Texas Emp. Ins. Ass'n v. Grimes

• Citation: 268 S.W.2d 786
• Decision Date: 06 May 1954
• Docket Number: No. 6700,6700
• Parties: TEXAS EMPLOYERS INS. ASS'N v. GRIMES.
• Court: Texas Court of Appeals

Page 786

268 S.W.2d 786

TEXAS EMPLOYERS INS. ASS'N v. GRIMES.

No. 6700.

Court of Civil Appeals of Texas, Texarkana.

May 6, 1954.

Rehearing Denied June 10, 1954.

Ramey, Calhoun, Brelsford & Hull, O. C. Funderburk, Tyler, for appellant.

Fulmer, Fairchild & Barnett, Nacogdoches, Stone & Stone, Jacksonville, for appellee.

FANNING, Justice.

This is a workmen's compensation case. Fredie E. Grimes, as an employee of Edwards Bros. Lubmer Company, after an unsatisfactory award by the Industrial Accident Board, brought this suit to recover compensation in a lump sum for alleged total and permanent disability. Upon trial by jury, the court rendered judgment for the plaintiff based upon the verdict, awarding plaintiff lump-sum award for total and permanent disability (401 weeks) at the rate of $25 per week (less 10 weeks compensation at $22.40 per week paid by appellant to appellee), with statutory interest on matured installments and less statutory discount on the unmatured installments. The defendant, Texas Employers' Insurance Association has appealed.

All of appellant's points relate to the subject of average weekly wages. The statute principally involved in Vernon's Annotated Civil Statutes of Texas, article 8309, sec. 1, subsections 1, 2 and 3. For brevity, the parts of said statute will be referred to simply as subsec. 1, subsec. 2, and subsec. 3.

The jury in response to special issue No. 9 (relating to subsec. 1) found that appellee did work in the employment in which he was working at the time of the injury substantially the whole of the year immediately preceding the injury, etc. In response to special issue No. 10 the jury found that appellee's average daily wage which he earned during the days he was so employed was $7.50 per day. The jury did not answer special issues Nos. 11 and 12 (relating to subsec. 2) which were issues relating to the average weekly wages of other employees of the same class as Fredie E. Grimes, etc. The jury in response to special issue No. 13 (relating to subsec. 3) found that the sum of $45 per week would represent a fair and just average weekly wage, etc.

Appellant contends, among other things, that the evidence does not support the finding of the jury on special issue No. 9 that appellee worked substantially the whole of the year immediately preceding his injury. The term 'substantially the whole of the year' has been defined as 'exactly 300 days or close to, or near to 300 days.' Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553, 555; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598, error dism.; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W.2d 126.

The case of Texas Employers' Ins. Ass'n v. Ebers, Tex.Civ.App., 134 S.W.2d 797, 799, holds that a workmen's compensation claimant who worked 260 days of the year immediately preceding his injury, did not 'work substantially as much as 300 days' during the 12 month period immediately preceding his injury within the terms of the compensation act.

In Industrial Lloyds v. Denum, Tex.Civ.App., 160 S.W.2d 966, 967, (writ ref., w.m.) it is stated: 'It cannot be said as a matter of law that 278 days amounts to 'substantially the whole of such immediately preceding year,' against the affirmative requirement of this section that the employee's average annual wage shall consist of 300 times the average daily wage.'

In Travelers Ins. Co. v. Noble, Tex.Civ.App., 129 S.W.2d 778, 782, (dism.cor.judgm.) it was held that where an employee testified that he worked 'around 285 days' during previous year, and punched a clock during that time, thus indicating that an exact record of his working days could have been determined from employer, but employer did not produce such records, such testimony authorized finding that employee had worked substantially the whole of the year immediately preceding the injury. We quote from the court's opinion in this case as follows: "Q. How many days do you think you worked during the year? A. I never kept up with it, I would say around 285 days though. Q. Of course you punched a clock as to the time and the records would show? A. Yes, sir.' From the last answer, we can infer that the exact record of appellee's working days during the particular period could have been determined from his employer, but was not produced.'

Appellee Grimes in response to the question as to how many days in logging that he put in for his employer for the year prior to his injury stated: 'Well, I would roughly say that it was somewhere between two seventy and two eighty, just roughly guessing at that more or less.' His counsel asked him further 'You think it wouldn't be under two seventy and not over two eighty,' and appellee replied: 'No, sir, I don't believe it would.' He further testified that he was 'drawing seven and a half' a day, and that he would draw the same pay for the extra time that he put in on Sundays 'for repairing bridges and things like that. " Appellee also testified that he had worked 'lots of Sundays' and worked 'quite a number of Sundays'; that he did not log on Sundays and that when he worked on Sundays it would be 'a check-up or preparation for continuing on (your) logging;' and that he received the same pay for the extra time he put in on Sundays. Appellee, however, did not testify as to how long or how many hours he worked on Sundays, nor whether he put in full days or part days, nor does he give any approximate number of the Sundays he worked. His evidence is...