ability arose through injury to a leg and loss of the use thereof, and even under circumstances which would suggest the wisdom of amputation, would not of itself limit liability to the scheduled 120 weeks, if, growing out of such injury and due to diseased and infected tissue and bone, general disability followed and the employee thus became totally and permanently disabled from performing any work for which he was fitted. For cases where there was an allowance of compensation beyond that fixed by the schedule for loss or injury to limb or member, or for compensation resulting through injury to member, see: Fern Gold Mining Co. v. Murphy, 9 Cir., 7 F.2d 613; Saddlemire v. American Bridge Co., 94 Conn. 618, 110 A. 63; Wilson v. Union Indemnity Co., La. App., 150 So. 309; Lumbermen's Reciprocal Association v. Anders et al., Tex.Civ.App., 292 S.W. 265; Bell v. Employers' Liability Assurance Corporation, La. App., 152 So. 766; United States Fidelity Guaranty Co. v. Brandon, Tex.Civ.App. 31 S.W.2d 846; and Key v. Briar Hill Collieries, 167 Tenn. 229, 68 S.W.2d 115; Morlet v. Maus, La. App., 170 So. 392, 393. Finding no error, the judgment allowing compensation for total and permanent disability is affirmed, and, it is so ordered.
The trial Court in computing the amount of compensation due the employe, on basis of partial permanent disability as a whole man, followed the law. Code 1923, ยง 7551 (a) (c); Tuscaloosa Compress Co. v. Hogood, 229 Ala. 284, 156 So. 633; Alabama By-Products Co. v. Winters, 234 Ala. 566, 176 So. 183; Consolidated Coal Co. v. Crislip, 217 Ky. 371, 289 S.W. 270; United States Fidelity G. Co. v. Brandon, Tex.Civ.App., 31 S.W.2d 846; Kentucky Distilleries Warehouse Co. v. James, 205 Ky. 185, 265 S.W. 629; Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 91; Smith v. Kedney Warehouse Co., 197 Minn. 558, 267 N.W. 478, 269 N.W. 633; Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 299 S.W. 1056, 2 S.W.2d 89; 71 C.J. 818, ยง 538, note 57 (b); Equitable L. A. Soc. v. Davis, 231 Ala. 261, 164 So. 86. Review on certiorari in compensation case is limited to determination whether there is any legal evidence to support findings of fact and conclusions of trial court. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345; Benoit Coal Min. Co. v. Moore, 215 Ala. 220, 109 So. 878; Summit Coal Co. v. Walker, 214 Ala. 332, 107 So. 905; Trannon v. Sloss-S. S. I. Co., 233 Ala. 312, 171 So. 898; Ex parte Smith Lumber Co., 206 Ala. 485, 90 So. 807; Hearn v. United States Cast Iron Pipe Co., 217 Ala. 352, 116 So. 365; Republic I. S. Co. v. Ingle, 223
Relator, in addition to the Lund and Albert Lea Packing Co. cases, supra, contends that the following from other jurisdictions justify a finding of permanent total disability from the loss of the use of a leg. American Employers Ins. Co. v. Haygood, 48 Ga. App. 663, 173 S.E. 377; Yarbrough v. Great American Ind. Co. (La.App.) 159 So. 438; White Oak Refining Co. v. Whitehead, 164 Okla. 57, 22 P.2d 910; United States Fidelity Guaranty Co. v. Brandon (Tex.Civ.App.) 31 S.W.2d 846; Knobbe v. Industrial Comm. 208 Wis. 185, 242 N.W. 501, and other cases therein noted. In the Georgia case the fact was that the injury to the employe's leg might be removed by amputation, but on account of age and diabetic condition the operation was too dangerous, and a finding that the injury had produced a complete loss of function of the left leg and was attended by general bodily symptoms, and that the accident was an active factor in producing total incapacity was sustained.
While we think the charge is a little awkward, still we do not believe that it was calculated to impress the jury in the manner complained of. As worded, when considered in the light of the preceding issues, it simply, in effect, asked the jury if the injuries they had already found Russell sustained on June 20, 1932, constituted permanent injuries. In our opinion, the jury could not have understood the charge in any other light. Commercial Standard Insurance Co. v. Walls (Ct. Civ. App.), 56 S.W.2d 244; Columbia Casualty Co. v. Kee (Ct. Civ. App.), 11 S.W.2d 529; Texas Employers' Ins. Assn. v. Beckworth (Ct. Civ. App. Writ dismissed W. O. J.), 42 S.W.2d 827; United States Fidelity Guaranty Co. v. Brandon (Ct. Civ. App.), 31 S.W.2d 846; Employers' Liability Assur. Corp. v. Williams (Ct. Civ. App.), 293 S.W. 210. We have carefully examined the brief of the Indemnity Company in the Court of Civil Appeals, and in our opinion it presents no other assignment that will call for a reversal of this case.
Federal Surety Co. v. Cook, 1930, 119 Tex. 89, 24 S.W.2d 394. See also Union Indemnity Co. v. Drake, Tex.Civ.App., 42 S.W.2d 839, writ ref.; United States Fidelity & Guaranty Co. v. Brandon, Tex.Civ.App., 31 S.W.2d 846; Globe Indemnity Co. v. McClurg, Tex.Civ.App., 38 S.W.2d 125, error dism.; Pate v. Security Union Ins. Co., Tex.Civ.App., 54 S.W.2d 355. Judgment of the trial court affirmed.
The court itself, in effect, told the jury the same things, in so conditioning any answers at all to the succeeding inquiries upon their having answered issue No. 1 "We do", and in advising them that they were to be guided by the law as given them by the court; that merely informing the jury of something they already know in such instances as here occurred is not reversible error has been firmly established. Galveston, H. S. A. Ry. Co. v. Harling, Tex.Com.App., 260 S.W. 1016; Galbraith-Foxworth Co v. Gerneth, Tex. Civ. App. 66 S.W.2d 471, writ of error dismissed; C. H. Hahl Co. v. Burch, Tex. Civ. App. 74 S.W.2d 1040, writ dismissed; Insurance Co. v. Couch, Tex. Civ. App. 290 S.W. 274, writ dismissed; Oilmen's Reciprocal Ass'n v. Hayes, Tex. Civ. App. 295 S.W. 675, writ dismissed; Prim v. Farmers' Bank, Tex. Civ. App. 28 S.W.2d 941; Id., Tex.Com.App., 44 S.W.2d 943; United States F. G. Co. v. Brandon, Tex. Civ. App. 31 S.W.2d 846; Hall v. Henry, Tex. Civ. App. 239 S.W. 1015; Thornton v. Athens Bank, Tex. Civ. App. 252 S.W. 278; Payne v. McIntyre, Tex. Civ. App. 263 S.W. 1100. As further concerns counsel's statement, that the burden was so on appellant, the record here shows that, upon objection being made thereto, both the court and the counsel who made it, promptly instructed the jury to disregard that argument; wherefore, even had it been improper, it was clearly harmless.
The rule is that where an employee receives a specific injury, such as, for example, the loss of the use of a leg, but, because of or as a result thereof such injury spreads to other parts of the body and produces a greater or more prolonged incapacity than that naturally resulting from the specific injury, the employee is entitled to compensation as for a general, rather than the specific, injury, according to the degree and duration of the incapacity. Standard Accident Ins. Co. v. Williams, Tex.Com.App., 14 S.W.2d 1015; United States Fidelity Guaranty Co. v. Brandon, Tex. Civ. App. 31 S.W.2d 846; Traders General Ins. Co. v. Nunley, Tex. Civ. App. 82 S.W.2d 715. In this case the plaintiff, although alleging specific injury to the leg, set up other facts, which, established by the findings of the jury, entitled him to judgment for the maximum provided in ยง 10 of Art. 8306, for general injuries.