Traders & General Ins. Co. v. Turner

• Decision Date: 28 February 1941
• Docket Number: No. 14180.,14180.
• Parties: TRADERS & GENERAL INS. CO. v. W. L. TURNER.
• Court: Texas Court of Appeals

149 S.W.2d 593

TRADERS & GENERAL INS. CO. v. W. L. TURNER.

No. 14180.

Court of Civil Appeals of Texas. Fort Worth.

February 28, 1941.

Rehearing Denied April 11, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jack County; J. E. Carter, Judge.

Proceeding under the Workmen's Compensation Act by W. L. Turner, claimant, opposed by R. H. Dearing & Sons, employers, and the Traders & General Insurance Company, insurance carrier. From an adverse judgment, the insurance carrier appeals.

Affirmed.

John D. McComb, of Jacksboro, and Lightfoot, Robertson & Gano, of Fort Worth (E. B. Robertson, of Fort Worth, of counsel), for appellant.

Lowell Crosier and Gean B. Turner, both of Cleburne, and Allen Crowley, of Fort Worth, for appellee.

SPEER, Justice.

This suit arose under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. W. L. Turner was the employee, and will be referred to in this opinion as appellee; R. H. Dearing & Sons were the employers and will be referred to as such; and Traders & General Insurance Company was the insurance carrier; an adverse judgment to it having been entered, that company has perfected an appeal and we shall refer to it as appellant.

In so far as is necessary to state, from the record appellee received two accidental injuries in the course of his employment; one on March 8th and another on March 29, 1939. He became totally and permanently incapacitated to labor on about August 15, 1939, as a result of both said injuries. His allegations were sufficient to entitle him to have his average wage rate fixed under either of Subsections 1, 2 and 3 of first Section 1, Article 8309, R.C.S.

Appellant's defense rested upon its general denial. There were special denials under oath of competent notice of the accident and injury, claim for compensation and notice of appeal from the award of the Industrial Accident Board, but in so far as this appeal is concerned all but the general issue have gone out of the case.

The case was tried to a jury on special issues. The verdict was favorable to appellee. There were findings that appellee had not been engaged in that labor for substantially a year next preceding the date of the accidents, and that no other person engaged in similar employment at that time and place or in that vicinity had worked for substantially the whole year next preceding the date of the first accident. Under a special issue based on 3rd subsection of Section 1, of the statute above referred to, the jury found that a just and fair average daily wage rate was $4.25. It was found that appellee was totally and permanently incapacitated to labor and facts were found justifying a lump sum settlement. Judgment was entered for a recovery of the total sum of $5,010.60, the then value of compensation at $14.70 per week for 401 weeks, beginning with August 15, 1939.

Appellant's first three propositions complain of the submission of Special Issue 27. This question inquired what would be an average daily wage rate for appellee, fair and just to both parties to the suit. It is argued that it was error because: (a) The wage rate should have been fixed under first Subsection 5 of Section 1, Article 8309, R.C.S.; (b) $4.25 per day found by the jury was not a just and fair average wage rate as between the parties, and (c) if based upon Subsection 3 as was attempted, the just and fair weekly wage rate and not the average daily wage rate should have been found.

The first three propositions are properly briefed together. There is some testimony in the record to the effect that appellee was in the employ of his employer at all times during the year preceding the dates of his injuries; but it is indisputably true that the work was intermittent, not continuous; that he worked by the hour when there was work to be done; that the timekeeper kept appellee's time along with all other employees and when he had worked enough hours to make a day or even a half day he was paid on a basis of $4.25 per day. The uncontroverted testimony of the timekeeper, introduced by appellant, shows that appellee worked only 252 days during the year. In appellant's proposition it states: "The undisputed evidence shows that the character of work plaintiff was engaged in at the time of his injury or injuries, and for the whole of the immediately preceding year was irregular and intermittent, and that neither he nor any other employee of his class could work the whole of any year." Similar statements are found throughout appellant's briefs. We may assume from these things that no contention is made that appellee's wage rate could be fixed under either Subsections 1 or 2 of Section 1, Article 8309; however, special issues were submitted on each of said subsections and the answers, supported by competent evidence, confirm that as a fact. Appellant contends that the wage rate should have been fixed under Subsection 5 of Section 1, Article 8309, which reads: "The average weekly wages of an employé shall be one-fifty-second part of the average annual wages." In this case appellee had no annual, or even monthly or weekly, wage, but worked by the hour. Clearly Subsection 5 could not be applied, but resort must be had to Subsection 3 which provides in effect, when the wage rate cannot be fixed under either Subsections 1 or 2, or for other good and sufficient reasons it is impracticable to compute the average weekly wages, it shall be computed by the Board (or court) in any manner which may seem just and fair to both parties. All these conditions appear to have existed and the rate complained of was found under said Subsection 3.

If we properly understand appellant's contention presented under this group of propositions, it is to the effect that it is unjust and unfair to it to have the rate based upon the average daily wage rate of the injured employee as of the time of the accident, but that the weekly rate should be computed by dividing the total amount received in wages during the preceding year by 52 and award him compensation on a basis of 60% of the result so obtained. We do not so understand the many holdings of the courts. We have been cited to no case of such import. It has many times been held that our Workmen's Compensation Act is not intended to compensate an injured employee merely for the loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full time basis. Texas Employers Insurance Ass'n v. Clack, 134 Tex. 151, 132 S.W.2d 399; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W. 2d 356, writ refused; Traders & General Ins. Co. v. O'Quinn, Tex.Civ.App., 111 S. W.2d 859, writ refused.

The complaint leveled in the briefs by appellant to special issue 27, upon the ground that it asked for a just and fair average daily wage rate when the law provides that the just and fair weekly wage rate may be fixed by what is just and fair to both parties to the suit, finds no support in the objections presented to the trial court before the submission of his charge as provided by Article 2185, R.C.S., and it cannot be urged for the first time on appeal. "It is fundamental that the appealing party, who presents error in the giving of an issue, must be relegated to and bound by the objections made by him to such issue. He cannot enlarge his objections either by his assignment of error, or by any supporting proposition." Le Sage v. Smith, Tex.Civ. App., 145 S.W.2d 308, 311, writ dismissed, correct judgment. Even if the point could be considered by us, we think no reversible error is presented, since by Subsection 3 of Section 1, Article 8309, much latitude is given to the Board, Court and jury in arriving at a just and fair average wage rate when it cannot be computed under Subsections 1 or 2. When a just and fair average daily wage rate has been found, under the liberal rule invoked it is only a matter of calculation to ascertain the weekly rate. See Lumbermen's Reciprocal Ass'n v. Warner, Tex.Civ.App., 234 S.W. 545, affirmed by Commission of Appeals 245 S.W. 664; Texas Employers' Insurance Ass'n v. Russell, Tex.Civ.App., 16 S.W.2d 321, writ dismissed; and United States Fidelity & Guaranty Co. v. Morgan, Tex.Civ.App., 18 S.W. 2d 810, writ dismissed. We see no worth-while merit in the contentions raised by these three propositions.

For reasons which will later appear in this discussion, we pass the fourth proposition and take up numbers five, six and seven. These propositions relate to the definition given by the court of the expression "producing cause" used in connection with Special Issue 13, as well also to the issue as propounded. Special Issue 13 was in this language: "Do you find from a preponderance of the evidence that the personal injury, if any inquired about in issues 1 to 5 inclusive, and the personal injury, if any, inquired about in issues 6 to 10 inclusive, were a producing cause, as that term is herein defined, of the total incapacity, if any, inquired about in Issue No. 11?" The issue was answered in the affirmative. In the early part of the court's charge a definition was given of the term "personal injury"; it was in the form approved by the courts many times. Preparatory to the submission of Special Issue 13, quoted above, the court, among other definitions, also gave this one: "By the term `producing cause' is meant such a cause as naturally results in the incapacity to perform the usual tasks of a workman, and such cause as is at all times continuing and unbroken cause of such incapacity and without which such incapacity would not have occurred."

Complaint is made of the definition of "producing cause," given by the court, upon the ground that it is confusing to the jury, in that it embraces certain elements of the term proximate cause, which has no place in a compensation case; that it is and was calculated to and did lead the jury to believe that if a disability to appellee resulted from an injury, he should...