Texas Employers' Ins. Ass'n v. Fitzgerald

• Decision Date: 25 June 1927
• Docket Number: (No. 806-4861.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 296 S.W. 509
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. FITZGERALD.
• Court: Texas Supreme Court

296 S.W. 509

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

(No. 806-4861.)^*

Commission of Appeals of Texas, Section B.

June 25, 1927.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by E. T. Fitzgerald against the Texas Employers' Insurance Association. Judgment for plaintiff was reformed and affirmed by the Court of Civil Appeals (292 S. W. 925), and defendant brings error. Reversed and remanded for a new trial.

Goggans & Allison, of Breckenridge, and B. O. Baker, of Dallas, for plaintiff in error.

Ritchie & Ranspot, of Mineral Wells, for defendant in error.

POWELL, P. J.

The Court of Civil Appeals states this case admirably. See 292 S. W. 925. In order to intelligently discuss what we consider the controlling assignment of error before us, we quote as follows from that opinion:

"The assignments under which proposition 9 is advanced, complaining of the excessiveness of the judgment because not supported by the verdict, are well taken and are sustained. Evidently the court based the judgment on the answer of the jury to special issue No. 2, wherein the average wage in the same neighborhood, earned by other laborers of the same class with the plaintiff during the year preceding plaintiff's injury, was `approximately $4.75 per day.' Judgment was evidently arrived at by taking this as a basis for a 7-day week for 400 weeks, using 5 per cent. discount rates.

"For reasons fully set forth in the first part of this opinion, sustaining assignments 36, 38, 44, and 68, this was erroneous, but judgment could and should have been entered for appellee herein on the basis of $25 per 7-day week for 400 weeks, using 5 per cent. discount rate. The answer of the jury to special issue No. 1 furnishes a proper basis for such judgment. There the jury found, in answer to issue No. 1 that the average weekly wage which plaintiff was earning as a pumper, at and prior to the time of his injury, was $25 per week. A judgment upon this basis is not subject to any just complaint upon the part of appellant.

"Evidently the judgment for $6,715.94 is excessive, and recovery should be calculated upon the basis indicated. This cause will be affirmed if appellee files in this court within 10 days remittitur of the excess contained in said judgment. As appellant and appellee have heretofore taken the same data and in their calculations, arrived at diverse amounts proper in such recovery, it seems that the calculations in such cases involve some technical knowledge of the principles applicable in ascertaining the amount due in a recovery upon this character of insurance. We respectfully suggest that appellant and appellee, within the 10 days indicated, furnish us with a careful and explicit calculation of the proper amount for which this judgment should be rendered upon the basis of $25 per 7-day week for 400 weeks, 5 per cent. discount rate. If the remittitur is not complied with, the judgment will be reversed and the cause remanded; otherwise, it will be reformed and affirmed, with cost against the appellee."

The suggested remittitur was filed and judgment rendered in favor of Fitzgerald and against the Employers' Insurance Association for $4,890.65, with interest thereon at the rate of 6 per cent. per annum.

The Court of Civil Appeals found that the district court erred in basing its judgment on the jury's answer to special issue No. 2. This, for the reason that "approximately $4.75 per day" was too indefinite to be the basis of a court judgment. Having so found, however, the appellate court then proceeded to render judgment under the jury's answer to special issue No. 1, the effect of which is accurately stated by the Court of Civil Appeals in our aforesaid quotation from its opinion.

When the basis of the judgment was so changed, the association, on rehearing, complained vigorously because there was no basis in the pleadings for special issue No. 1. And that same contention is the basis of the first assignment of error in the application upon which the writ was granted. That assignment, and its proposition, read as follows:

"First Assignment.

"The Court of Civil Appeals erred in holding that, notwithstanding the fact that the jury's answer to special issue No. 2 herein, to the effect that working in the same or neighboring places the average wage earned by other laborers of the same class with plaintiff during the year preceding his injury was `approximately $4.75 per day,' was too vague, indefinite, irresponsive, and uncertain to sustain a judgment based thereon, still its answer to special issue No. 1 would support a judgment in favor of appellee against appellant on the basis of $25 per 7-day week for 400 weeks, using 5 per cent discount rate, because the pleadings of the appellee in the trial court herein not only do not support such a recovery, but even negative his right thereto. (Presented as paragraph 1 of appellant's motion for rehearing in the Court of Civil Appeals.)

"Proposition.

"A judgment cannot be based upon an answer to an issue, where such issue is not made by the pleadings."

The wage set up in the pleading as the basis of the prayer therein reads as follows:

"Fifth. Plaintiff further shows that he had been engaged at work in the employment in which he was engaged at the time of his said injuries for a period of about six or seven months, only, prior to the time of such injuries; that his average weekly wage for such time was the sum of $30 per week, working 7 days per week, the nature of the work at which he was so engaged requiring work on Sundays, as well as on week days; and that his said wages were at the rate of approximately $1,600 per year.

"Plaintiff further alleges that the average daily wage of employees of the same class with plaintiff at and prior to the time of his said injuries, engaged in the same employment and in the same and neighboring places, was the sum of $35 per week, for 7 days' work per week, such employment requiring 7 days per week work as aforesaid, and that the average annual wages of such employees of the same class with the plaintiff, and working in the same place and in neighboring places, was the sum of $1,800 per year, and that, by reason of the fact that plaintiff at the time of his said injuries had not been engaged in his said employment for substantially the whole of the year immediately preceding such injuries, his average weekly and his average annual wages and his compensation should be based upon the wages of other employees of the same class who had worked substantially the whole of the preceding year in the same place and in neighboring places." (Italics ours.)

In view of this pleading, which is the only part thereof setting up the basis of the judgment prayed for, we think this assignment must be sustained.

The plaintiff in error, in the application, expresses our reasons for sustaining this assignment, which reasons are as follows:

"In the case of Morris v. McSpadden et al., 179 S. W. 554, writ...