Texas Employers Ins. Ass'n v. Clack

• Decision Date: 01 November 1939
• Docket Number: No. 2269-7394.,2269-7394.
• Citation: 132 S.W.2d 399
• Parties: TEXAS EMPLOYERS INS. ASS'N v. CLACK.
• Court: Texas Supreme Court

132 S.W.2d 399

TEXAS EMPLOYERS INS. ASS'N v. CLACK.

No. 2269-7394.

Commission of Appeals of Texas, Section A.

November 1, 1939.

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

Suit under 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. Judgment granting relief was affirmed by the Court of Civil Appeals, 112 S.W.2d 526, and defendant brings error.

Affirmed.

Wm. Jarrel Smith, of Pampa, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for plaintiff in error.

S. D. Stennis and John V. Osborne, both of Pampa, for defendant in error.

GERMAN, Commissioner.

This is a compensation case. In the district court defendant in error, Clack, was awarded compensation on a weekly wage basis of $28.15. The judgment of the trial court was affirmed by the Court of Civil Appeals. 112 S.W.2d 526. In the opinion of the Court of Civil Appeals will be found a full and complete statement of the essential facts and the various questions presented for review.

Writ of error was granted upon an assignment questioning the correctness of the method used by the trial court in arriving at the average weekly wages of the claimant Clack, who will be referred to as plaintiff.

Plaintiff had been employed by the Phillips Petroleum Company for a number of years, and had been working for that company alone for the year preceding his injuries. It is undisputed that during the year preceding his injuries plaintiff had been paid for his services a salary of $122 per month, which was paid in semi-monthly installments. During said year, under operation of the NRA Code, plaintiff was permitted to work only four days in one week and five days in the next week. As the result of such arrangement, he worked a total of only 234 days during the year, although he was regarded as in the employment of said company during the whole of the year. He had not received any daily wages. His monthly salary of $122 was in no manner affected by the fact that he worked four days in one week and five days the next week. On the basis of $122 per month he was actually paid $1,464 for the twelve months preceding his injury. The trial court instructed the jury to fix the average weekly wages by dividing the total amount received during the year by fifty-two, and in this way the jury fixed the weekly wages at $28.15. This action of the court is the dominant question brought before this court for consideration.

Briefly, it is the contention of plaintiff in error that as plaintiff did not actually work 300 days, or substantially 300 days, during the preceding year, but only 234 days, his weekly wages could not be fixed under subsection 1 of section 1, Article 8309 of the Revised Statutes, and that as the proof failed to show either subsections 2 or 3 applicable, there was no basis by which the weekly wages could be ascertained.

The pertinent statute is as follows:

"1. 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.

"2. 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.

"3. When by reason of the shortness of the time of the employment of the employe, or other employe engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute...