GRAY, Justice.
This is a workmen’s compensation case. Appellee was an employee of Lay 'Construction Company (later referred to as Lay), and appellant was the insurance carrier.
Appellee sued to recover compensation for total and permanent disability for accidental injury sustained by him in the course of his employment with Lay. He alleged that he and other employees were engaged in clearing the right of way along an easement for the construction of a telephone line in Milam County when a large tree fell across a road; that he and other employees were instrücted to remove the [193]*193tree from the road and that while so doing he suffered an accidental injury to the in-tervertebral disc between his fifth lumbar vertebra and sacrum which injury resulted in his total and permanent disability. He further alleged that his average weekly wage was $40. He alleged further that:
“ * * * if by reason of the shortness of the time of the employment of Plaintiff, or other employees engaged in the same class of work as Plaintiff was doing when injured, it be found that there were no other employees of the same class as Plaintiff at the dime of his injury who had worked in the same or similar employment in the same or a neighboring place for substantially the whole of the preceding year immediately prior to Plaintiff’s injuries, and that it is therefore impossible to compute the average weekly wage of this Plaintiff under either subsection 1 or 2 of section 1 of Article 8309, R.C.S.1925, as amended, then and in that event Plaintiff prays that his average weekly wage be computed ⅛ the Court or jury in any manner which may seem fair and just to both parties. And Plaintiff alleges that Forty And No/100 ($40.00) Dollars would be a sum as average weekly wage of this Plaintiff which would be just and fair to both parties.”
At the conclusion of the evidence before a jury appellant made' a motion for an instructed verdict which was overruled. The case was submitted to the 'jury on special issues, the verdiat was received and appellant made a motion for judgment non obstante veredicto. This motion was overruled, appellee’s motion for judgment on the verdict of the jury was granted and judgment was rendered awarding appel-lee recovery for total partial disability for 300 weeks at $21 per week.
Appellant assigns as error the action of the trial court in: overruling its motion for an instructed verdict; overruling its motion for judgment non obstante vere-dicto; submitting special issues 19, 20 and 21 to the jury; permitting appellee to answer a question relative to his average weekly wage; granting appellee’s motion for judgment, and in the alternative, refusing to render judgment for appellee for $8.10 per week for 300 weeks.
Appellant’s points are directed to, and are briefed in relation to that part of the judgment and record concerning appellee’s average weekly wage.
Appellee introduced his evidence as to his injury and rested without offering any evidence as to his average weekly wage. Appellant then made its motion for an instructed verdict on the grounds (1) that the evidence was insufficient to sustain a verdict for appellee, and (2) that there was no evidence, to sustain a verdict as to the average weekly wage of appellee,
Appellee was permitted to reopen his case. It was not error for the trial court to permit appellee to reopen his case and to hear additional evidence. Rule 270, Texas Rules of Civil Procedure,
Appellee testified that at the time of his injury he had worked for Lay four or five weeks; that he was not employed by Lay for a year prior to his injury; that he did not know of any employee who had worked as much as a year in the same or similar employment as' that in which he was working when injured; that prior to his employment with Lay he had been engaged in construction work of different kinds; that he did not know if any of Lay’s employees had worked for that company as much as a year prior tó hi? injury, and that he did not know of any employee who had been employed for as much as one year in the neighborhood in the same or similar employment as that in which he was engaged at the time of his injury. Appellee said that while working for Lay he received 80 cents per hour for ten hours work per day and that if he got in full time it would be six’days per week, and then related other work done by him for which he received from SO tO'9'0 cents per hour for ten hours per day. During the course' of his examination' appellee was asked:
[194]*194“Q. Based on your experience as a workman, engaged in that type of work, and your knowledge of working conditions in this area in which you have worked, tell the jury what a reasonable weekly wage would he for that type of work in this area?”
Appellant objected to the question for the reasons that:
“ * * * since it is not under subsection 3 of the Act, and he testified he did not know whether or not any employee had been working for Lay Construction Co. for the 12 months preceding; he testified he did not know whether or not anybody was engaged in the same or similar work for 12 months preceding, and it must be shown it does not come under those two sections before you can go into the last question propounded; the man says he did not know whether they did or did not work for a year.”
and further:
“ * * * We object to it for the further reason he has not testified to any fact which, would show that this witness knows what would be a fair average weekly wage for a man occupying the same position he wa,s occupying at that time.”
The objection was overruled and appel-lee answered “$40 or $50 is the average weekly wage.”
Four employees of Lay who were employed at the time appellee was injured and who were working with him testified as witnesses, but they were not asked, on direct or on cross examination, to testify as to the average weekly wages received by them and were not asked how long they had been employed by Lay.
Appellee’s testimony was sufficient to show that he could not qualify to receive compensation under either subsection 1 or subsection 2 of Sec. 1 of art. 8309, Vernon’s Ann.Civ.St., and it then became his burden to establish his average weekly wage under subsection 3 of- Sec. 1 of that article. Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W. 2d 1031, error dism.; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, on motion for rehearing page 359, error ref.
Appellee’s testimony was also sufficient to show prima facie that he had not worked for substantially the whole of a year in the employment in which he was engaged when injured and that there was no employee of the same class as appellee who had worked in similar employment for substantially the whole of a year immediately preceding the injury in the same or a neighboring place. Federal Underwriters Exchange v. Stewart, supra.
.Further the evidence was sufficient to show that appellee could not establish his average annual wage under subsections 1 or 2, supra, and to place upon him the burden of establishing his average weekly wage in a manner fair and just to both parties. Subsection 3.
It follows that appellant’s first objection was properly overruled.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAY, Justice.
This is a workmen’s compensation case. Appellee was an employee of Lay 'Construction Company (later referred to as Lay), and appellant was the insurance carrier.
Appellee sued to recover compensation for total and permanent disability for accidental injury sustained by him in the course of his employment with Lay. He alleged that he and other employees were engaged in clearing the right of way along an easement for the construction of a telephone line in Milam County when a large tree fell across a road; that he and other employees were instrücted to remove the [193]*193tree from the road and that while so doing he suffered an accidental injury to the in-tervertebral disc between his fifth lumbar vertebra and sacrum which injury resulted in his total and permanent disability. He further alleged that his average weekly wage was $40. He alleged further that:
“ * * * if by reason of the shortness of the time of the employment of Plaintiff, or other employees engaged in the same class of work as Plaintiff was doing when injured, it be found that there were no other employees of the same class as Plaintiff at the dime of his injury who had worked in the same or similar employment in the same or a neighboring place for substantially the whole of the preceding year immediately prior to Plaintiff’s injuries, and that it is therefore impossible to compute the average weekly wage of this Plaintiff under either subsection 1 or 2 of section 1 of Article 8309, R.C.S.1925, as amended, then and in that event Plaintiff prays that his average weekly wage be computed ⅛ the Court or jury in any manner which may seem fair and just to both parties. And Plaintiff alleges that Forty And No/100 ($40.00) Dollars would be a sum as average weekly wage of this Plaintiff which would be just and fair to both parties.”
At the conclusion of the evidence before a jury appellant made' a motion for an instructed verdict which was overruled. The case was submitted to the 'jury on special issues, the verdiat was received and appellant made a motion for judgment non obstante veredicto. This motion was overruled, appellee’s motion for judgment on the verdict of the jury was granted and judgment was rendered awarding appel-lee recovery for total partial disability for 300 weeks at $21 per week.
Appellant assigns as error the action of the trial court in: overruling its motion for an instructed verdict; overruling its motion for judgment non obstante vere-dicto; submitting special issues 19, 20 and 21 to the jury; permitting appellee to answer a question relative to his average weekly wage; granting appellee’s motion for judgment, and in the alternative, refusing to render judgment for appellee for $8.10 per week for 300 weeks.
Appellant’s points are directed to, and are briefed in relation to that part of the judgment and record concerning appellee’s average weekly wage.
Appellee introduced his evidence as to his injury and rested without offering any evidence as to his average weekly wage. Appellant then made its motion for an instructed verdict on the grounds (1) that the evidence was insufficient to sustain a verdict for appellee, and (2) that there was no evidence, to sustain a verdict as to the average weekly wage of appellee,
Appellee was permitted to reopen his case. It was not error for the trial court to permit appellee to reopen his case and to hear additional evidence. Rule 270, Texas Rules of Civil Procedure,
Appellee testified that at the time of his injury he had worked for Lay four or five weeks; that he was not employed by Lay for a year prior to his injury; that he did not know of any employee who had worked as much as a year in the same or similar employment as' that in which he was working when injured; that prior to his employment with Lay he had been engaged in construction work of different kinds; that he did not know if any of Lay’s employees had worked for that company as much as a year prior tó hi? injury, and that he did not know of any employee who had been employed for as much as one year in the neighborhood in the same or similar employment as that in which he was engaged at the time of his injury. Appellee said that while working for Lay he received 80 cents per hour for ten hours work per day and that if he got in full time it would be six’days per week, and then related other work done by him for which he received from SO tO'9'0 cents per hour for ten hours per day. During the course' of his examination' appellee was asked:
[194]*194“Q. Based on your experience as a workman, engaged in that type of work, and your knowledge of working conditions in this area in which you have worked, tell the jury what a reasonable weekly wage would he for that type of work in this area?”
Appellant objected to the question for the reasons that:
“ * * * since it is not under subsection 3 of the Act, and he testified he did not know whether or not any employee had been working for Lay Construction Co. for the 12 months preceding; he testified he did not know whether or not anybody was engaged in the same or similar work for 12 months preceding, and it must be shown it does not come under those two sections before you can go into the last question propounded; the man says he did not know whether they did or did not work for a year.”
and further:
“ * * * We object to it for the further reason he has not testified to any fact which, would show that this witness knows what would be a fair average weekly wage for a man occupying the same position he wa,s occupying at that time.”
The objection was overruled and appel-lee answered “$40 or $50 is the average weekly wage.”
Four employees of Lay who were employed at the time appellee was injured and who were working with him testified as witnesses, but they were not asked, on direct or on cross examination, to testify as to the average weekly wages received by them and were not asked how long they had been employed by Lay.
Appellee’s testimony was sufficient to show that he could not qualify to receive compensation under either subsection 1 or subsection 2 of Sec. 1 of art. 8309, Vernon’s Ann.Civ.St., and it then became his burden to establish his average weekly wage under subsection 3 of- Sec. 1 of that article. Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W. 2d 1031, error dism.; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, on motion for rehearing page 359, error ref.
Appellee’s testimony was also sufficient to show prima facie that he had not worked for substantially the whole of a year in the employment in which he was engaged when injured and that there was no employee of the same class as appellee who had worked in similar employment for substantially the whole of a year immediately preceding the injury in the same or a neighboring place. Federal Underwriters Exchange v. Stewart, supra.
.Further the evidence was sufficient to show that appellee could not establish his average annual wage under subsections 1 or 2, supra, and to place upon him the burden of establishing his average weekly wage in a manner fair and just to both parties. Subsection 3.
It follows that appellant’s first objection was properly overruled. Moreover, as was said in the Stewart case, supra “This matter was one about which both sides to the controversy had an equal opportunity to offer evidence”. [109 S.W.2d 1032.] Appellant went no further than to cross examine appellee as to the work in which he had been engaged and the wages received therefor. It made no inquiry of other employees of Lay as to their weekly wage or the length of their employment. Neither did it make any such inquiry of any other witness. Thus appellant raised little if any doubt as to the truth of ap-pellee’s testimony. The evidence was sufficient to discharge the burden resting on appellee. Southern Underwriters v. Boswell, Tex.Civ.App., 141 S.W.2d 442, affirmed Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280; Federal Underwriters Exchange v. Porterfield, Tex. Civ.App., 182 S.W.2d 847, error ref., w. o. m.
Appellee said he had lived in Cameron (Milam County) for about thirty years [195]*195and had been engaged in the construction business “a good many years.” And as already stated he related his employment and the wages he received. These facts afforded a standard for weighing appel-lee’s opinion that $40 or $50 would be the average weekly wage. The second objection was properly overruled. McCormick and Ray, Texas Law of Evidence, Sec. 628, p. 788; 19 Tex.Jur., Sec. 100, p. 151.
By issue 14 the jury found that appel-lee’s injury caused his partial incapacity to work. The jury was told that in the event they so answered issue 14 to answer issue 19 which asked them to find the “average wage earning capacity” of ap-pellee “during such partial incapacity.” The answer was $5 per week. Appellant objected to the submission of that issue because there was no evidence to justify its submission.
Appellant has not briefed this point and the same is waived. However, because of the judgment rendered appellant has not suffered injury because of the submission of the issue or the answer of the jury thereto.
In answer to issue 20 the jury found that there was no employee of the same class as appellee who had worked in the same or similar employment in the same or a neighboring place for substantially the whole of a year immediately prior to ap-pellee’s injury. And in answer to issue 21 found that appellee’s average weekly wage was $40 per week.
We have already discussed the evidence relative to issues 20 and 21. We think .the evidence raised. the issues and supports the jury’s answers thereto.
The jury found appellee’s partial disability to be 90 per cent and - that it was permanent.
Art. 8306, Sec. 11, Vernon’s Ann.Civ.St., provides:
“While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages be-for the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Twenty-five Dollars ($25) per week. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury.”
In rendering judgment the trial court apparently made his calculation under this section by-taking 60 per cent of appellee’s weekly wage of $35 ($40, issue 21 less $5, issue 19), and awarded appellee a recovery of $21 per week for 300 weeks.
It is obvious that appellant has not suffered injury by the calculation made upon the jury findings and section 11, supra. Texas Employees’ Ins. Ass’n v. Tanner, Tex.Civ.App., 218 S.W.2d 277, error ref., n. r. e.
It is our opinion that the trial court did not err in refusing' to render judgment for appellee for $8.10 per week for 300 weeks.
The judgment of the trial court is affirmed. ’
Affirmed.