United States Fidelity & Guaranty Co. v. Morgan

• Decision Date: 31 May 1929
• Docket Number: (No. 1797.)
• Citation: 18 S.W.2d 810
• Court: Texas Court of Appeals
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. MORGAN.

Page 810

18 S.W.2d 810

UNITED STATES FIDELITY & GUARANTY CO. v. MORGAN.

(No. 1797.)

Court of Civil Appeals of Texas. Beaumont.

May 31, 1929.

Rehearing Denied June 12, 1929.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Suit by Amma Kimmey Morgan against the United States Fidelity & Guaranty Company to set aside an award of the Industrial Accident Board denying her compensation by reason of the death of her father, C. E. Kimmey, as an employee of the Jordan Gin Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hunt, Moseley & Hunt and H. G. Butts, all of Houston, for appellant.

J. J. Collins, of Lufkin, for appellee.

O'QUINN, J.

Appellee brought this suit in the district court of Angelina county to set aside an award of the Industrial Accident Board, denying her compensation which she claimed by reason of the death of her father, C. E. Kimmey, as an employee of Jordan Gin Company, which carried compensation insurance with appellant. Her petition contained the usual and necessary allegations in a suit of this nature. Appellant answered by general demurrer, several special exceptions, general denial, and specially that the death of appellee's father did not result from an injury received by him in the course of his employment, but was due to natural causes. The case was tried to a jury upon special issues, upon their answers to which judgment was rendered in favor of appellee against appellant. Motion for a new trial was overruled, and appellant brings this appeal.

Appellant's first four propositions are presented grouped. They are to the effect that the court erred in rendering judgment for appellee because there was neither pleading nor proof of deceased's weekly wages, nor was there any finding by the jury of deceased's weekly wages, nor any evidence to support a finding by the court of the weekly wages. This contention is overruled. Appellee's petition alleged that deceased was working for $2.50 per day, and that he worked six days per week. The evidence is undisputed that he was working for $2.50 per day and that he worked six days per week. Appellant bases its contention on subsections 1, 2 and 5, § 1, art. 8309, R. S. 1925, and decisions construing same. Subsection 1 relates to the method by which the average weekly wages of the injured employee may be found, where the employee had worked in the employment in which he was engaged at the time of his injury for substantially the whole of the year immediately preceding the injury, and subsection 2 as to how the average weekly wages may be determined when the employee had not worked at such employment for substantially the whole of the year immediately prior to the injury, and subsection 5 simply provides that the average weekly wages of an injured employee shall be one fifty-second part of the average annual wages.

Appellant takes no note of subsection 3 of said article, which provides that "When by reason of the shortness of the time of the employment of the employee, or other employee 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 the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties."

Under the facts in the instant case, deceased's weekly wages could not be computed in the manner provided by either subsection 1 or 2. Deceased had not worked in the employment in which he was working at the time of his injury for substantially the whole of the year immediately preceding his injury, nor had any other employee of the same class worked in the same or a similar employment in the same or a neighboring place for substantially the whole of the preceding year before the injury. The nature of the work being done was such that no employee could work at same but for a short period of time. The Jordan Gin Company was having a wooden gin house erected, and the time necessary for its building could not exceed for a year, but only to a short period of time. The employment was, therefore, temporary. That being true, then the average weekly wages of deceased would have to be found in the manner provided by subsection 3 of article 8309, mentioned supra.

There was no issue submitted to the jury relative to the average weekly wages of deceased per day or per week. No such issue was requested to be submitted by either party. There were no objections by either party to the charge of the court because of said issue not being submitted. As above stated, the facts shown are such that deceased's average weekly wages could not be ascertained by either of the modes prescribed in subsections 1 or 2 of article 8309, and therefore should be found in the manner prescribed in subsection 3, supra. Deceased's daily wage is definite—without dispute—$2.50 per day for six days per week, or $15 per week. The court, under the pleadings and the evidence, would have been authorized under this subsection to have submitted to the jury the issue as to what was the average weekly wage being earned by deceased at the time of his injury. Texas Employers' Insurance Ass'n v. Manning (Tex. Civ. App.) 299 S. W. 534 (writ dismissed); Texas Employers' Insurance Ass'n v. Bateman (Tex. Civ. App.) 252 S. W. 339; Lumbermen's Reciprocal Ass'n v. Warner (Tex. Civ. App.) 234 S. W. 545, affirmed (Tex. Com. App.) 245 S. W. 664; Texas Employers' Insurance Ass'n v. Russell, 16 S.W.(3d) 321 (recently decided by this court).

In the Manning Case, supra, the injured employee had worked for less than two months at the time he received his injury. He was working for $4.50 per day. There was no proof of what other employes in the same class of work in the community had received immediately prior thereto for a period of one year. It was held that under the provisions of subsection 3 of article 8309 the trial court was authorized to submit to the jury and the jury was warranted, under the facts, in finding that the weekly wage was six times the daily wage. Application for a writ of error was dismissed. The facts are very similar to the instant case.

In the Bateman Case, supra, the injured employee had not worked for substantially the whole of the year immediately preceding his injury, and there was no proof of what any other employee who had worked substantially the whole of the preceding year in the same kind of work had received as average weekly wages. The injured employee received 35 cents an hour and worked 13 hours per day. In answer to a special issue the jury found that the average weekly wage was $25. It was held that the issue was proper under subsection 3, article 8309, and the finding was sustained.

In the Warner Case, supra, the injured employee had worked for only about 10 days when he was killed. He was getting $2.50 per day. In answer to a special issue the jury found that an average daily wage was $2.50 per day, and from this his weekly wage was computed. It was held that, under subsection 3 of article 8309, this was proper. A writ of error was granted and the judgment affirmed. (Tex Com. App.) 245 S. W. 664.

In the Russell Case, supra, the injured employee had been working only about 3 or 4 weeks when his injury occurred. He was working at a temporary job. He was receiving $2.70 per day, and worked 9 hours per day. It was held that the state of the evidence showed that his average weekly wages could not have been found by either of the modes provided in subsections 1 or 2 of article 8309, and therefore should be found in the manner prescribed by subsection 3 of said article.

Article 2190 (1985), R. S. 1925, provides that, when a case is submitted on special issues, the court shall submit all the issues made by the pleadings. However, it was recognized that this might not be done in all cases, and the statute specifically provides that failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. The statute further specifically provides that, upon appeal or writ of error, an issue not submitted and not requested to be submitted is deemed as found by the court in such manner as to support the judgment, if there...