BOND, Chief Justice.
This is a workman’s compensation case. De George’s Restaurant was the employer, Ardell Davis the employe, and Aetna Casualty & Surety Company the insurer. Davis sought compensation for 75 per cent partial loss of vision in his left eye and 25 per cent partial loss of vision in his right eye, claimed to have resulted “when on or about the first day of January 1944, some lye-water with which he was washing pots and pans (restaurant kitchen utensils) splashed into his left eye.” During the trial Davis filed new pleadings claiming 100 per cent total and permanent loss of his vision in the left eye. As a result of trial to a jury, judgment was entered for total and permanent loss of vision in the left eye and 7 per cent partial permanent loss of vision in the right eye — all based on a compensation rate of $26 as Davis’s “average weekly wage” during the year immediately preceding date of injury.
Appellant predicates error on the findings of the jury and judgment of the court that Davis’s “average weekly wage” during the year immediately preceding his injury was $26, as having no support in evidence to justify such verdict and judgment for compensation liability in the sum of $15.60 for 100 weeks for total and permanent loss of vision in his left eye, and for $1.09 for 100 weeks for 7 per cent permanent partial disability of his right eye.
The evidence is uncontroverted that, at the time of Davis’s alleged injury, he was a dish or pot washer at De George’s Restaurant and had been so engaged for nearly two months before he got hurt; that during the year before he was employed at De George’s, he was steadily engaged 8 or 9 months in washing and cleaning baking machinery, cooking utensils and mixers for Wonder Bread Baking Company and other bakeries in the City of Dallas; that his weekly wage at De George’s was $20 for a six-day week, $3 for the extra day, and two meals equivalent to $3 per week, making his total average $26 per week. There is no evidence, other than the negative testimony of Davis and an auditor or bookkeeper for a number of restaurants in the City of Dallas, that they did not know of any other employe of the same class as Davis who had worked substantially the whole of the immediate preceding year in the same or similar employment; and Davis did not give evidence as to what he received for the 8 or 9 months before working for De George’s Restaurant.
The jury, in answer to special issues 1, 2, 3, 4 and 5, found in effect that Davis sustained total and permanent incapacity to his left eye and 7 per cent partial and permanent incapacity to his right eye, as a natural result of the accidental injury; and to issues 12, 13 and 16, that Davis had worked in the same class of employment as that in which he was working at time of his injury, substantially the whole of the year immediately preceding the date of such injury, at an “average weekly wage” of $26 per week, designating such wage as being “just and fair to both parties.”
The “average weekly wage” of Ardell! Davis was, in pleadings and evidence, a disputed fact issue. The trial court recognized the dispute by submitting contingent special issues 14 and 15 (to be answered by the jury only in event of negative answers to 12 and 13), as to whether Davis had worked substantially the whole of the year, and whether or not there were other employes of the same class as plaintiff who> had worked substantially the whole of the year immediately preceding the date of plaintiff’s injury, in the same or similar employment as that engaged in by Ardell Davis, and, if so, the amount of such wages. Thus having submitted, although conditionally, the alternative issues, the presumption must be indulged that there was evidence satisfactory to the court to sustain such
submission. Patterson v. Texas Employers Ins. Ass’n, Tex.Civ.App., 188 S.W.2d 778, Tex.Sup., 192 S.W.2d 255. These alternative contingent issues, 14 and 15, were not answered by the jury; hence the jury had no scale or guide from which to compute weekly wage findings for the claimant
Under Art. 8309, sec. 1, subsection 1, it is provided, in effect, that if the injured employe shall have worked in the same employment in which he was engaged at the time of the injury substantially the whole of the year preceding such injury, his average annual wages shall be thus computed. Subsection 2 provides that if the injured employe shall not have worked in the same employment during substantially the whole of the year preceding the injury, his average weekly wage shall be computed from the employment of other employes working in the same class of work, in the same or a neighboring place. Subsection 3 provides that if neither of the subsections 1 and 2 are applicable, or if they are impracticable to compute the average weekly wage, then it shall be computed by the court in any manner which may seem “just and fair to both parties.” In the case of American Employers Ins. Co. v. Singleton, 24 S.W.2d 26, 27, the Supreme Court laid down the rule that has been followed ever since: “Under the express provisions of section 5 of article 8307, R.C.S. of Texas 1925, the burden of proof is on * * * a party claiming compensation, to offer legal evidence establishing an average weekly wage * * * under one of the three subsections of the statute above quoted. Furthermore, under the statute the burden is on the claimant to show by competent evidence that it is impracticable to compute the average weekly wage under either subsections 1 or 2 before subsection 3 can be resorted to. Likewise, the burden is on the claimant to show that compensation cannot be computed under subsection 1 before subsection 2 is resorted to.”
In this case, it having affirmatively appeared that Davis worked 2 months at De George’s Restaurant and 8 or 9 months at Wonder Bakery and other bakeries in the same class of employment as he did at De George’s, in absence of proof as to what he received for the 8 or 9 months, the jury was without a basis to compute his average weekly wage. It might be said under some circumstances that the negative testimony of Davis and an auditor for restaurants in Dallas that they did not know of any other person in the same or a neighboring place who worked substantially a year before the injury, would raise an issue to compute the wage under subsection 3, as was done by the jury; but, where the claimant himself testified that he had worked practically the whole year, and offered no evidence whatsoever to overcome the requirements of subsection 1 as to make subsection 2 or 3 available for computation of his wage, the jury could not determine the “average weekly wage,” under subsection 3. It was incumbent on the injured employe to come under that subsection, to show not only that he did not work substantially the whole of the year immediately preceding the injury, but also to show that no other person had worked substantially the whole of the year. If he did work the year, as he testified, it was incumbent upon him to show his earnings, or salary, for that time, thus coming under subsection 1.
Furthermore, appellant challenged the form of special issues 2 and 3 pertaining to “total and permanent incapacity of Davis’s left eye” and the supplementary charge incident to such issues.
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BOND, Chief Justice.
This is a workman’s compensation case. De George’s Restaurant was the employer, Ardell Davis the employe, and Aetna Casualty & Surety Company the insurer. Davis sought compensation for 75 per cent partial loss of vision in his left eye and 25 per cent partial loss of vision in his right eye, claimed to have resulted “when on or about the first day of January 1944, some lye-water with which he was washing pots and pans (restaurant kitchen utensils) splashed into his left eye.” During the trial Davis filed new pleadings claiming 100 per cent total and permanent loss of his vision in the left eye. As a result of trial to a jury, judgment was entered for total and permanent loss of vision in the left eye and 7 per cent partial permanent loss of vision in the right eye — all based on a compensation rate of $26 as Davis’s “average weekly wage” during the year immediately preceding date of injury.
Appellant predicates error on the findings of the jury and judgment of the court that Davis’s “average weekly wage” during the year immediately preceding his injury was $26, as having no support in evidence to justify such verdict and judgment for compensation liability in the sum of $15.60 for 100 weeks for total and permanent loss of vision in his left eye, and for $1.09 for 100 weeks for 7 per cent permanent partial disability of his right eye.
The evidence is uncontroverted that, at the time of Davis’s alleged injury, he was a dish or pot washer at De George’s Restaurant and had been so engaged for nearly two months before he got hurt; that during the year before he was employed at De George’s, he was steadily engaged 8 or 9 months in washing and cleaning baking machinery, cooking utensils and mixers for Wonder Bread Baking Company and other bakeries in the City of Dallas; that his weekly wage at De George’s was $20 for a six-day week, $3 for the extra day, and two meals equivalent to $3 per week, making his total average $26 per week. There is no evidence, other than the negative testimony of Davis and an auditor or bookkeeper for a number of restaurants in the City of Dallas, that they did not know of any other employe of the same class as Davis who had worked substantially the whole of the immediate preceding year in the same or similar employment; and Davis did not give evidence as to what he received for the 8 or 9 months before working for De George’s Restaurant.
The jury, in answer to special issues 1, 2, 3, 4 and 5, found in effect that Davis sustained total and permanent incapacity to his left eye and 7 per cent partial and permanent incapacity to his right eye, as a natural result of the accidental injury; and to issues 12, 13 and 16, that Davis had worked in the same class of employment as that in which he was working at time of his injury, substantially the whole of the year immediately preceding the date of such injury, at an “average weekly wage” of $26 per week, designating such wage as being “just and fair to both parties.”
The “average weekly wage” of Ardell! Davis was, in pleadings and evidence, a disputed fact issue. The trial court recognized the dispute by submitting contingent special issues 14 and 15 (to be answered by the jury only in event of negative answers to 12 and 13), as to whether Davis had worked substantially the whole of the year, and whether or not there were other employes of the same class as plaintiff who> had worked substantially the whole of the year immediately preceding the date of plaintiff’s injury, in the same or similar employment as that engaged in by Ardell Davis, and, if so, the amount of such wages. Thus having submitted, although conditionally, the alternative issues, the presumption must be indulged that there was evidence satisfactory to the court to sustain such
submission. Patterson v. Texas Employers Ins. Ass’n, Tex.Civ.App., 188 S.W.2d 778, Tex.Sup., 192 S.W.2d 255. These alternative contingent issues, 14 and 15, were not answered by the jury; hence the jury had no scale or guide from which to compute weekly wage findings for the claimant
Under Art. 8309, sec. 1, subsection 1, it is provided, in effect, that if the injured employe shall have worked in the same employment in which he was engaged at the time of the injury substantially the whole of the year preceding such injury, his average annual wages shall be thus computed. Subsection 2 provides that if the injured employe shall not have worked in the same employment during substantially the whole of the year preceding the injury, his average weekly wage shall be computed from the employment of other employes working in the same class of work, in the same or a neighboring place. Subsection 3 provides that if neither of the subsections 1 and 2 are applicable, or if they are impracticable to compute the average weekly wage, then it shall be computed by the court in any manner which may seem “just and fair to both parties.” In the case of American Employers Ins. Co. v. Singleton, 24 S.W.2d 26, 27, the Supreme Court laid down the rule that has been followed ever since: “Under the express provisions of section 5 of article 8307, R.C.S. of Texas 1925, the burden of proof is on * * * a party claiming compensation, to offer legal evidence establishing an average weekly wage * * * under one of the three subsections of the statute above quoted. Furthermore, under the statute the burden is on the claimant to show by competent evidence that it is impracticable to compute the average weekly wage under either subsections 1 or 2 before subsection 3 can be resorted to. Likewise, the burden is on the claimant to show that compensation cannot be computed under subsection 1 before subsection 2 is resorted to.”
In this case, it having affirmatively appeared that Davis worked 2 months at De George’s Restaurant and 8 or 9 months at Wonder Bakery and other bakeries in the same class of employment as he did at De George’s, in absence of proof as to what he received for the 8 or 9 months, the jury was without a basis to compute his average weekly wage. It might be said under some circumstances that the negative testimony of Davis and an auditor for restaurants in Dallas that they did not know of any other person in the same or a neighboring place who worked substantially a year before the injury, would raise an issue to compute the wage under subsection 3, as was done by the jury; but, where the claimant himself testified that he had worked practically the whole year, and offered no evidence whatsoever to overcome the requirements of subsection 1 as to make subsection 2 or 3 available for computation of his wage, the jury could not determine the “average weekly wage,” under subsection 3. It was incumbent on the injured employe to come under that subsection, to show not only that he did not work substantially the whole of the year immediately preceding the injury, but also to show that no other person had worked substantially the whole of the year. If he did work the year, as he testified, it was incumbent upon him to show his earnings, or salary, for that time, thus coming under subsection 1.
Furthermore, appellant challenged the form of special issues 2 and 3 pertaining to “total and permanent incapacity of Davis’s left eye” and the supplementary charge incident to such issues. Issues 2 and 3 make inquiry as to whether or not Davis sustained “total and permanent
incapacity
of his eye,” and the charge submitted is: “You are instructed that the phrase ‘total incapacity of his eye’ as used in the Court’s charge means total loss of use of the eye; it does not imply an absolute disability to perform any kind of labor, but such incapacity of the eye that'it disqualifies a person from performing the usual task of a workman in such a way as to enable him to procure and retain employment requiring the use of the eye, is ordinarily regarded as total incapacity of the eye.” Appellant excepted to the charge and the issues submitted as being beside the record, the evidence being insufficient to show the loss of vision in his left eye, and incompetent to show that his eye could not be materially benéfited, if not restored to normal, by the use of eyeglasses; and
sought to have the court submit in the charge as to whether Davis sustained total and permanent "loss of the sight of his eye” instead of the issue as submitted for “total and permanent
incapacity
of the eye”; and also to include in the definition of “total loss of vision” that it is such vision as “could not be benefited or restored to normal by the use of glasses.”
Article 8306, § 12, of the Workmen’s Compensation Act, provides: “For the total and permanent loss of the sight of one eye, sixty per cent of the average weekly wages during one hundred weeks * * It will be seen that compensation for total and permanent loss of the sight of one eye is not measured by the lessened earning capacity of the injured employe, or that such loss of sight had to be such as to disqualify the person from performing the usual tasks of a workman. Incapacity to labor is not a condition precedent to compensation for total and permanent loss of the sight of one eye. Total and permanent loss of the sight of an eye is compensable regardless of whether or not the employe shall be able to perform any task of a workman. It is a specific injury for which specific compensation is provided. So when the court instructed the jury, in effect, that the “total
incapacity
of Davis’s left eye” implied the incapacity to labor as to disqualify him from performing the usual tasks of a workman, it lessened the burden on plaintiff to prove his total and permanent loss of use of the sight. The burden was upon the claimant to show by preponderance of the evidence that he lost the total and permanent sight of his left eye in the course of his employment; that is, that his eye had no usable vision as a result of his injury. The evidence having raised the issue of whether usable sight did exist, and, if usable, either with or without glasses, the claimant could not recover for total and permanent loss of the sight of the eye. If the use of glasses would restore the sight to normal, or to a usable degree below normal, certainly it could not be said that the loss of sight was total and permanent. Total and permanent loss of the sight of an eye, that is, usable sight, must be such that the sight is gone, all of the sight to the extent that it could not be restored in any usable degree.
In Cline v. Studebaker Corporation, 189 Mich. 514, 155 N.W. 519, 521, L.R.A.1916C, 1139, under facts similar as here, the Supreme Court of Michigan held: “Under these circumstances it seems impossible to say that the injury has resulted in the loss of the eye. The use of glasses is a very ordinary occurrence, both by the young and the old. It is unnecessary to determine whether the loss of 90 per cent, of the sight is substantially the loss of the eye, because that is not the present case. Ninety per cent, of the sight is not lost when it can be diminished to 50 per cent, by the use of common appliances. And it is the duty of the sufferer to minimize the injury as much as he reasonably may.” See also Valentine v. Sherwood, etc., 189 App.Div. 410, 178 N.Y.S. 494. So, in Travelers Ins. Co. v. Richmond, Tex.Com.App., 291 S.W. 1085, 1086, another fact case similar as here, our Supreme Court said: “Vision is considered to be a sense for the use of which the eye is a designed agency, and it is to be assumed that the faculty itself remains even though an essential agency be completely destroyed. If the agency be but impaired, the faculty is but thwarted pro tanto. For such a case as that before us science has devised appliances which, in substantial part at least, supply the destroyed parts of the
agency
which nature designed. Through these artificial means, or through those means employed in aid of nature, the sense functions. A solecism exists in a declaration that that which may be recovered is lost, and there is manifest contradiction of terms is saying that a sense, or emotion, which is merely suspended in whole or part for a time and which becomes active again is permanently lost. In our view, the record exhibits undoubted proof that ‘the sight of one eye’ is not totally and permanently lost’.”
It will be further seen from the record before us that Davis did not testify to any impairment of his ability to work because of the loss of eyesight, and the statute does not award compensation measured by the lessened ability to work. The allowance is made under the schedule of fixed
liabilities. Davis’s eyes were examined for loss of sight by Doctors Harrington, Knowles, and Brann, eye, ear, nose and throat specialists. Dr. Harrington made tests separately and in the presence of a Dr. Jenkins, aimed to discover how much the claimant could see when using proper eyeglasses, and found that with this assistance he had normal vision in both eyes on January 26, 1944, and on date of trial. The doctor testified that on January 14, 1944, when he first examined Davis, his vision was 20/80, that is, he could see at 20 feet what he normally should see at 80 feet, as the result of chronic myopia (nearsightedness) ; and the doctor further testified that he, with a Dr. Jenkins, found no resulting defect in either of Davis’s eyes, his sight was 20/20, or normal, with the use of glasses. Dr. Knowles made similar •tests, separately from the other doctors, also with a view to discovering the degree of vision in Davis’s eyes, and testified that he found Davis suffering from nearsightedness, that at his age (45) the condition of his eyes was what one would expect to find in a man of that age, thajj h.e found no scar or scar tissue on the eye, and that upon tests, found that glasses would improve his sight. Dr. Brann examined Davis on April 19, 1944, gave evidence of injury to his left eye, that at that time the vision in the left eye was about 20/80 (one-third normal), and that his right eye was normal; testified that on February 19, 1945, he' again examined Davis’s eyes, and said that in his opinion the left eye “for all practical purposes, for useful purposes, is practically nil * * * practically nothing. Could see light and see outlines of a big object.” He testified further that in the right eye — due to strain “because it is doing all the work, being constantly used” — the loss of sight at that time was about 6 or 7 per cent. On cross-examination, Dr. Brann testified that he made no particular effort to treat Davis’s eyes, only outlined treatment with ointment, and made no tests to see whether glasses would improve his vision. He said that in his opinion glasses would not improve Davis’s left eye, but might help the right eye. But as to this, he would not say how much glasses would help, “because it is utterly impossible to say”; indeed, he said glasses would “take the strain off of that eye,” but that he had doubts as to whether glasses would help the" vision in the left eye, and could not know about that until he tried glasses. In the course of trial, attorneys for both parties seem to have agreed for the court to appoint two physicians to examine claimant’s eyes, choice of selection accorded to each side respectively. Dr. Harrington and Dr. Jenkins were selected to serve. Dr. Harrington, witness for defendant, gave the testimony as related above; Dr. Jenkins; although available, was not called, but Dr. Harrington testified, without objection, that he examined claimant in the presence of Dr. Jenkins, and that Dr. Jenkins examined claimant’s eyes and said to him that “he found nothing wrong with the eyes.”
It will be seen that the positive net result of the vision tests made by the two medical experts was, that with the aid of glasses claimant had normal sight; that the opinion of the one medical expert, who made no test with glasses, was to the effect that the vision in the left eye would not be improved, but that glasses might be helpful to the right eye by relieving strain in that eye.
We think it clear that appellant was entitled to have the court’s charge include the effect of glasses as touching the usability of the sight of the eyes, and that the court erred in limiting the charge in defining “total incapacity of Davis’s eyes,” implying disqualification to work, and in failing to include therein the effectiveness of glasses in determining the loss of vision. Furthermore, the court erred in submitting special issue 16 for tire jury to determine the employe’s “average weekly wage” under the 3rd subsection, Art. 8309, § 1, and the instructions incident thereto. “Special Issue 16. From a preponderance of the evidence, what sum of money do you designate as the average weekly wage of the plaintiff, Ardell Davis, which,you deem just and fair to both parties, plaintiff and defendant ? * * * Answer: $26.00 per week.” The instruction given in connec-' tion with the issue: “In connection with the foregoing special issue you are instructed that you may determine the weekly
wage in any way and manner that seems just and fair to both parties under the evidence, and his wages may include the market value of board and other advantages which can be estimated in money which the employe receives from the employer as part of his remuneration.” Evidently the finding of the jury that appellee’s “average weekly wage” was “fair and just to both parties” is based on the wages appel-lee had been receiving from De George’s, for whom he had worked two months at the'time of his injury; and, under the charge of the court, the $26 is the only amount the jury could have found. The language “in any manner which seems just and fair,” as used in the statute, fixes a general but not an arbitrary rule for computing “average weekly wages.” “Such wages should be ascertained from all the facts and circumstances pertinent to such issue in order to impartially determine the compensation in a manner legally fair and just.” Texas Employers Ins. Ass’n v. Van Pelt, Tex.Civ.App., 68 S.W.2d 514, 516. The wages should not be determined, as stated in the court’s charge, by the employe’s “wages to include the
market value
of board and other advantages which can be estimated in money,” etc., in the light of the testimony in this case. The injured employe worked for De George’s Restaurant only two months as a dish or pot washer, at an amount made up of three items: $20 weekly wages, $3 value of meals, and $3 for the extra day in the week, making the total $26. No other fact or circumstance was presented to the jury in determining the issue as would be “fair and just to both parties.” In limiting the consideration of these items to the time of the claimed injury, the court might as well have stated and instructed the jury that, as a matter of law, the “average weekly wage” of appellee is $26 and they should find accordingly. Davis having worked 8 or 9 months during the year before he was employed at De George’s Restaurant, in the same class of employment, in absence of testimony as to his average weekly wage for that length of time, the jury should not be allowed to speculate that his average weekly wage should be determined under the 3rd subsection of the statute. We think it was not impracticable to compute the average weekly wage as defined in the 2nd subsection, had appellee disclosed his earning or salary for practically the year before his injury, which he is compelled to do in order to give the jury some basis for finding the wage.
Appellant presents point of error in the Court’s action in permitting the plaintiff to testify that he had a son in the army overseas. When plaintiff was placed on the witness stand, about the first question propounded to him, answers and exceptions thereto, were as follows:
“Q. Do you have a son who is now overseas in the service? A. Yes, sir.
“Mr. Bailey: We object to that. I don’t see it has any bearing. That doesn’t show this boy got hurt.
“Mr. Yarborough: It shows the credibility of the witness.
“The Court: Overruled.
“Mr. Bailey: Note our exception.
“Q. (By Mr. Yarborough) : How long has he been overseas? A. It will soon be two years.
“Mr. Bailey: Note our exception for the same reason.
“The Court: Overruled.
“Mr. Bailey: Note our exception.”
Manifestly, the evidence is not admissible for any purpose in this case other than to effect sympathy or bias in favor of the soldier’s father; the mere fact that the son was in the army overseas for two years could have no appreciable effect touching the credibility of the father and the weight to be given his testimony on the issues involved in this suit. On another trial such prejudicial error may not occur; and, in view of this being the second admonition of error for such matters American Employers Ins. Co. v. Kellum et al., Tex.Civ.App., 185 S.W.2d 113, we may expect proper observance of the rules of evidence to avoid such occurrences that the trial may be free of prejudicial disclosures.
From the record above related, the judgment of the court below is reversed and cause remanded.
Reversed and remanded.