Full opinion text
Mr. Justice Sharp, delivered the opinion of the Court. This case is before us on a certified question from the Court of Civil Appeals at Dallas. The case was tried in the district court on an agreed statement of facts. Counsel for appellant and for appellee have both agreed that this suit involves the construction of Section 12 of Article 8306, R C. S., known as the Workmen’s Compensation Law. The essential facts are stated in the certificate of the Court of Civil Appeals, and in substance are as follows: (1) That on January 4, 1944, Tyra Ellison Holmes' was employed as a welder at a wage of $125.00 a week by E. B. Snead, who was a .subscriber to the Workmen’s Compensation Insurance Law of Texas and carried his compensation insurance with the Texas Employers’ Insurance Association; and that this insurance was in full force and effect on January 4, 1944, and covered Holmes as well as other employees of Snead on that date. (2) That on January 4, 1944, while working in the course of his employment in Dallas County, Texas, an- acetylene cutting torch, which Holmes was using to cut a small container attached to a 500 gallon tank, ignited oil in the tank, which severely burned Holmes’ right leg, leaving a scar over an. area of six inches long and five or six inches wide. The burn was of the third degree. It caused Holmes to be hospitalized eleven days, and has left him with scar tissue in the burned area and he feels a dull pain in his right leg when he stands on same and uses it a full day. That on March 1, 1944, Holmes went back to work as a welder for Snead at $125.00 per week, and he has continued in that employment at the above wages six to seven days a week and working eight to fourteen hours each day. (3) That Holmes was paid two weeks’ compensation at the rate of $20.00 per week. (4) That Holmes sustained a specific injury to his right leg, which resulted in his total incapacity to work for eight weeks, followed by a permanent 35 per. cent partial loss of the use of his right leg’. It is agreed that the compensation period is the 200 week period provided in Section 12 of Article 8306 for the partial loss of use of a leg, and that Holmes’ average weekly wage on the date that he sustained his injury was $95.24. (5) That the question involved is one of law, namely, the correct method of calculating the amount of compensation due weekly for permanent, partial loss of use of a specific member, which involves the construction of Section 12 of Article 8306. (6) That the district court, sitting without a jury, found that Holmes was “entitled to recover eight weeks’ compensation at the rate of $20.00 per week for total loss of use of his right leg and 192 weeks of compensation at the rate of $20.00 per week for 35 per cent permanent partial loss of use of his right leg, totaling $4,000.00, less $40.00 for two weekly compensation payments heretofore made, leaving a balance of compensation accrued and to accrue of $3,980.00.” The judgment of the trial court ordered that Holmes recover from Texas Employers’ Insurance Association the sum of $3,936.37, with six per cent interest per annum thereon from the date of such judgment. We quote as follows from the certificate of the Court of Civil Appeals: “Texas Employers Insurance Association has appealed to this court, contending that the District Court erred in its method of calculating the weekly compensation payments for permanent partial loss of use of a specific member; and here refer particularly to the latter part of Section 12, reading: ‘The compensation paid therefor shall be sixty per cent of the average weekly wages of the employes but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine.’ “The. District Court’s calculation is in conflict with the decisions of the Courts of Civil Appeals in the following cases: Western Indemnity Company v. Milam, 230 S. W. 825 (writ refused) ; Millers’ Indemnity Underwriters v. Cahal, 257 S. W. 957; Glenn v. Industrial Accident Board, 184 S. W. (2d) 302 (reversed on other grounds by Supreme Court, 195 S. W. (2d) 805) ; Zurich General Accident & Liability Insurance Company, Ltd. v. Thomas, 187 S. W. (2d) 689. The District Court’s holding is also contrary to the first opinion delivered by the Supreme Court in Industrial Accident Board v. Glenn, No. A-439 on the docket of the Supreme Court, delivered April 19, 1945. However, it is in accord with the second opinion in Industrial Accident Board v. Glenn, (184 S. W. (2d) 302) delivered July 19, 1945, and with the decisions of the Courts of Civil Appeals in the following cases: Maryland Casualty Company v. Ferguson, 252 S. W. (2d) 854 (writ refused), Dohman v. Texas Employers’ Insurance Association, 285 S. W. 848.” Because of the conflict of decisions by the Courts of Civil Appeals, and because of the final opinion in the case of Industrial Accident Board v. Glenn, 144 Texas 378, 190 S. W. (2d) 805, delivered November 14, 1945, which withdrew both former opinions and left the question undecided, the Court of Civil Appeals certified the following question: “Was the District Court correct in calculating the weekly compensation to be paid to the employee, Tyra Ellison Holmes, for permanent 35% partial loss of use of his right leg to be $20.00 per week instead of 35% of $20.00 or $7.00 per week?” The certificate points out clearly the conflicting constructions placed upon the Workmen’s Compensation Law by the Courts of Civil Appeals as well as by this Court. Unquestionably the law is not free of ambiguity, or there would not have been so many conflicting constructions of certain provisions of the law. Both constructions cannot be correct and both cannot stand. The question presented requires this Court to decide which construction is correct and must be followed in the future. Therefore the provisions embraced in the law must be re-examined, in order to ascertain the purpose of the law, the intention of the Legislature expressed therein, and to decide the correct construction to be given the law. The Workmen’s Compensation Law was enacted in 1917 to remedy certain conditions that had long existed between employees and employers. Both employees and employers were dissatisfied with the old system of litigation concerning suits brought for injuries, such litigation being expensive and ofttimes resulting in vexatious delays. The Workmen’s Compensation Law was enacted mainly to do away with certain inflexible rules relating to the issue of negligence, accident, assumed risk, contributory negligence, and other like issues, in cases of injury or death resulting from accident to an employee in the course of his employment, and more equitably to distribute the economic burdens in such cases. It was intended by the enactment of this law to effect prompt and inexpensive settlements and to make the amount recoverable free of any uncertainty, and also that the compensation allowed to an employee for injuries would be awarded upon broader and more humane rules. The law has become a part of the industrial and economic structure created by modern conditions and development in practically all the leading nations of the world. 71 C. J., p. 250, sec. 16. The Workmen’s Compensation Law comprehensively describes the amount of damages and compensation to be allowed an employee for certain personal injuries sustained in the course of his employment. The law also created an Industrial Accident Board, and provided that “All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as othenoise provided, be determined by the Board.” (Emphasis ours.) Section 5 of Article 8307. In order to carry out the purposes of the law, the Texas Employers’ Insurance Association was created. Article 8308. Section 12 of Article 8306 is a very important section of the Workmen’s Compensation Law, and is the section specifically involved here. The first paragraph, of said section reads as follows: “Sec. 12. For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent of the average weekly wages of such employee, but not less than $7.00 per week nor exceeding §20.00 per week, for the respective periods stated herein, to-wit: * * *” (Emphis ours.) After this paragraph some nineteen specific parts of the body for which compensation is provided are listed, and then follows this paragraph : “In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and dr ano the same compensation as the loss of that member.” (Emphasis ours.) Between the two paragraphs quoted above there is included the compensation schedule for the loss of a leg. After the latter paragraph quoted above there are seven paragraphs which are not quoted, and then an eighth paragraph, which reads as follows: “In all other cases of paHial incapacity, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee, compensation shall be determined according to the percentage of incapacity, taking into account among other things any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employee, and the age at the time of injury. The compensation paid therefor shall be sixty per cent of the average weekly toages of the employees but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine. Whenever the weekly payments under this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the board. [Acts 1923, p. 386.] ” (Emphasis ours.) The trial court found that the amount of compensation due Holmes, resulting from his injury, totaled the sum of $4,000.00, less certain weekly payments theretofore made, leaving a balance of compensation accrued and to accrue of $3,980.00, and entered judgment for Holmes in the sum of $3,936.37. Appellant contends that the trial court erred in its. calculation as to the amount that Holmes was entitled to recover, and that the sum due him for his injuries is the sum of $1,400.00. Appellant also contends that: “The compensation payable to appellee must be calculated according to the following formula as stated in the concluding part of Section 12 of Article 8306: “ ‘The compensation paid therefor shall be sixty per cent of the average weekly wages of the employee but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine.’ ” Appellant further contends: “The statute requires the following: “1. That the ‘average weekly wages of the employee’ be ascertained. “2. That this figure be multiplied by sixty per cent. “3. That if the result is higher than $20.00, then that it be reduced to $20.00. “4. That the result thus arrived at be mltiplied by ‘the percentage of incapacity.’ “5. That this final result be paid for such period not exceeding three hundred weeks, ‘as the Board may determine.’ ” Appellee, on the other hand, contends that the calculation made by the trial court is correct. The courts have generally held that Workmen’s Compensation Acts must be given a liberal construction, in order to effectuate their purposes. See 71 C. J., pp. 345-348, sec. 65, and the authorities cited in the footnotes, and 28 R. C. L., p. 755, sec. 50. This Court has uniformly held that our Workmen’s Compensation Law is a remedial statute, which should be liberally construed, with a view to' accomplish its purposes and to promote justice. Huffman v. Southern Underwriters, 133 Texas 354, 128 S. W. (2d) 4; Cassell v. United States Fidelity & Guaranty Co., 115 Texas 371, 283 S. W. 127, 46 A. L. R. 1137; 4 Texas Law Review 537; Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Texas 103, 246 S. W. 72, 28 A. L. R. 1402; Federal Surety Co. v. Ragle (Tex. Com. App.), 40 S. W. (2d) 63; see 45 Tex. Jur., p. 363, sec. 7. Furthermore, the rule is now generally accepted that compensation Jaws are to be construed liberally for the protection of employee. 71 C. J., p. 351, sec. 66 B; Id., p. 793, sec. 517. In construing our Workmen’s Compensation Law, the courts of this State have uniformly announced the foregoing rule. United States Casualty Co. v. Hardie (Tex. Com. App.), 299 S. W. 871; Lumbermen’s Reciprocal Ass’n v. Behken, supra; McClure v. Georgia Casualty Co. (Tex. Com. App.), 251 S. W. 800; Huffman v. Southern Underwriters, supra; Texas Employers’ Ins. Ass’n v. Volek (Tex. Civ. App.), 44 S. W. (2d) 795 (affirmed, Tex. Com. App., 69 S. W. (2d) 33, cert, denied 293 U. S. 598, 55 S. Ct. 116, 79 L. Ed. 691). In the case of United States Casualty Co. v. Hardie, supra, it was said: “In view of the fact that the Workmen’s Compensation Law arbitrarily restricts the rights of employees who come within its provisions, it has been the policy of the courts of this state to give as broad and liberal construction of such act in favor of the employee as the terms of the act will permit. Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Texas 103, 246 S. W. 72, 28 A. L. R. 1402; McClure v. Georgia Casualty Co. (Tex. Com. App.), 251 S. W. 800.” The sharp conflict of opinion arises over the construction of that part of the Act which reads, “not to exceed $20.00 per week.” We find that substantially the same language is used in Sections 8, 10, 11, and the first paragraph of Section 12, in fixing the amount of recovery for each week. Thus it is seen that the maximum amount allowed for weekly compensation in all the sections of this Article where it is mentioned is $20.00. The Act should be construed as a whole, in order to secure the benefits intended by its enactment. 39 Tex. Jur., p. 209, sec. 113. The plan embodied in the Workmen’s Compensation Law is a radical departure from the old method of settling claims and disputes between employees and employers in the industrial world, and it met powerful opposition. In view of the scope and purpose of the workmen’s Compensation Law, it is but natural to have conflicting views as to the construction of its provisions. The tendency of our early decisions was to give the Act a strict construction, but later decisions gave the Act a more liberal construction. The courts of this State, as well as federal courts, have handed down conflicting opinions regarding the construction of certain provisions of this Act. The Court of Civil Appeals in its certificate has pointed out the conflict of decisions in certain opinions of the Courts of Civil Appeals, as copied above. The Court of Civil Appeals at Beaumont decided the cases of Western Indemnity Co. v. Milam, 230 S. W. 825 (writ refused), Millers’ Indemnity Underwriters v. Cahal, 257 S. W. 957, and Dohman v. Texas Employers’ Ins. Ass’n, 285 S. W. 848. In the Milam and Cahal cases that court held in accord with the contentions urged by appellant in this case. The Dohman case was decided after the decisions in the other two cases just mentioned were handed down, and the opinion in the Dohman case construed the law the same as the trial court did in this case. However, no mention was made in that case of the prior holdings of that court in the Milam and Cahal cases. The decision in the Milam case was rendered in 1921, and in 1923 the decision of the Court of Civil Appeals at El Paso in the case of Maryland Casualty Co. v. Ferguson, 252 S. W. 854, was directly opposite to the decision in the Milam case. It will' be observed that this Court refused a writ of error in the Ferguson case, and the Court of Civil Appeals in the Dohman case followed the judgment in the Ferguson case in construing the Act, and said: (285 S. W. (2d) 851.) “This is the rule followed by the Industrial Accident Board, and the courts will follow the construction placed upon the act by the board, unless clearly wrong. Maryland Casualty Co. v. Ferguson, supra.” Appellant contends that the language used in this law is so plain that reasonable minds cannot differ as to its meaning, and that it should be construed as contended for by appellant. However, the conflict in the opinions rendered by the courts in construing this law, to our minds furnish indisputable proof that its meaning is not free of ambiguity. In order to see if there is a basis to support the judgment of the trial court, let us look at the decisions of the courts, the decisions of the Industrial Accident Board, and the actions of the Legislature, relating to this part of the statute. As stated, the law was originally enacted in 1,917. Since its enactment, the Industrial Accident Board, the tribunal specifically created by the law to determine question arising under this law, has uniformly construed the part of the law involved here the way the trial court construed it in this case. Then in 1923, in the Ferguson case, the Court of Civil Appeals construed the Act in harmony with the construction given it by the Industrial Accident Board, and this Court approved that opinion by refusing a writ of error. The holding in the Ferguson case was followed later in the Dohman case; and the Circuit Court of Appeals, in 1928, in the case of Maryland Casualty Co. v. Laughlin, 29 Fed. (2d) 343, followed the decisions in the Ferguson and Dohman cases. If a statute is ambiguous and susceptible of more than one construction, there are certain well-settled rules which govern its construction. In the dissenting opinion in the case of Industrial Accident Board v. Glenn, 144 Texas 378, 190 S. W. (2d) 805, 808, Mr. Justice Simpson gives the following rules for the construction of such a statute: “First, the practical interpretation of the Act by the agency charged with the duty of administering it is entitled to the highest respect from the courts. And this is especially so' when that interpretation has been long continued and uniform. Maryland Casualty Co. v. Ferguson, supra; Dohman v. Texas Employers’ Ins. Ass’n, supra; 39 Tex. Jur. 235 et seq.; 42 Am. Jur. 392 et seq. Second, the Act is to be given a liberal construction in favor of the injured employee in order to give the relief intended and to effectuate the beneficient purposes of the legislation. Texas Employers’ Ins. Ass’n v. Volek (Tex. App.), 44 S. W. (2d) 195 (affirmed, Tex. Com. App., 69 S. W. (2d) 33, cert. denied 293 U. S. 598, 55 S. Ct. 116, 79 L. Ed. 691) ; 45 Tex. Jur. 363 et seq.” There is another well-settled rule to guide us in the construction of a statute which is uncertain and ambiguous, and it is stated in 39 Tex. Jur., p. 266, sec. 141, as follows: “Where a statute which has been construed, either by a court of last resort or by executive officers, is re-enacted without any substantial change of veribage, it will continue to receive the same construction.” Section 12 of the Act under consideration was amended by the Legislature in 1923, and the Act was further amended in 1927, 1931, 1939, and 1941. The Legislature is presumed to have known the construction given this statute by the Industrial Accident Board and the courts, and by thus amending the statute at intervals in the manner above stated, the Legislature endorsed the construction theretofore given the statute by the Industrial Accident Board. Also, by the adoption of the Revised Civil Statutes of 1925 the Legislature left no doubt about its construction of this Act when it re-enacted Section 12 without change, after its construction by the Industrial Accident Board and the refusal of a writ of error by this Court in the Ferguson case. The construction given an original Act should be regarded as having been brought forward in amendments to the Act, if the amendments have not obviously changed such construction, and the construction to be given a re-enacted statute should be the same as that given to the original Act, and a different construction will be given only for impelling reasons. Texas Fidelity & Bonding Co. v. City of Austin, 112 Texas 229, 246 S. W. 1026, Cassell v. United States Fidelity & Guarantee Co., 115 Texas 371, 283 S. W. 127, 46 A. L. R. 1137, 4 Texas Law Review 537; International Travelers’ Ass’n v. Bettis, 120 Texas 67, 35 S. W. (2d) 1040; Patton v. Home Mut. Life Ins. Co., 143 Texas 373, 185 S. W. (2d) 420; 39 Tex. Jur., pp. 266-268, sec. 141, and the decisions in the footnotes. It is quite clear that this case presents no convincing reason for a construction of the Act under consideration different from that heretofore given it. We have pointed out the language used in Sections 8, 10, 11, and 12, in fixing the amount of recovery for each week. In order to arrive at the legislative intent, the language used in all of the sections should be liberally construed. The first paragraph of Section 12 provides for “a weekly compensation equal to sixty per. cent of the average weekly wages of such employee, but not less than $7.00 per week nor exceeding $20.00 per week.” Section 11 refers to compensation for partial incapacity, and contains the proviso, “but in no case more than $20.00 per week.” The last paragraph of Section 12 contains the proviso, “but not to exceed $20.00 per week.” In the recent case of Associated Indemnity Corporation v. McGrew, 138 Texas 583, 160 S. W. (2d) 912, the construction of the language used in Section 11 was involved. Mr. Justice Brewster wrote the opinion of this Court in that case, and held that the $20.00 is a limitation on the final maximum weekly compensation, and not a basis or formula for computing compensation. Attention is called in. the certificate to the various opinions rendered in the Glenn case. In the opinion of the Court of Civil Appeals in the Glenn case, published in 184 S. W. (2d) 302, and in the original opinion of this Court, dated April 18, 1945, the opinion in the case of Fidelity Union Casualty Co. v. Munday (Tex. Com. App.), 44 S. W. (2d) 926, is the principal authority relied upon to sustain the conclusion reached by both courts. The Munday case was decided in 1932. If that case definitely settled the construction of the law under consideration, it is significant that the Industrial Accident Board continued its construction otherwise, and the Legislature did not amend the law in such a manner as to show its disapproval of the construction given it by the Industrial Accident Board and to approve the Munday decision. Mr. Justice Simpson, in his dissenting opinion in the Glenn case, already referred to, in analyzing the Munday case said: “In deciding this cause, the Court of Civil Appeals took the view that the case of Fidelity Union Casualty Co. v. Munday (Tex. Com. App.), 44 S. W. (2d) 926, compelled a different conclusion. I do not so regard it. In that case, the Fidelity Union Casualty Company was urging that proof of economic incapacity, i. e., impairment of earning capacity, as distinguished from physical disability, was necessary to a recovery for £a temporary total loss of the use of a hand, or a permanent partial loss of the use of that member.’ But the court, in holding that the injury was compensable under that part of Section 12 which is quoted in its opinion rather than under other provisions of the Act, rejected that contention and held in effect that proof of physical disability was sufficient. In stating that ‘in conference with the Supreme Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled,’ the Commission of Appeals was referring to cases which had held that injuries such as that involved in the Munday case were not compensable under Section 12. See> for example, Texas Employers’ Ins. Ass’n v. Price (Tex. Civ. App.), 300 S. W. 667 (writ dismissed 117 Texas 173, 300 S. W. 672). “A misunderstanding of the holding in the Munday case arose, as I appraised it, from this situation: The trial court had allowed Munday $20.00 a week for 15 weeks of temporary total loss of the use of his hand and $15.00 a week for 135 weeks of 75% loss of the use of the same hand. The Court of Civil Appeals reformed the judgment to allow recovery of $15.00 for 150 weeks. 26 S. W. (2d) 676. Now in fact, 60% of Munday’s average weekly wages exceeded $20.00. Counsel for both Mun-day and the Fidelity Union Casualty Company proceeded erroneously upon the assumption that $20.00 was the correct basic figure of which 75% should be taken in arriving at Munday’s compensation for the partial loss of the use of his hand. The court was not asked to say what the correct basic figure was, the arguments of the parties on file in the case do not raise the point, and it was not in any sense up for decision. Accordingly, the Munday case is not authority for the correctness of the construction of the statute urged by Glenn and the compensation carrier here. “The argument is advanced that under the Industrial Accident Board’s construction, two employees working side by side, with average, weekly wages of $75.00 each, might be injured in the same accident, one losing a hand entirely and the other suffering only a 45% incapacity to his hand, yet both would be compensated at the same rate. This is true, not because of any misinterpretation of the statute, but because the Act prescribes certain máximums of compensation above which payment will not be awarded no matter how high the wages go. Illustrative of this situation, let us suppose the same two workmen, each with an average weekly wage of $75.00, are injured in the same accident, one suffering a 50% and the other a 75% permanent partial incapacity. The weekly compensation of each shall be equal, under Section 11 of the Act, to ‘sixty per cent of the difference between his average weekly wage before the injury and his weekly wage earning capacity during the existence of such partial incapacity, but in no case more than $20.00 per week.’ The difference between the weekly wages of the first workman before the injury and afterwards is $37.50; in the case of the second workman, the difference is $56.25. Sixty per cent of each figure produces an amount in excess of $20.00, so under the Act both receive the same compensation, the $20.00 weekly maximum, although one is injured 50% more than the other. Associated Indemnity Corp. v. McGrew, 138 Texas 583, 160 S. W. (2d) 912. Like illustrations migh be drawn from the situation of two workmen totally and permanently incapacitated, one with a $50.00 and the other with a $100.00 average weekly wage. Both would receive the same compensation, the $20.00 weekly maximum for 401 weeks, although at the time of the accident one was making twice the wages of the other. Section 10, Article 8306.” We have carefully re-examined the' provisions of this law in the light of its history relating to the purposes sought to be accomplished by its enactment. The influential factors that-caused the adoption of this class of legislation are too well known to be repeated here. The plan is no longer an experiment and its principles are now embodied in our Workmen’s Compensation Law, which is considered one of our most useful laws. If it is to meet the conditions for which it was enacted, it must be construed in accordance with certain fundamental rules uniformly announced and applicable to such statutes. The trial court having followed the construction uniformly given this statute by the Industrial Accident Board, and the construction given the statute by the courts in the Ferguson case and other cases, which construction had received the approval of the legislature by the re-enactment of this statute unchanged in 1925, that court therefore applied the correct rule in fixing the amount recoverable in this case. The certified question is answered, “Yes.” Opinion delivered June 19, 1946. Rehearing overruled October 9, 1946. (NOTE: For the opinion of the Court of Civil Appeals upon receipt of this answer see 196 S. W. (2d) 1023.)
Mr. Justice Smedley, concurring. For two reasons, to be briefly stated, I concur in the affirmative answer to the question certified by the Court of Civil Appeals. The first reason is that this Court has never directly decided the question except by its refusal of the application for writ of error in Maryland Casualty Company v. Ferguson, 252 S. W. 854, and by that refusal the Court necessarily gave to the last paragraph, of Section 12 of Article 8306 the construction that the majority of the Court gives it in this cause. In the Ferguson case the average weekly wages of the employee were $86.00 and the percentage of permanent partial disability of his arm was 25%. He was awarded by the Board and by the trial court compensation of $12.90 per week. The insurer contended that the compensation should have been $3.75 per week, that is, 25% of $15.00, which was then the maximum weekly compensation instead of $20.00. The Court of Civil Appeals overruled the insurer’s contention and affirmed the trial court’s judgment. The three opinions of that court show disagreement among the members of the court, but there can be no mistake as to the conclusion and judgment to which all agreed. It was that the $15.00 per week used in the last paragraph of Section 21 of Article 5246 of Vernon’s Texas Civil Statutes Supp. 1918 (which, except in prescribing a maximum of $15.00 per week instead of $20.00 per week is the same as the last paragraph of Section 12 of Article 8306) fixed the maximum compensation and was not intended as a factor in computing the amount of the compensation. The application for writ of error filed in the Ferguson case by Maryland Casualty Company contained but three assignments of error, each of which complained that the Court of Civil Appeals erred in so construing the statute as to award the employee $12.90 instead of $3.75 per week. The contention was vigorously argued and no other contentions were presented. The Milam case was urged as an authority. The refusal of the application for writ of error in the Ferguson case was necessarily a decision of the very question certified in this case. -This Court did not, in its refusal of the application for writ of error in Western Indemnity Company v. Milam, 230 S. W. 825, pass upon the question presented in this case. Milam, who was appellee, contended by cross assignment in the Court of Civil Appeals that “the amount of compensation for partial disability should be determined by multiplying 60% of the average weekly wages by the percentage of disability, limiting the compensation to $15.00 per week.” The Court of Civil Appeals overruled the cross assignment of error and gave the statute the construction for which appellant contends herein. Application for writ of error was filed by Western Indemnity Company and it made no complaint as to the method of determining the amount of the weekly compensation. Milam filed no application for writ of error. The question in which we are interested herein was not presented to the Court in the Milam case by the application for the writ of error, and the refusal of the application for the writ of error, and the refusal of the application was not a decision of the question, although the Court of Civil Appeals had ruled upon it. At that time the statute had not been amended so as to provide that in all cases where the judgment of the Court of Civil Appeals is a correct one and where the principles of law are correctly determined, the Supreme Court shall refuse the application. See Acts Regular Session, 40th Legislature (1927) Chapter 144, pp. 214-215. The question presented herein was not decided by the Court in Fidelity Union Casualty Company v. Munday (Com. App.) 44 S. W. (2d) 926. In that case the employee suffered permanent partial loss of the use of his hand to the extent of 75%, and the trial court’s judgment awarded him compensation for that loss at the rate of $15.00 per week. The compensation must have been computed by the trial court according to the method advocated by appellant herein; otherwise he would have been awarded the maximum of $20.00. The opinion in the Munday case contains no discussion of the amount of the weekly payments awarded or of the method of calculating it. Apparently assuming the correctness of the amount awarded, the parties neither presented nor discussed the question in their briefs. The Court was not called upon to decide it. The opinion was devoted almost wholly to giving reasons for rejecting the insurer’s contention that no compensation could be recovered by Monday without an affirmative showing that incapacity for work resulted from the injury. Both Lumbermen’s Reciprocal Association v. Pollard (Com. App.) 10 S. W. (2d) 982, and Petroleum Casualty Company v. Seale, (Com. App.) 13 S. W. (2d) 364, held that compensation for permanent partial loss of the use of a member of the body, in the one case a hand and in the other a foot, was payable under Section 12 of Article 8306, and that for such loss the amount of weekly compensation to be paid the employee was 60% of his average weekly wages multiplied by the percentage of incapacity of the member. The question in the instant case was not reached in those cases because in both of them 60% of the average weekly wages was less than $20.00. My second reason for concurring in the affirmative answer to the certified question is that the answer conforms to the construction that has been given to the last paragraph of Section 12 of Article 8306 by the Industrial Accident Board. In the Glenn case, 144 Texas 378, 190 S. W. (2d) 805, proof was made by undisputed evidence that the Board since 1918 has given that construction to that part of Section 12 of Article 8306 in its administration of the workmen’s compensation law. The court may take judicial notice of the construction thus given to the law by the Board. Maryland Casualty Company v. Hendrick Memorial Hospital, 141 Texas 23, 28, 169 S. W. (2d) 969; Short v. W. T. Carter & Bro., 133 Texas 202, 211, 126 S. W. (2d) 953, and cases cited. In my opinion the meaning of the part of the statute under construction is not so plain and clear as to preclude resort to administrative construction. Appellant may perhaps be correct in its contention that the last sentence but one in Section 12 of Article 8306 is a mathematical formula and unambiguous, i the language of that sentence is to be taken literally and read without reference to other parts of the statute. But the question whether a particular part or sentence of a statute is ambiguous is not to be determined solely from that part or sentence. “An ambiguity justifying the interpretation of a statute is not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all of its provisions are examined.” 50 Am. Jur., p. 209, Sec. 226. The text quoted is well supported by the cited case. Coosaw Mining Company v. South Carolina, 144 U. S. 550, 561-563, 36 L. Ed. 537, 541-542. The rule is an application of the general principle thus stated by Sutherland: “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.” Sutherland’s Statutory Construction (3d ed.) Vol. 2, pp. 336-337, Sec. 4703. In Ellis County v. Thompson, 95 Texas 22, 32, 64 S. W. 927, the court said: “We cannot, however, consent to be confined to one section of the act in disregard of all other parts, even if the language were unambiguous.” (Emphasis added.) The general purpose of the compensation act is to measure the weekly compensation by the average weekly wages, paying the injured employee 60% of his average weekly wages. Sections 8, 10, 11 and 12 of Article 8306, in prescribing the weekly compensation to be paid, measure it by the average weekly wages. Whether wisely or not, the employee making large wages, is paid on account of his injury a greater compensation than is paid to the employee who makes small wages. The Act also fixes the maximum weekly compensation to be paid in any event at $20.00. No matter how great the employee’s average weekly wages may be, and no matter how severe his injury, the weekly payments to him are limited to $20.00. Repeatedly in the Act, in Sections 8, 10, 11 and 12 of Article 8306, the words “but not more than $20.00 per week,” “but in no case more than $20.00 per week” or “not exceeding $20.00 per week” are used to fix a maximum weekly compensation. Nowhere in the Act, unless it be in the last paragraph of Section 12, is $20.00 or any other arbitrary sum, introduced as a factor in measuring or calculating the amount of the weekly payments. When the words “but not to exceed $20.00 per week” are encountered in the sentence of Section -12 under construction, it is not unreasonable to assume that they are used, as they are used in all other parts of the Act, to prescribe the maximum weekly compensation that may be paid. If they are not so intended, then they perform a new and strange function, serving as a factor in calculating the amount of the weekly compensation, which in the first part of Section 12 and in all other sections of the Act is measured by 60% of the average weekly wages. When the words “but not to exceed $20.00 per week” are treated as a parenthetical expression intended to fix a maximum, all parts of the Act with respect to the amount of weekly compensation are harmonious, and the general plan of the Act to measure weekly compensation by the use of average weekly wages as the standard factor is followed throughout. The other construction, that for which appellant contends, is a departure from that general plan, and in many instances the use of that construction would reduce the weekly compensation far below what it would be if calculated by multplying 60% of the average wages by the percentage of incapacity. Under that construction an employee making very high weekly wages would often receive very small weekly compensation. For example, one making $90.00 per week and suffering an injury causing a 30% permanent loss of the use of an arm or leg would be paid, under appellant’s construction, 30% of $20.00, that is, $6.00 per week. Under the other construction, that approved by the affirmative answer to the question certified, he would be paid $16.20 per week. The argument is repeated in the briefs that an injustice would be done if the employee were paid for partial permanent loss of the use of a member as much as would be paid him for total permanent loss. This will occur when both 60% of the average weekly wages and 60% of the average weekly wages multiplied by the percentage of incapacity of the member equal or exceed $20.00. The argument that this is unjust is based upon an erroneous conception of the function' of the $20.00 maximum. It is not intended to pay the injured employee for his injury or afford him full compensation. It does not and cannot work equally. It is merely a maximum weekly payment fixed by the Legislature. The conclusion reasonably follows from what has been said and for other, reasons which are omitted in the interest of brevity, that the sentence in Section 12 to be construed in answering the certified question is of doubtful meaning or ambiguous. This being true, the construction followed for many years by the Industrial Accident Board in its administration of the Act is entitled to the highest respect and should be given controlling weight. The position is taken in the dissenting opinion filed herein by Associate Justice Folley, that the last paragraph of Section 12 has no application to this case and that the decision of the question presented is controlled by preceding paragraphs of Section 12. On that premise that opinion should have been a concurring opinion rather than a dissent. Throughout all of the first part of Section 12 the weekly compensation is measured by 60% of the average weekly wages, and in that part of the section there is no mention of $20.00 except as the maximum weekly payment. It is only in a literal construction of the last sentence but one of Section 12 that authority can be found in the Act for using the $20.00 as a factor in measuring the weekly compensation. Appellant relies upon that sentence for a negative answer to the certified question. The certificate from the Court of Civil Appeals calls for a construction of that sentence. The question certified should be answered. Opinion delivered June 19, 1946.
Mr. Justice Folley, dissenting. I do not agree with the majority that the question certified should be answered in the affirmative, nor that the last paragraph of section 12 of article 8306 has any application in this case. On the contrary, I think that it has been definitely settled by prior decisions of this court that the question here involved is not controlled by that paragraph at all but by four other paragraphs of that section. They are as follows: “For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elswhere herein provided, a weekly compensation equal to sixty per cent of the average weekly wages of such employee, but not less than $7.00 per week nor exceeding $20.00 per week, for the respective periods stated herein, to-wit: “For the loss of a leg at or above the knee, sixty per cent of the average weekly wages during two hundred weeks. “In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member. * * * “In all cases of, permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases.” It must be kept in mind that we are dealing with a specific injury to claimant’s leg which resulted in his total incapacity for 8 weeks, followed by a permanent partial loss of the use of the leg of 35 per cent. It was agreed that the compensation period is 200 weeks, which, incidentally, conforms to the period fixed in the second paragraph above quoted for the loss of the leg, and not to the maximum of 300 weeks provided in the last paragraph of section 12. His average weekly wages were $95.24. The trial court found that claimant was entitled to 8 weeks of compensation at the rate of $20.00 per week for the total loss of the use of his leg and 192 weeks of compensation at the rate of $20.00 per week for the 35 per cent, permanent partial loss of his leg. The question presented is whether the trial court correctly calculated the compensation for the partial loss of the use of his leg. It will be noted that section 12 embraces nineteen specific injuries, followed by 5 concurrent specific injuries, each of which prescribes a definite number of weeks for the compensation period. All of these- specified injuries I think are governed not by the last paragraph of section 12, but by the first paragraph thereof and such intervening paragraphs as become pertinent from the nature of the injury. However, it being practically impossible to forecast and include every conceivable injury of similar nature which might arise in the course of employment, the legislature no doubt added the last paragraph of section 12 in order to provide some reasonable compensation for such other injuries, less than general, as might occur but which were not included in the previous paragraph of the section. Such paragraph is as follows: “In all other cases of partial incapacity, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee, compensation shall be determined according to the percentage of incapacity, taking into account among other things any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employee, and the age at the time of injury. The compensation paid therefor shall be sixty per cent of the average weekly wages of the employees but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine. Whenever the weekly payments under this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the board.” It is evident from the reference to “all other cases of partial incapacity” in the opening words of the paragraph that its application is limited to those injuries not theretofore mentioned, which includes “any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee.” For the injuries thus included, but not specified by name, it is provided that the compensation shall be determined according to the percentage of incapacity and that in determining the same the board may take into account, among other things, “any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employee, and the age at the time of injury.” Consequently, in determining the compensation for these “other cases of partial incapacity,” certain factors are to be considered which are immaterial in determining the compensation for the injuries specified in other paragraphs of section 12. In other words, for such injuries as the loss of a leg or arm, or the loss of the use thereof, whether total or partial, as well as any other injury specified' in the section, the compensation does not depend upon, nor is it affected by, any of the factors mentioned in the last paragraph, but the compensation remains the same for a definite term irrespective of these elements. The last paragraph further provides that the compensation shall be “sixty per cent of the average weekly wages of the employee but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine.” (Italics supplied.) The compensation period so provided is not of a fixed and rigid duration as that for the injuries theretofore specified in the section, but is one of flexible and changing duration as the facts in each case may justify, ranging from none to a maximum of 300 weeks, which not only allows a greater period than that specified for the single injuries theretofore enumerated, but places a discretion in the board which it does not have with reference to the injuries specified. It is also provided that whenever “the weekly payments under this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the board”, which again segregates and differentiates this paragraph from any of the others which precede it. (Emphasis again supplied.) It is therefore obvious that the last paragraph of section 12 is an independent provision intended to apply only to such cases of partial incapacity as are not specified in other portions of the section. If I may be permitted to speculate, when we have some injury less than general, such as the amputation of an ear or a nose, or where some similar injury or disfigurement not specified in the section impairs the future usefulness or occupational opportunities of an employee, then, and not until then, will the last paragraph of section 12 become pertinent. . That the injury here involved is not governed by the last paragraph of the section, but by previous paragraphs thereof, is no longer an open question in this state. This has been definitely settled by decisions which have the express or implied approval of this court, and all of which involve the same character of injury with which we are presently dealing. Lumbermen’s Reciprocal Ass’n. v. Pollard, Tex. Com. App., 10 S. W. (2d) 982; Petroleum Casualty Co. v. Seale, Tex. Com. App., 13 S. W. (2d) 364; Texas Employers’ Ins. Ass’n. v. Maledon, Tex. Com. App., 27 S. W. (2d) 151; Fidelity Union Casualty Co. v. Munday, Tex. Com. App., 44 S. W. (2d) 926. In the Pollard case the claimant suffered 75 per cent, disability of his right hand and. 65 per cent, disability of his right arm, each of which was permanent. The trial court rendered judgment for both injuries, the first covering 150 weeks and the second 50 weeks. The court of civil appeals held that since the claimant had lost neither hand nor arm, nor suffered the total loss of the use of either, the recovery could not be had under the specific injury provision of the statute, but should be governed by the last paragraph of section 12, as the majority opinion concludes in the instant case. The defendant insurance company contended that the compensation should have been fixed under the provisions of section 11 of article 8306. The Commission of Appeals held that neither contention was correct, but that the injury came under “next to the last paragraph of section 12 of article 8306,” and quoted the same. Since the use of the plaintiff’s arm was. only impaired by reason of the injury to his hand, both of the judgments of the lower courts were reformed so as to allow a recovery for 75 per cent, of 60 per cent, of his average weekly wages for 150 weeks, which period of compensation was that fixed for the loss of a hand in the specific injury portions of section 12. In the Seale case the claimant received an injury to his right foot resulting in permanent partial loss of the use thereof of 85 per cent. From the opinion of the Commission of Appeals and that of the Court of Civil Appeals, 4 S. W. (2d) 90, 91, it appears that the claimant was awarded judgment in the trial court “for 60 per cent, of his average weekly wages for 300 weeks, as in compliance with the last paragraph of section 12 of R. S. 1925, art. 8306.” The following significant language is found in the opinion of the Court of Civil Appeals in that case: “We think the pleadings and evidence thus outlined definitely and plainly take this case out of the class of ‘specific injuries’ scheduled in section 12, where appellant contends it alone should go, and bring it squarely within the ‘other cases of partial incapacity,’ as classified by the Commission of Appeals in the Moreno Case, supra, and for which the maximum period of 300 weeks’ compensation is prescribed in the last paragraph of that section.” The theory thus expressed is identical with that of the majority opinion in this case with reference to the application of the last paragraph of section 12. With that thought in mind let us examine the opinion of the Commission of Appeals when the Seale case reached this court. From it we quote: “We do not think the trial court submitted the issue made by the pleadings in this case. Most favorably construed, defendant in error’s petition alleged only an injury to the foot. Having set out no other injury, the allegation that his injuries were permanent is referable to the specific injury alleged. * * * “Under the pleadings, the court should have submitted separately the issues as to the duration and extent of defendant in error’s injury to the specific member alleged, and also directed the jury to determine the percentage of incapacity sustained by reason of the injury to the foot, and in entering judgment should have awarded compensation under section 12 of the Workmen’s Compensation Act (Rev. St. 1925, art. 8306, sec. 12). “Under the pleadings, defendant in error was entitled to be compensated for a permanent partial incapacity to his foot. If the issue thus made by the pleadings had been properly submitted to the jury and a finding returned that the injury was partial and permanent, and the percentage of incapacity had been found, defendant in error would have been entitled to have received a sum equal to the percentage so found, multiplied by 60 per cent, of his average weekly wages for a period of 125 weeks. “The manifest injustice of the rule contended for by defendant in error is made apparent by the recovery permitted in this case. If one of his colaborers had been injured at the same time defendant in error received his injury, which had resulted in the amputation of his foot, or in the complete loss of the use thereof, the recovery would have been confined under the plain provisions of section 12 of the act, to 60 per cent, of his average weekly wages for a period of 125 weeks, while defendant in error, who suffered a lesser injury, was allowed the same amount of compensation for a period of 300 weeks. In other words, he has been allowed more than twice as much compensation for a permanent partial incapacity to his foot as his colaborer could have been allowed for the complete loss of the use of his foot. We do not think, when the act is considered as a whole, that we are justified in imputing to the Legislature an intention to work such an injustice and inequality upon those entitled to receive benefits under the act.” The opinion in the Seale case stated that the court was following the rule laid down in the Pollard case and recommended that both judgments of the courts below be reversed and the cause remanded for trial “not inconsistent with the views herein expressed,” and the Supreme Court not only followed the recommendation of the Commission of Appeals but expressly approved “the holding of the Commission of Appeals on the questions discussed in its opinion.” Therefore, this court has affirmatively committed itself to the proposition that the last paragraph of section 12 has no application to the kind of injury we now have under consideration. In the Maledon case the claimant sustained the total loss of the use of his hand for 20 weeks which was followed by a permanent partial incapacity to the extent of 40 per cent. It was agreed in the trial court that the compensation rate was $13.85, which was 60 per cent, of his average weekly wages, and, further, that he was not entitled to compensation for the first week of disability under the then existing law. The recovery in the trial court was for 19 weeks at $13.85 for the total incapacity, and 40 per cent, of the compensation rate, or $5.54, for the permanent partial incapacity for a period of 131 weeks, the remainder of the period specified in section 12 for the loss of a hand. The court of civil appeals reached the conclusion that under sections 10, 11 and 12 of article 8306, and with particular reference to the last paragraph of section 12, the claimant was entitled to $5.54 for 300 weeks for his partial incapacity, and reformed the judgment of the trial court and rendered judgment in keeping with its opinion in that respect. 11 S. W. (2d) 627. When the case reached this court the Commission of Appeals held that the claim was governed by the following portions of section 12: (1) The first paragraph of section 12; (2) the paragraph of such section specifying compensation of 60 per cent, of the average weekly wages during 150 weeks for the loss of a hand; and (3) next to the last paragraph of section 12. In keeping therewith the court reversed the judgment of the court of civil appeals and affirmed that of the trial court. That decision was expressly predicated upon the Pollard and the Seale cases. In the Munday case the claimant sustained the total loss of the use of his right hand for a period of 15 weeks which was followed by permanent partial loss of the use of his right hand to the extent of 75 per cent.' His wages were $10.00 per day. The trial court entered judgment for weekly compensation at the rate of $20.00 per week for 15 weeks for the total loss of the use of the hand and $15.00 per week for the 135 succeeding weeks of partial loss of its use, which was 75 per cent, of the amount allowed for the total loss of its use. That recovery was affirmed by the Commission of Appeals. It was held that the compensation for temporary total loss of the use of a member came under the same provisions of section 12 as that for permanent partial loss of the member, and for the same reasons announced in the Pollard, Seale and Maledon cases. The contention was made that nowhere in the workmen’s compensation law is the temporary total loss of the use of a hand, or a permanent partial loss of the use of that member, made compensable in the absence of an affirmative showing of the fact that incapacity for work, of some degree or duration, resulted therefrom. That contention was overruled. The opinion quoted portions of section 12, not including the last paragraph, and then stated: “With regard to a permanent partial loss of the use of a hand, it has been repeatedly held, in effect that such a loss comes within the purview of the above provisions and that payment of compensation each week, as there provided, is required to be made in the proportion that the use of the hand is permanently lost. Petroleum Casualty Co. v. Seale (Tex. Com. App.) 13 S. W. (2d) 364; Lumbermen’s Reciprocal Ass’n. v. Pollard (Tex. Com. App.) 10 S. W. (2d) 982; Texas Employers’ Ass’n. v. Maledon (Tex. Com. App.) 27 S. W. (2d) 151. That holding was expressly approved by the Supreme Court in the Seale Case, and impliedly approved in the other two. In conference with the Supreme Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled.” (Emphasis mine.) From the language quoted we need not speculate as to what cases were intended to be overruled by the Supreme Court in the Munday case. The refusal of the writ of error by this court in Great American Indemnity Co. v. Stultz, 56 S. W. (2d) 200, furnishes the answer. In that case the claimant suffered the total loss of the use of his eye for 4 weeks which was followed by its permanent partial incapacity of 25 per cent: He contended that he was entitled to “compensation under the specific injury statute” for 300 weeks. The court of civil appeals overruled his contention and limited him to the period of 100 weeks specified in section 12 for the loss of an eye. The decision was based upon the Munday case and the opinion stated that if there was anything to the contrary in Travelers’ Ins. Co. v. Richmond, Tex. Com. App., 291 S. W. 1085, that it had been overruled by the Munday case. The Richmond case, like the majority opinion in this case, held that compensation for the partial loss of a member was governed by the last paragraph of section 12. The Stultz case expressly disapproved the Richmond case and refused to follow it. Thus, by refusal of the writ of error in the Stultz case, this court again expressly approved the principle that compensation for injuries like the one here involved is governed by the antecedent paragraphs of section 12, and repudiated the theory that the last paragraph has any application. In the Pollard, Seale, Maledon and Munday cases the employee sustained an injury to a specific member of his body resulting in permanent partial loss of the use of such member, which is precisely the situation in this case. In the Maledon and Munday cases the period of permanent partial incapacity was preceded by the total loss of the use of the member. For such total or partial loss these cases definitely decide that we must look not to the last