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In a Workmens Compensation case the employee recovered judgment for total and permanent disability and the insurance carrier appealed. Appellants first point is that the court erred in rendering such judgment because the evidence was insufficient to support the finding that Moran was totally and permanently incapacitated. Its second point is that "the court erred in rendering judgment for plaintiff, because the jurys finding of total and permanent incapacity to labor was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust." (It has been said that said points are materially different. Houston Printing Co. v. Jones, Tex.Civ.App., 282 S.W. 854, 857, W.D. See also In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660, 662; 30 Tex.Law Rev. 803, 809; Shaw v. Centerfield Oil Co., Tex.Civ.App., 10 S.W.2d 144, 146; Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439, 441, 14 S.W. 779. However, that question is not presented and we do not decide it). The trial court defined total incapacity as follows: "The term total incapacity as used herein does not imply absolute disability to perform any kind of labor, but a person physically disabled to such an extent or degree that he cannot perform the usual task of a workman in such a manner as to be able to procure and retain employment." This is an approved definition. Texas Employers Ins. Assn. v. Ray, Tex.Civ.App., 68 S.W.2d 290, 291, W.R.; Texas Employers Ins. Assn. v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001.

Professional & Technical
October 2
LawApp Publishers

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