Griffin v. Superior Insurance Company

• Decision Date: 15 June 1960
• Docket Number: No. A-7354,A-7354
• Citation: 338 S.W.2d 415,161 Tex. 195
• Parties: Richard J. GRIFFIN, Petitioner, v. SUPERIOR INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 415

338 S.W.2d 415

161 Tex. 195

Richard J. GRIFFIN, Petitioner, v. SUPERIOR INSURANCE COMPANY, Respondent.

No. A-7354.

Supreme Court of Texas.

June 15, 1960.

Rehearing Denied Oct. 12, 1960.

Huff & Splawn, Lubbock, for petitioner.

M. Hendricks Brown and Walter E. Jordan, Fort Worth, for respondent.

GRIFFIN, Justice.

In this workmen's compensation case, the jury found that Griffin had been totally and permanently disabled. His wage rate was found to be $90 per week (reduced to $80 by remittitur) which entitled him to the maximum compensation rate of $35 per week. The jury found that Griffin had not worked substantially the whole of a year at his employment. It further found that there was no other worker of the same class who had done similar work in the same or neighboring place. The jury therefore fixed his wages, under the Texas statute, as that rate which would be 'just and fair' to both parties. Art. 8309, § 1, Subdv. 3, Vernon's Annotated Texas Statutes. The insurance carrier had voluntarily paid Griffin on the basis of that same rate ($35 per week) for a period of 22 weeks prior to the trial. Judgment was accordingly entered for Griffin.

The judgment of the trial court was reversed by the Court of Civil Appeals, 323 S.W.2d 607. It held that the trial court erred in permitting the jury to fix Griffin's wage rate under the 'just and fair' section of the statute. Its reason was that before an employee is entitled to have his weekly wages ascertained under the 'just and fair' section of the statute, he (Griffin) had the burden of showing that no other employee had done similar work in the area for substantially the whole of a year prior to his (Griffin's) injury. The Court of Civil Appeals found that there was no evidence that there was no such other employee in the area. Petitioner is here asserting that the holding of the Court of Civil Appeals was error. We affirm the judgment of the Court of Civil Appeals.

Art. 8309, § 1, defines 'average weekly wages'. Subdv. 1 thereof applies to the employee who has worked for substantially the whole of the year immediately preceding the injury in the employment in which he was working at the time of the injury; Subdv. 2 applies to the injured employee who has not worked in such employment substantially the whole of the year preceding his injury, and his average weekly wage shall be that of an employee of the same class who has worked substantially the whole of the year, in the same or neighboring place, in the same or in a similar employment, and Subdv. 3 applies only where Subdvs. 1 and 2 do not apply, in which event his average weekly wages shall be computed in any manner that may seem just and fair to both parties. It was under Subdv. 3 that Griffin's 'average weekly wage' was computed.

In the application of these provisions for the determination of the average weekly wage of an injured employee, it is held that '* * * under the statute the burden is on the claimant to show by competent evidence that it is impracticable to compute the average weekly wage under either subsections 1 or 2 before subsection 3 can be resorted to * * *.' American Employers' Ins. Co. v. Singleton, Tex.Com.App.1930, 24 S.W.2d 26, 27 (holdings of the Commission expressly approved by the Supreme Court); Texas Employers' Ins. Ass'n v. Ford, 153 Tex. 470, 271 S.W.2d 397.

A case in point is the case of Robinson v. Texas Employers' Ins. Ass'n, Tex.Civ.App.1953, 261 S.W.2d 217, 220, wr. ref. There the Court said:

'The trial court correctly held that the evidence did not support the jury finding that no other employee of the same class as plaintiff had worked substantially the whole of the year immediately preceding plaintiff's injury in the same or similar employment in the same or neighboring place as provided in Subdivision 2 of the statute. There was no evidence that there was not such an employee. On the contrary, plaintiff himself testified and named three persons who had worked as much as a year prior to his injury in the same type of work in which he was engaged. This testimony is not contradicted. Although there was no evidence concerning the average weekly wage earned by such employees, there was no showing that such wages could not have been ascertained, or why for any reason it would have been impracticable to compute plaintiff's wage rate on the basis of the wages earned by one or more of such employees. It is well settled that a compensation claimant must show that his average weekly wage cannot be computed under either Subdivision 1 or 2 of the statute before he can resort to Subdivision 3 which provides for computation of his wage rate on a basis just and fair to both claimant and employer. Plaintiff did not make such proof concerning Subdivision 2.' (Citing cases).

It is undisputed that plaintiff had not worked for the whole of the year preceding his injury; therefore Subdv. 1 could not apply. The plaintiff testified that there was another employee engaged in the same work who had worked the year preceding plaintiff's injury. There is no evidence in the case at bar that would indicate that plaintiff made a mistake when he testified unequivocally and positively that he had located a man at O'Donnell, Texas, who had done the same work as plaintiff for a full year. There was no other evidence in this record except plaintiff's testimony on this point.

Plaintiff, in direct testimony, testified as follows:

'Q. Is there men out there at the gin that you know of that worked on through the gin for the whole year? A. Not that gin.

'Q. Well, at any of those gins in that area? A. Well, I know of one fellow at O'Donnell that worked the year around at the gin.

'Q. All right, does he do maintenance work, too? A. Just like I was doing.

'Q. Well, then I will ask you then, does he work on through with that type of work through the Fall and the ginning season? A. Yes, sir.'

Plaintiff, on re-direct examination by his counsel, testified as follows:

'Q. Speak out now where he can hear you, because you have your back to him, Mr. Griffin. Now, then, I will ask you, Mr. Griffin, if you made a search yourself? A. I did.

'Q. What type of search-just tell the jury what type of search that you made, and how you went about it in trying to find a wage-rate man that did work a full 12 months in the cotton ginning business? A. Well, I went to practically all of them, O'Donnell--

'I went to every-all of the gins in the area and tried to find someone that worked the whole 12 months. Well, I went to cafes--

'Q. Did you go any other places besides the gin itself? A. Yes, sir: I went to cafes, and a lots of places where they trade, at grocery stores, and so-forth, and I found one man that worked. (Emphasis supplied).

'Q. All, right, Sir, in that particular area doing the same type of work that you were doing? A. Yes, sir.'

This is the testimony to a direct fact that there was a man at O'Donnell who had been engaged in the same work that plaintiff was engaged in at a gin for a full 12 months prior to the time of his injury.

In order that plaintiff may recover under Subdv. 3, § 1, Art. 8309, it is necessary for the plaintiff to plead and prove facts that will prevent either Subdv. 1 or Subdv. 2 of this Article from applying. This the plaintiff not only failed to do, but he proved the fact that there was a workman who was employed a full 12 months at the same type work he did. This would entitle plaintiff to recover under Subdv. 2 if the pleading and evidence showed the wage rate of such workman. There is no evidence as to the average weekly wage of such a workman. This testimony of Griffin's that he had found another workman engaged in the same work as he who had worked for an entire year is a judicial admission which bars recovery of compensation under the 'just and fair' provision in Subdv. 3, § 1, Art. 8309. This principle of law is discussed in McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1127, p. 25, and we find these words: 'As long as the * * * admission stands unretracted, the fact * * * admitted, for the purpose of the case, is accepted as true by the court and jury and binding on the party making it, i. e., he cannot introduce evidence to contradict it.' A number of Texas cases are cited to sustain this proposition.

In 169 A.L.R. 799, II, it is stated that 'if a party, in his testimony, makes a material statement of fact negativing his right of action or defense, and no more favorable testimony appears to contradict or modify it, he is bound by it regardless of its credibility. * * *' Further, on pages 800-801, III, the rule is stated to be that 'if a party testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case, his adversary is entitled to hold him to it as an informal judicial admission.' On page 824, in discussing the Texas rule on this point, it is stated that 'the Texas Court of Civil Appeals appears to have adopted the Missouri rule, 'A party plaintiff testifying in his own behalf as to the existence of a fact is absolutely concluded thereby, unless he makes a correction thereof giving some excuse of mistake, oversight, misunderstanding, or lack of definite recollection," citing McMath Co. v. Staten, Tex.Civ.App.1931, 42 S.W.2d 649, wr. dism.; J. R. Watkins Co. v. King, Tex.Civ.App.1935, 83 S.W.2d 405, no writ history; Moore v. Conway, Tex.Civ.App.1937, 108 S.W.2d 954, no writ history; Wristen v. Wristen, Tex.Civ.App.1938, 119 S.W.2d 1104, wr. dism.; Kimmell v. Tipton, Tex.Civ.App.1940, 142 S.W.2d 421, no writ history.

Citing from Stanolind Oil & Gas Co. v. State, 1940, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569(1), 570:

'The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he...