning, the size of employee’s family , and its dire circumstantial needs, if any, are irrelevant and probably prejudicial matters and should not be heard, especially when, there are no.-iss.ues to be determined, but the extent' and duration of appellee’s injuries, if any. Texas Employers’ Ins. Ass’n v. Lee, Tex. 256 S.W.2d 569. When essential elements of an alleged cause of action are specifically admitted by an adversary in open court, they need no evidence to substantiate them and such elements need not be submitted to a jury in such event.
Appellant complains about the admission of certain testimony given over its objections-by Dr. D. D. Cross, who, at the request of appellee’s counsel, had carefully examined appellee professionally some two- months before the trial and again more recently. Dr. Cross had testified extensively about appellee’s .physical condition and the kind arid character of work he’may. be able to do and'that'which, in his judgment, appellee would not be able to do. Thereafter, appellee’s counsel propounded the following question C ‘
“Doctor,, -if á mail gets hungry, he can do lots of things?”
•Such appears to be'merely an ex parte statement made by counsel but. he probably modified his voice so as to make it'in the form of'a question since if is’so shown in the record. Over thp urgent objections of appellant’s counsel, Dr." Cross answered:
“I know that a lot of men work with back injuries; almost as bad as this. Work eight hours and then go home and .hurt, suffer pain all night. I have patients that do that very, thing. They do .it because .they need to work,and.they' need the money to live on.”
Under the state of the record before us,' the question of counsel, if it be a question, was improper. The reply