Texas Employers' Ins. Ass'n v. Clack

• Court: Texas Court of Appeals
• Writing for the Court: Folley
• Citation: Texas Employers' Ins. Ass'n v. Clack, 112 S.W.2d 526 (Tex. App. 1937)
• Decision Date: 08 November 1937
• Docket Number: No. 4815.,4815.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. CLACK.

Page 526

112 S.W.2d 526

TEXAS EMPLOYERS' INS. ASS'N v. CLACK.

No. 4815.

Court of Civil Appeals of Texas. Amarillo.

November 8, 1937.

Rehearing Denied January 17, 1938.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Suit under the Workmen's Compensation Act by P. K. Clack to set aside an award of the Industrial Accident Board in favor of the Texas Employers' Insurance Association. From a judgment granting relief, the defendant appeals.

Affirmed.

Underwood, Johnson, Dooley & Huff and R. A. Wilson, all of Amarillo, and Smith, Teed, Wade & Worley, of Pampa, for appellant.

S. D. Stennis and John V. Osborne, both of Pampa, for appellee.

FOLLEY, Justice.

This is a workmen's compensation suit in which we shall give the parties their trial court designation. The plaintiff, P. K. Clack, filed this suit in the district court of Gray county in the form of an appeal from an award of the Industrial Accident Board. Plaintiff alleged that he sustained an accidental injury on September 27, 1935, while in the employment of the Phillips Petroleum Company in Gray county, a subscriber of the defendant, Texas Employers' Insurance Association. He further alleged that he was operating a booster station for his employer and had been so employed continuously for approximately six years; that on the date alleged, while in the course of his employment, he accidentally fell from a water tower to the ground, a distance of about 16 feet, thereby injuring his back, hips, pelvis, and spine; that by reason of such injuries he sustained total and permanent disabilities; that he was a monthly employee at an agreed salary of $122 per month at the time of his injury; that he had been paid such amount for the same work each month of the year immediately preceding the date of his injury. The defendant answered by general demurrer and general denial.

The testimony was undisputed that the plaintiff had been paid the total sum of $1,464 as his salary for the year preceding his injury. The plaintiff so testified, and he was corroborated by the testimony of the pay roll clerk and the records of the Phillips Petroleum Company. The testimony shows that during said year, due to the operation of the NRA, the plaintiff was allowed to work only 4 days one week and 5 days the next, but that he was so employed each week of the year. He worked a total of 234 days during that year and was paid $122 each month during the year and for some time prior thereto.

The cause was submitted to a jury upon special issues. The jury found that plaintiff's injuries resulted in total and permanent incapacity, that plaintiff had earned the sum of $1,464 during the year preceding his injuries, and that his average weekly wage was $28.15. The court entered judgment for the plaintiff allowing him compensation for 401 weeks at $16.89 per week, the same being based upon 60 per cent. of $28.15, his average weekly wage. From such judgment the defendant has appealed to this court.

The defendant has assigned numerous errors in the trial court and has briefed forty-six propositions under these assignments. Since many of these are repetitions of others, we shall group all the propositions which are germane to the same subject matter.

The defendant attacks the judgment of the trial court, first, upon the theory that there was no proper wage scale shown. The defendant says that, since the testimony shows that the plaintiff worked only 234 days of the year preceding his injury, the same not amounting substantially to a year, that first subdivision 1 of section 1 of article 8309, R.C.S., is not applicable to this case. It further asserts that since there was no proof offered under first subdivisions 2 or 3 and no jury finding thereon, that there is no basis for any judgment.

There is no controversy between the parties as to the annual salary of the plaintiff. The jury found that plaintiff had worked the whole year preceding September 27, 1935. The jury also found that the plaintiff earned the sum of $1,464 during the year and that his average weekly wage was $28.15. The only controversy between the parties is the legal effect of such evidence and finding of the jury. The plaintiff contends that his actual earnings for the year should be the basis for his damages and that no computation is necessary since the exact amount is known. He asserts that his average weekly wage is one fifty-second part of his actual earnings for the year. We think the plaintiff is correct in such contention.

In the case of Howard et al. v. Texas Employers' Ins. Ass'n, Tex.Com.App., 292 S.W. 529, 531, the claimant had worked more than 300 days and his income for the year was definitely known. The claimant in that case was allowed to recover compensation based upon his actual earnings during the 12-month period preceding his injury. He was not limited to 300 times his daily wages. The opinion in that case announces the rule that subdivisions 1 and 2 apply only where the claimant has worked less than a 12-month period. From that opinion we quote: "Literally considered, the application of sections 1 or 2 (article 8309) to the facts of this case is impossible, because Howard `worked' the whole of the year, and did not work `substantially the whole of the year' immediately preceding receipt of injury. And that they were not intended to govern except in case the injured employé had worked for a shorter period than 12 months is generally indicated by their language, and especially by the use of the term `average annual wages' and the meaning there attached to that term. In general use, `average annual wages' would signify the average of wages earned over a period of more than one year, whereas, as used in this statute, the term plainly indicates the wage which would have earned if the employé had worked the whole of but one year. The artificial import thus given the words `average annual wages' impels the conclusion, we believe, that the legislative effort was solely directed at fixing a rule for the employé whose term of service at the time of the injury was less than 12 months." The above case was followed and cited by the Waco Court of Civil Appeals in Texas Employers' Ins. Ass'n v. Storey et al., 7 S.W.2d 913, 914, in a similar situation where the claimant had worked more than 300 days during the year preceding his injuries. From the opinion in that case we quote:

"We think this is the same question that was involved in the case of Howard et al. v. Texas Employers' Insurance Association, 292 S.W. 529, in which the Commission of Appeals, in an opinion approved by our Supreme Court, held adversely to appellant's contention. In the Howard Case, the trial court arrived at the average weekly wage in accordance with the provisions of sections 1 and 2 of article 8309, Revised Statutes, and the judgment in said cause was affirmed by the Court of Civil Appeals (282 S.W. 266). A writ of error was granted, and the Commission of Appeals recommended the reversal of the Court of Civil Appeals and the reforming of the judgment of the trial court, holding sections 1 and 2 of article 8309 were not applicable, and adopted the same method in arriving at the average weekly wage as used by the trial court in this case, which holding was necessarily approved by our Supreme Court in adopting the recommendation of the Commission of Appeals. The Howard Case and this case are similar, in that the record in each case showed affirmatively that the deceased worked more than 300 days during the year immediately preceding his death. It is our duty, as we view it, to follow the holding of our Supreme Court in the Howard Case. We do not think that the Legislature, in enacting sections 1 and 2 of article 8309, intended that the method there provided for ascertaining the average weekly wages of an employee should be applied arbitrarily in all cases, regardless of the circumstances of each particular case. The method there provided is, doubtless, intended to assist the board and the trial court in arriving at the fair average weekly wages of an employee who had been employed in his then employment less than a year at the time of his death, and was not intended to require the board of the court to do injustice to beneficiaries by presuming the deceased labored only 300 days in the year, when the record shows affirmatively that he actually labored more than 300 days. Article 8306, § 8, Revised Statutes; Howard et al. v. Texas Employers' Insurance Association (Tex.Com.App.) 292 S.W. 529. We overrule these assignments."

A similar rule was announced in Williams v. Petroleum Casualty Co., Tex.Civ.App., 4 S.W.2d 631, Texas Employers" Ins. Ass'n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600 and Texas Employers' Ins. Ass'n v. Sloan et al., Tex.Civ.App., 36 S.W.2d 319.

In the case of Casualty Reciprocal Exchange v. Stephens, 45 S.W.2d 143, 146, the Commission of Appeals, in an opinion by Judge Ryan, had this to say:

"The trial court submitted this issue to the jury, viz., `Find from the evidence and fix the average weekly wage, if any, of W. A. Stephens at the time of his injury?' and in connection therewith, instructed the jury as follows: `The average weekly wage as contemplated in the instant case is the actual amount of the earnings of the employee for the preceding twelve months divided by 52.'

"This is in accordance with the rule announced by Judge Critz in Texas Employers' Insurance Association v. Storey (Tex. Com.App.) 17 S.W.2d 458. There the claimant worked about 368 days, counting overtime, and earned $1,759.86, which, divided by 52 weeks, produced a quotient of $33.84. Here Stephens actually worked 353.5 days and earned $1,322.95, which, divided by 52 weeks, equals $25.44 7/52, the exact amount found by the jury as his average weekly wage. The trial court's judgment is correctly based on 60 per cent. of this amount, equaling $15.26 per week."

In urging this assignment, the defendant relies most strongly on the case of ...