His claim for compensation under the Workmen's Compensation Law, Article 8306 et seq., Vernon's Texas Civil Statutes, for an injury he alleges he sustained November 1, 1955, in the course of his employment with Bethlehem Steel Corporation having been dismissed by the Industrial Accident Board (on the ground that his rights are governed by the Longshoremen's and Harbor Workers' Compensation Act, Title 33, Section 901 et seq., U.S.C.A.), appellee, J. W. Marshall, brought suit in the district court of Jefferson County against appellant, Indemnity Insurance Company of North America, the employer's insurer, to set aside the ruling of the Board and to recover under the state law. His petition, which contained no allegation rendering the Longshoremen's and Harbor Workers' Compensation Act applicable, requires comment only because he affirmatively pleaded that he was suing for $2,975 "and for no more," said sum representing compensation at the rate of $25 per week for 119 weeks of alleged total disability, and because he did not allege any partial disability. His prayer, which was in keeping with his allegations but was also for general relief, concluded in this manner: "* * * but in no event does plaintiff claim more than the total sum of Two Thousand Nine Hundred and Seventy-five ($2,975.00) Dollars Compensation."
Appellant filed and presented in the trial court pleas challenging the court's jurisdiction and in abatement, setting up, in substance: (1) That appellee had received his injuries, if any, while working on a ship which was floating on navigable waters of the United States and which "had been engaged in interstate commerce" on such waters, and that therefore the court was without jurisdiction of the subject matter of the suit, the federal Longshoremen's and Harbor Workers' Compensation Act rather than the state Workmen's Compensation Law being applicable, and the Bureau of Employees' Compensation, U.S. Department of Labor, being vested with exclusive original jurisdiction of all claims arising under the federal Act. (2) That the Industrial Accident Board had not considered appellee's claim on its merits and had made no final, appealable award on the merits of the claim, having merely dismissed the claim for want of jurisdiction, and that therefore the trial court was without jurisdiction to hear and determine the case on its merits. (3) That appellee had previously asserted claim under the federal Act and invoked the jurisdiction of the "U.S. Deputy Commissioner," and had thereby elected his remedy (if he had a choice between the inconsistent remedies afforded by the federal and state laws), and that he was bound by such election and was estopped from further prosecuting his suit under the state law.
Subject to its aforesaid pleas to the jurisdiction and in abatement, appellant answered by general denial, by pleading that any incapacity appellee had suffered had resulted, in whole or in part, from prior injuries, diseases and infections, and by again pleading (this time in more detail) its version of the circumstances in which appellee sustained his injuries, if any, which circumstances were represented as precluding recovery of compensation under the state law. Appellee was alleged to have received his injuries, if any, while doing maritime work on board a ship which had long been engaged in interstate and international commerce, both on inland navigable waters and on the high seas, and which was temporarily in a floating dry dock, on navigable waters of the United States, undergoing repairs which were being made under a maritime contract, and with which appellee was helping.
Appellee filed a supplemental petition which was principally devoted to answering appellant's plea that appellee had elected to prosecute his claim under the federal Act. In addition, however, without pleading any facts to support his conclusion, appellee specially pleaded that the work he was doing when he received his alleged injuries was non-maritime in nature and was being performed under a non-maritime contract. Of his answer to appellant's plea of election, it is sufficient to say that he pleaded that he had never filed with the Deputy U.S. Commissioner, Bureau of Employees' Compensation, a formal claim for compensation -- i.e., had never filed form No. 203, the federal form provided for such purposes; that because form 203 had not been filed, appellant had objected to the deputy commissioner's taking jurisdiction of the claim; and that, having so objected, appellant was estopped to claim that appellee had elected to proceed under the federal law.
After a hearing, at which evidence was adduced, appellant's pleas to the jurisdiction and in abatement were overruled. The case was then tried to a jury. At the close of the evidence, appellant filed and presented a motion for instructed verdict, the grounds of which, in so far as we need take note of them, were substantially the same as those on which appellant's pleas to the jurisdiction and in abatement were based. The motion was overruled. It may also be noted at this point that, after verdict, appellant made motion, on the same grounds, for judgment non obstante veredicto. It, too, was overruled. Numerous special issues were submitted to the jury, but we need take note of only two aspects of the verdict: (1) In response to one series of questions, the jury found that as a result of his injuries the appellee had suffered total incapacity which had continued or would continue for a period of 119 weeks from November 1, 1955. (2) In response to another series, it found that permanently from and after January 15, 1958, appellee will be 35% partially incapacitated. Computation will disclose that 119 weeks from November 1, 1955, will carry beyond January 15, 1958, by four weeks. Because of this, and in view of the fact that appellee had pleaded 119 weeks of total disability and nothing more, the trial court rendered judgment that appellee recover of appellant "compensation, as and for total incapacity for a period of time from the date of his injury down to the time of the commencement of partial incapacity, to-wit, for a period of 115 weeks from November 1, 1955, to January 15, 1958, at the rate of Twenty five Dollars ($25.00) per week, paid weekly," and "compensation for thirty five per cent (35%) partial incapacity for a period of four (4) weeks, commencing on January 15, 1958, at the rate of $12.60 per week, making in all a total period of compensation of 119 weeks." All past due installments were ordered paid in a lump sum. The judgment also contained the following provision: "This judgment shall bear interest at the rate of four per cent (4%) per annum." Appellant excepted to the judgment itself, and thereafter seasonably filed and presented its motion for new trial. The latter having been overruled, appeal was duly perfected to this court.
Appellant has brought forward seven points of error and it is believed that clarity will be aided by at this time setting out the substance of each of them. It is contended that the trial court erred: (1) In overruling appellant's plea to the jurisdiction. (2) In overruling appellant's motion for instructed verdict and motion for judgment non obstante veredicto, "when no claim had ever been tried or determined on the merits of the case before the Industrial Accident Board." (3) In rendering judgment for appellee, there being a "conflict between the findings in the verdict on the two controlling issues of total incapacity and partial incapacity, wherein the jury found that total incapacity and partial incapacity obtained at the same time." (4) In refusing to permit appellant to introduce evidence of appellee's being a heavy drinker of alcoholic beverages. (5) In "permitting the appellee to waive about $4,000.00 of compensation insurance which was determined by the trial court to be due him, thereby denying appellant the right to remove its case to the Federal Court." (6) In refusing to submit to the jury defendant's requested issue No. H, as follows: "From a preponderance of the evidence, what do you find was plaintiff's average weekly wage earning capacity during the existence of that partial incapacity, if any such you have found?" Note: In lieu of the requested issue the court submitted the following: "From a preponderance of the evidence what do you find to be the amount of plaintiff's incapacity during such period of partial incapacity, if any? Answer by stating the amount of partial incapacity, if any, in terms of percentage." (7) In "allowing interest on the judgment as it did."
The evidence adduced during the hearing of appellant's pleas to the jurisdiction and in abatement was without material conflict. Appellee was injured, if at all, while helping repair a commissioned ship of foreign registry and of more than eighteen tons net. The vessel had long been engaged in interstate and foreign commerce and was laid up only temporarily for repairs. It was in a floating dry dock, on navigable waters of the United States, having been on the Neches River at Beaumont in Jefferson County. The vessel was being repaired by Bethlehem Steel Corporation under a maritime contract. Appellee, a pipe fitter, was in the course of his employment with that company when he received his injuries, if any. He claims to have injured himself while lifting into position in the engine room of the ship a valve of some eighty pounds weight.
Appellee was doing the second tour of duty he had done aboard ship as an employee of Bethlehem Steel Corporation, though he had been employed by the company for a week or more. Most of his work as a pipe fitter, both as an employee of Bethlehem Steel Corporation and otherwise, was done on land. As Bethlehem's employee, appellee was subject to duty assignment on either ship or land, but even when assigned ship duty he might still perform a considerable part of his work in the pipe shop on shore.
Appellee sustained injury, if at all, on November 1, 1955. On or about November 14, 1955, he filed claim with the Industrial Accident Board of Texas for compensation under the Workmen's Compensation Law, Art. 8306 et seq., Vernon's Annotated Civil Statutes. Hearing before the Board was set for January 31, 1956. Before the hearing date arrived, however, and before the Industrial Accident Board had taken further action in the matter, appellee's attorneys wrote to the United States Deputy Commissioner, Federal Bureau of Employees' Compensation, U.S. Department of Labor, Galveston, Texas, requesting that he take jurisdiction of the claim and grant appellee an immediate hearing. The letter bore date of December 30, 1955. On the same date, appellee's attorneys also wrote to the Industrial Accident Board, advising it that they were requesting the Deputy Commissioner to assume jurisdiction. They forwarded a copy of this letter with their letter to the Deputy Commissioner. In these letters counsel represented that in filing claim with the Industrial Accident Board they had acted under the mistaken belief that appellee was on shore when he received his injury, but that they had learned on November 25, 1955, that appellee had in fact been on board a ship; that, since learning the true facts, they had endeavored, without success, to get appellant to agree with them as to which of the Compensation Acts -- state or federal -- would be treated as being applicable; and that, because of appellee's need, and of the uncertainty about which of the Compensation Acts was properly applicable, and in the hope that by so doing they could avoid prolonged litigation and could expedite disposition of appellee's claim, they had concluded to proceed under the federal law. In neither of the letters, however, did counsel concede that only the federal law covered appellee's claim. On the contrary, they expressed the opinion that either Act could legally be given application.
By letter dated February 6, 1956, a copy of which was sent to appellee, to appellee's attorneys, and to the Industrial Accident Board, the Deputy Commissioner advised appellant, Indemnity Insurance Company of North America, that he, the Deputy Commissioner had accepted jurisdiction of appellee's claim. In the meantime, however, this suit had been filed February 1, 1956, as an appeal from what appellee alleges was a final ruling or award by the Industrial Accident Board on his claim. The Board's action appears to have been taken on January 26, 1956. Thereafter and in due course of mail, appellee received from the Board a notice which contained, among other things, the following:
"The hearing for this claim [appellee's] is cancelled because:
"3. This claim is one coming under the jurisdiction of the U.S. Dept. of Labor, Bureau of ...