Opinion
No. A-922.
Decided June 12, 1946.
Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.
This is an action brought under the Workmen's compensation statute by W.R. Godwin against the Texas Employers' Insurance Association to set aside an award made by the Industrial Accident Board and to recover for injuries to the second finger of his right hand and to his right arm. In his petition he alleged that while in the course of his employment with Robert E. McKee, a general contractor of Dallas County, he was helping in the operation of a power driven saw and while moving lumber the second finger of his right hand was caught in said saw, tearing, pulling and lacerating it and so injuring the muscular attachments thereto that the injury spread to and infecting his right hand and arm, for which he claims total incapacity for the use of right hand and arm. A judgment in favor of plaintiff was reversed and rendered by the Court of Civil Appeals, 194 S.W.2d 593, and the association has brought error to the Supreme Court.
Judgment of Court of Civil Appeals is reversed and the cause is remanded to the trial court.
Robertson, Leachman, Payne, Gardere Lancaster, of Dallas, for respondent.
White Yarbrough and W.E. Johnson, all of Dallas, for petitioner.
This case is before this court on application for writ of error filed on behalf of W.R. Godwin. It is a suit for compensation on account of a wound sustained originally to Godwin's third or distal phalange of the second finger of his right hand. In the trial court compensation was sought and awarded for the loss of the use of other members resulting from, and growing out of the original wound to his finger. There was no issue submitted to the jury and, therefore, no finding that the original injury extended to and affected other portions of the body or that such injury was not confined solely to the finger. By objections to the charge and requests for special issues, as reflected in the opinion of the Court of Civil Appeals, respondent preserved the question for review on appeal. There was some evidence that such injury did spread to other members.
The Court of Civil Appeals correctly held that, for the error above indicated, the judgment of the trial court should be reversed, but it fell into error in rendering judgment that petitioner take nothing except compensation for the loss of the use of the particular phalange which sustained the wound. The case should have been remanded generally to the trial court. The order of the court rendering the case rather than remanding same is in conflict with Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463.
By Art. 1728, V.C.S. and Rule 483 this court is authorized to reverse and remand a case on the application for writ of error without the necessity of granting the writ and hearing the case when the decision of the Court of Civil Appeals is in conflict with a previous opinion of this court. That authority has heretofore been exercised. Casstevens v. Texas P.R. Co., 119 Tex. 456, 32 S.W.2d 637, 73 A.L.R. 89; Adams v. Bida, 125 Tex. 458, 84 S.W.2d 693; Simpson, et al v. Charity Benevolent Association, 137 Tex. 215, 152 S.W.2d 1093.
It appears that this is another proper case for its exercise and it is therefore ordered that the judgment of the Court of Civil Appeals, in so far as it reformed the trial court's judgment and rendered judgment against petitioner, be reversed and the cause remanded to the trial court.
Opinion delivered June 12, 1946.