Texas Employers' Insurance v. Holmes

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

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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

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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

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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

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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 Sec

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tion 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.