
    MARYLAND CASUALTY CO. v. HAM.
    (No. 2363.)
    Court of Civil Appeals of Texas. El Paso.
    Oct. 10, 1929.
    Kemp & Nagle, of El Paso, for appellant. Thomas B. Ridgell, of Breckenridge, and J. A. Moore, of Big Lake, for appellee.
   HIGGINS, J.

This is a suit to set aside an award of the industrial accident board in favor of appellee, Ham, an employee of Group No. 1 Oil Corporation; appellant being the insurance carrier.

In addition to the usual allegations in suc-h actions the appellee set up the following:

On March 21, 1928, in the course of his employment, while washing and cleaning a tánk preparatory to painting same, lie was injured by burning gasoline accidentally ignited; bis left arm and band and left leg were so severely burned tbat tbe use of same for labor bas been permanently lost, and be bas been totally and permanently incapacitated for labor. He alleged: “He was employed by said Group 1, Oil Corporation, as a laborer during tbe period of and for several wefeks prior to tbe date of said injuries on March 21,1928, and worked in sueb employment and‘capacity for seven days each week at a wage of Five Dollars per day and tbat bis actual weekly wage was as defined in said act about Eighteen Hundred and Twenty Dollars.”

He testified: “I worked 7 days a week at tbe rate of $5.00 a day. I guess I was hired to work 7 days because I worked 7 days and everybody else did. I worked 7 days a week under contract of hire and I understood I was hired for tbat purpose — to work 7 days a week.”

All issues submitted were found in favor of appellee and judgment rendered in bis favor for “the sum of Five Thousand Four Hundred and Twenty One Dollars and Thirty one cents ($5,421.31), tbe said judgment being tbe amount due in lump sum after allowing tbe legal discount on tbe sum of Seventeen Dollars and thirty-one cents for Four hundred weeks and further after allowing a credit of One Hundred and Fifty Five Dollars and Seventy Nine Cents, which bas heretofore been paid by tbe Maryland Casualty Company to defendant George Ham.”

It will be observed tbe legal rate of discount was allowed in determining tbe amount of tbe lump sum due.

In tbe present case authority, if any, to award a lump sum in settlement is under section 15, of article 8306, Rev. St. 1925. In tbe recent case of Herzing v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 17 S.W.(2d) 1046, Judge Nickels said: “In cases governed entirely by section 15, ‘present value’ of ‘weekly payments’ is to be fixed on evidence; and there is lacking inexorable requirement tbat tbe ‘legal rate of interest’ be applied in measure of ‘discount.’ Ibid.; Consolidated Underwriters v. Saxon (Tex. Civ. App.) 250 S. W. 447; Id. (Tex. Com. App.) 265 S. W. 143.”

See, also, Petroleum Casualty Co. v. Bristow, 21 S.W.(2d) 9, this day decided by this court, opinion by Justice Walthall, in which it is held tbe present value of weekly payments under section 15 is to be fixed on evidence and tbe proper rate of discount is a question of fact.

In tbe present case appellant assigns as error tbat there is neither evidence of tbe rate of discount which should be allowed for lump sum settlement, nor any finding of tbe jury thereon.

Under tbe authority of tbe cases cited above this is well taken.

This is tbe only matter which requires reversal, but we will briefly indicate our views upon the other questions presented in appellant’s brief.

Certain propositions question any right of recovery by appellee because tbe pleading and evidence show a contract of employment to work seven days a week, and tbe evidence shows appellee was obligated to and systematically worked on Sunday without any evidence. of necessity therefor, wherefore tbe employment was in violation.of article 283, Penal Code 1925.

Appellee was injured on Wednesday. He was therefore not working in violation of the Sunday law at tbe time be was injured. As we view tbe. matter tbe contract of employment pleaded was invalid to tbe extent only tbat it obligated appellee to work on Sunday.. In so far as it related to tbe other days, it was valid, and, since tbe evidence shows be was injured while ■ working on Wednesday, wé are of the opinion tbe Sunday law bas no present application.

■' Tbe court’s definition of “total incapacity for work” was correct. Employers, etc., v. Williams (Tex. Civ. App.) 293 S. W. 210; Texas, etc., v. Wonderley (Tex. Civ. App.) 16 S.W.(2d) 386; U. S., etc., v. Weir (Tex. Civ. App.) 286 S. W. 565.

Such definition bas been approved several times, and we do not regard it as subject to any of tbe objections urged against it.

Tbe other assignments and propositions present tbe contention tbat tbe pleadings. and evidence of appellee are insufficient to raise the issue of total permanent incapacity and insufficient to support tbe finding in appellee’s favor upon tbat issue.

Appellee pleaded:

'“Defendant shows to the court that by reason of said burns while so working for said Group 1 Oil Corporation tbat tbe left band and arm was 'burned until tbe band and fingers were and are still and tbe use of said band and fingers is lost and tbat tbe total permanent use, of said arm and fingers for work and labor is lost and that tbe left leg was severely and deeply burned until tbe use of same, for labor is total — permanently lost.

“Defendant alleges that as a result of said injuries and accident to bis arm and to his leg he is permanently totally incapacitated and disabled:

“That on account of said injuries this plaintiff will never again be able to follow bis usual and only avocation and tbat of common laborer and on account of tbe nature of said burns to bis arm and band and bis leg aforesaid and on account of tbe effect and result of said burn this plaintiff is permanently totally incapacitated and disabled to follow bis avocation and do and perform tbe only labor and duties be understands and knows or to perform his usual labor and avocation.

“Defendant shows prior to tbe time of said accident and injuries be was a strong and robust man in good health and was capable of doing and did do and perform bard manual labor. That since the date of said injuries his physique has been undermined and weakened, that he has suffered continual ill health and pain as a result of said injuries and that as a result of said injuries his earning power is practically nothing and that he is permanently totally incapacitated.”

In view of retrial the evidence upon the issue will not be discussed further than to say it supports the allegations quoted.

The case made by the pleadings and evidence falls within the ruling in the following cases: Texas, etc., v. Moreno (Tex. Com. App.) 277 S. W. 84; Security, etc., v. Frederick (Tex. Civ. App.) 295 S. W. 301; Oilmen’s, etc., v. Youngblood (Tex. Civ. App.) 297 S. W. 255 ; Security, etc., v. Roberts (Tex. Civ. App.) 298 S. W. 164; Texas v. Davies (Tex. Civ. App.) 6 S.W. (2d) 792; Southern Surety Co. v. LaCoste (Tex. Civ. App.) 7 S.W. (2d) 197; Norwich, etc., v. Wilson (Tex. Civ. App.) 17 S.W. (2d) 68.

The Seale Case (Tex. Com. App.) 13 S.W. (2d) 364,-has no application, for in that case only an injury to a foot was alleged and proven.

The assignments and propositions upon this phase of the case are overruled.

Reversed and remanded.  