The opinion
On Motion for Rehearing.
The motion for rehearing calls our attention to that part of article 5246—44, Vernon’s Ann. Civ. St. Supp. 1918, providing:
“That whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the' provisions of this act, and the suit of the injured employé or person suing on account of the death of such em-ployé shall be against the association if the employer of such injured or deceased employé at the time of such injury or death was a subscriber as defined in this act. If the final order of the board is against the association then the association and not the employer shall bring suit to set aside said final ruling and decision of the board, if it so desires, and the court shall in either event determine the issues in such cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation. In case of recovery the same shall not exceed the maximum compensation allowed under the provisions of this act.”
It is urged that by tbe language here used is meant that all the powers conferred upon the board by the general terms of the act are vested in the trial court to determine the issues in such cause, instead of again appealing to the board for relief. The trial is de novo before the court. So accepting that construction of the statute we shall not remind the ease. '
The statute seems to have been an attempt to provide a full and complete remedy whereby all matters arising under the provisions of the Workmen’s Compensation Law may be speedily settled. Such suits as this seem to be classed in the nature of appeals from the action of the board, and' the trial court is authorized to pass upon them de novo, so as to grant all the relief contemplated by the statute that should be granted in response to the findings of the jury. As jtve have construed the statute, the court was not permitted to decree a lump sum judgment, but; under the finding of the jury, was required to provide for weekly installments.
Taking the view that the trial court erred in decreeing a. lump sum judgment in lieu of weekly payments, we will here correct that error. The judgment, among other things, provides:
“The court is of the opinion that under the answers to the special issues and under the evidence the plaintiff is entitled to recover from the defendant compensation for total incapacity for a period of 200 weeks at the rate of $8.65 per week, totaling $1,730, and that plaintiff is also entitled to recover' compensation for 50 per cent, permanent disability in the use of his left arm for 200 weeks at the rate of $4.32 per week, totaling $864.”
The motion for a rehearing is granted, and the judgment will be here reversed and reformed, so that/appellee shall recover against appellant compensation for 200 weeks from June 10, 1922, at the rate of $8.65 per week and for 200 weeks thereafter at the rate of $4.32 per week.
In all other respects the judgment is affirmed.
Reformed and affirmed.
On Second Motion for Rehearing.
It is at the earnest insistence of appellant that we file a short reply in writing to the motion for a rehearing. Appellant is in error in asserting, inferentially or otherwise, that we did not consider all the assignments of error raised by him.
The writer of this opinion is impressed with the idea that but little good results from lengthy opinions, or in discussing issues often not necessary to a decision of the case, as it would be a useless waste of time to write a thesis on the subject in hand; rather than “to stop when finished.”
Though invited to write at length on the subject of the Workmen’s Compensation Law, we shall do so only in a limited way, and write on what seems the “soul” of appellant’s contention, without any attempt at rhetorical display or useless words of elaboration. We will attempt to answer appellant’s contention, that it was error to allow compensation for a period of total disability, and, when that perio^L ceases, to allow compensation for the specific injury to appellee, insisting that the partial loss of the use of a specific member does not constitute a specific injury under the Compensation Act.
It is provided, under article 5246 — 21 (V. St.), if injuries result in concurrent inca- *286 pacities, then, as long as either incapacity exists, the employé is entitled, to compensation therefor, ahd that the compensation for specific injuries is cumulative as to time and not concurrent. The previous section provides for the compensation of total disability.
In order to understand what provision is made to meet the exigencies of each case we must construe the law as a whole, and thus give to it the most liberal construction favorable to promote justice to the injured party. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103 , 246 S. W. 74 . It must be given the effect that it was the intent and purpose of the law to allow compensation for total disability, as long as total disability existed, together with compensation for any partial disability that might exist. S@ then, claiming compensation for subsequent partial disability, he has the privilege of taking under the general provisions giving compensation for partial disability to work, or of taking under the provisions of the article granting compensation for specific injuries to particular members of the body, if the injury happens to come under one of the specific injuries enumerated, provided he cannot recover 'under the general provision for partial incapacity to work, and at the same time recover for the partial incapacity of a specific member, for the statute provides the recovery for the specific member’s incapacity shall be in lieu of such other recovery.
It will be observed, in the last paragraph of article 5246 — 21, that in other cases where the incapacity is partial, and not total, “compensation shall be determined according to the percentage of incapacity.”
Clearly, the statute authorizes allowance of compensation when the use of a member is permanently impaired, though the impairment be not total. The damages should be computed by determining the percentage of permanent impairment. Maryland Casualty Co. v. Ferguson (Tex. Civ. App.) 252 S. W. 854 ; Millers’ Indemnity Underwriters v. Cahill (Tex. Civ. App.) 257 S. W. 957 .
There is no double recovery allowed in this case. Appellant’s motion for a rehearing is overruled.