Associated Indemnity Corporation v. McGrew
| Citation | 142 S.W.2d 567 |
| Decision Date | 03 July 1940 |
| Docket Number | No. 10992.,10992. |
| Parties | ASSOCIATED INDEMNITY CORPORATION v. McGREW. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Brazoria County; M. S. Munson, Judge.
Suit under the Workmen's Compensation Act by Lewis P. McGrew to set aside an award of the Industrial Accident Board in favor of the Associated Indemnity Corporation, wherein defendant filed a demurrer. From a judgment for plaintiff, defendant appeals.
Affirmed.
Vinson, Elkins, Weems & Francis, of Houston (C. M. Hightower, of Houston, of counsel), for appellant.
Masterson & Bryan, of Angleton, and E. B. Pickett, Jr., and Bradford Pickett, both of Liberty, for appellee.
This is a workman's compensation case.
It is sufficient, we think, for the purposes of this opinion to limit the statement of the pleadings to this: That appellee sued for compensation for total and permanent disability during 401 weeks, beginning with the 8th of December, 1937, the date he received his injuries; and in the alternative appellee sued for compensation for permanent partial disability for such time as the proof failed to show him entitled to compensation for total permanent disability. As a basis for a wage rate under one of the three methods provided by Art. 8309, Revised Statutes 1925, appellee pled that at the time he was injured he had worked for more than a year in the same employment, either for his then employer or other employers, for wages of $7.50 per day and more, working 7 days per week; and in the alternative he pled that other employees of the same class working substantially the whole of the immediately preceding year in the same or a neighboring place were earning $7.50 per day, and more; and further in the alternative, appellee pled as a fair and just wage compensation, the sum of $20 per week.
Appellant answered by a general demurrer and a general denial.
The court submitted but four special issues to be answered by the jury, who found: (1) That the total incapacity to work which appellee suffered as a result of the injuries sustained on December 8, 1937, was not permanent. (2) That such total incapacity had continued and would continue from December 8, 1937, 104 weeks. (3) That appellee has suffered and will suffer partial incapacity after the end of his period of total incapacity. (4) That the percentage of such partial incapacity suffered by appellee is 60 per cent.
The appellee, in his motion for judgment on the verdict, set forth as the way the compensation rate should be computed, as follows:
The court entered judgment in accordance with appellee's motion for 104 weeks' compensation at $20 per week, and 297 weeks' compensation at $15.57 per week, in compliance with appellee's quoted motion.
Appellant seeks reversal of the judgment on the ground, first: That there was no basis for judgment against it, because (a) there was no evidence to establish a wage rate; (b) the evidence was insufficient to establish a wage rate; (c) and there were no jury findings upon which to base a wage rate. Second: That the court should have submitted appellant's requested issues on (a) permanent partial disability; (b) temporary partial disability; and decrease in percentage of partial disability. Third: That the court should have submitted appellant's requested issue as to the difference between average weekly wages at the time of the accident and the average weekly wage-earning capacity during partial incapacity; and should have ruled that there was no evidence, and insufficient evidence to establish a compensation rate for partial incapacity. Fourth: That the court rendered excessive judgment for partial incapacity.
With reference to appellant's first contention, relating to the wage rate, the evidence was as follows: Appellee testified that on December 8, 1937 (the date of his injury), he was working for Smith & McDannald in the Hastings oil field in Brazoria County as a rotary helper drilling an oil well, but had only been working for such employer for two or three months; that before he came to the Hastings field he had worked at Rotan and at Dayton and in Louisiana; that since he had started to work he had done oil field work, pipeline work and mechanical work; when injured he was receiving $7.50 per day for eight hours work, and had received that while working in the Hastings field; that he had been doing the same kind of work for four years, and had been doing general oil field work for four to six years. T. O. Johnson, a witness for appellee, testified that he lived in Dayton, and knew appellee; he also testified that he (Johnson) had been an oil field worker in the drilling department for nine years, and that at the time appellee got hurt he, Johnson, was working for Loflin Brothers in the Hastings oil field; that he started working there the first part of January and left there just before Christmas in 1937; and that during that time he worked as much as 300 days; that during the first part of 1937, he was paid $7 per day, and in February they started paying him $8 per day; that he worked 7 days a week, and that every 2 weeks to 20 days he would earn 1 day overtime.
It is obvious that the evidence was insufficient to establish a wage rate under Section 1 of Art. 8309, which reads: "If the injured employe shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed." The evidence shows only what appellee made in the employment he was following for 2 or 3 months, and not what he earned in the same employment for substantially the whole of the year immediately preceding the injury.
It is appellant's contention that the evidence was likewise insufficient to establish a wage rate under Section 2 of Art. 8309, which reads: "If the injured employe shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employe of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed." The respect in which appellant contends that the evidence is insufficient to establish a wage rate under Section 2 is this: That the evidence relative to the time that T. O. Johnson worked, conclusively shows that from January 1, 1937, to December 1, 1937 (the date appellee was injured), the said Johnson worked 342 days, and accumulated 15 days' overtime, or a total of 357 days. And appellant further points out that Johnson gave no testimony to the effect that the wages he received and the time he worked was the usual and customary wages paid to, and time worked by, employees in the Hastings field; and that under no theory of law could the trial court fix and determine the wage rate to be applied under Subdivisions 1, 2 or 3 of Art. 8309. In support of its contention that the service experience of T. O. Johnson could not be used on which to compute the wage rate to be applied under Subdivision 2 of Art. 8309, because the evidence showed that he had worked substantially more than 300 days within a calendar year or the 12-month period next preceding the injury, appellant cites Petroleum Casualty Co. v. Williams, Tex.Com. App., 15 S.W.2d 553, 555. In that case the court construed what was meant by the words "year" and "substantially" as used in Subdivisions 1 and 2. And while it is true that the court there held that "substantially a year, within the meaning of subdivisions 1 and 2, is exactly 300 days or close to, or near to 300 days", the court did not hold that the experience or service record of workmen who had only worked exactly 300 days...
To continue reading
Request your trial