This is a workmen's compensation case filed by Lonardo Villa against Commercial Standard Insurance Company. Based on the jury's verdict, judgment was entered in favor of the plaintiff for total and permanent incapacity resulting from an accidental injury sustained by him while in the course of his employment for Guy R. Simmons.
The insurance company has appealed, asserting the court erred (1) in overruling its motion for an instructed verdict (2) in overruling its motion for judgment non obstante veredicto (3) in submitting the issue on fair and just weekly wage (4) in overruling its motion to set aside the jury's answer to the wage rate issue and to declare a mistrial (5) in failing to fix the compensation rate at $9 per week (6) in fixing the compensation rate at $25 (7) in submitting the issue inquiring if the total incapacity was permanent (8) in denying its motion to disregard the jury's answer of permanent incapacity (9) in entering judgment for total and permanent incapacity and (10) in overruling its motion for a mistrial because the jury failed to answer the issue on partial incapacity.
The appellee's wage rate was established under subdivision 3 of Section 1 of Article 8309. It was conclusively established that appellee did not work substantially the whole of the year immediately preceding his injury. Appellant contends there was no evidence or, in the alternative, insufficient evidence to show there was no other employee of the same class as appellee who had worked substantially the whole of the year immediately preceding appellee's accident in the same or similar employment in the same or neighboring place to that in which appellee sustained his accidental injury.
That the burden rests upon the claimant to establish that it is impracticable to fix
He testified he was a residential building contractor and had been engaged in that business in and around Howard County and surrounding territory since 1949. He further testified appellee had been employed by him as a laborer and had worked for him off and on for several years and was regarded as a good worker. He further testified as follows:
Simmons, having been engaged in the building business since 1949, was in a position to know of his own knowledge whether or not laborers in that area had worked as many as 300 days during the year preceding appellee's injury.
The appellant offered no wage rate witnesses, but introduced in evidence the employment record of the appellee which showed that he earned $618.58 in 1956. Appellee's deposition wherein he testified that he made pretty close to $1,000 in 1956 was also introduced in evidence by appellant.
In the case of Texas Emp. Ins. Ass'n v. Ford, 153 Tex. 470, 271 S.W.2d 397, 399, the plaintiff was asked, "Do you know if any of those employees had worked for Lay Construction Co. for a period of a year preceding your accident?", and he answered, "No, sir." "Do you know if any employees in the same or similar employment in this neighborhood had been working for a year in that type of employment in which you were engaged?", and he answered, "No, sir." In construing this wage rate evidence, Judge Hickman said:
But, in the case at bar, which is clearly distinguishable from the Ford case, the wage rate witness testified to facts from which the court could determine that the appellee's wages could not be calculated under subdivision 2.
In the case of American General Insurance Company v. Hightower, Tex.Civ.App., 279 S.W.2d 397, 400, the attorney representing the claimant testified that he had made an extensive investigation in and around the area, where the claimant was injured, and that he did not find any employee engaged in the same type of work as the claimant who had worked substantially the whole of the year next preceding the date of the injury. Judge Long, speaking for the court, said:
In the recent case of I. C. T. Insurance Company v. Wineman, Tex.Civ.App., 308 S.W.2d 549, 551 (R.N.R.E.-3-12-58), the trial court had submitted issues number 15, 16 and 17 for the purpose of determining the wage rate under subdivisions 1, 2 and 3 of Section 1 of Article 8309. The jury answered issue number 15, but the court refused to accept the verdict because both parties admitted that subdivision 1 was not applicable under the evidence. The court sent the jury back to reconsider its verdict, with the additional instruction to answer special issue number 17 which was the one on fair and just wage under subdivision 3. Issue number 16 was the wage rate issue under subdivision 2. Chief Justice Hamilton, in discussing this case, said:
The appellant pleaded partial incapacity; evidence on this defense was introduced and the court unconditionally submitted it, but the jury failed to answer this issue. At the hearing on the motion for a new trial, there was a conflict in the testimony of the attorneys about how the judge read the issues and the jury's answers but the attorneys on both sides testified that before the verdict was officially received and the jury discharged they informed the court they had no objections to the court's receiving the verdict. Appellant's contention that the court erred in failing to declare a mistrial for the reason that the verdict was incomplete because the jury failed to answer the issue on partial
Appellant's points that the court erred in submitting special issue number 3, inquiring if total incapacity was permanent, and in denying its motion to set aside the jury's affirmative answer to this issue and entering judgment that appellee recover for total and permanent incapacity cannot be sustained. It appears from the record that the appellee's medical witness testified that his disability from his accident was 100 percent and that his condition was permanent and he further testified:
The appellee testified that he was 54 years of age and had worked since he was eighteen or nineteen years old; that he had never been injured on a job before; that he had never filed a claim for compensation before; that he returned to work for his employer after the injury and was able to work only about six and a half hours; that his employer laid him off because he was sick; that he didn't think his back and side were getting any better and that he had lost about thirteen or fourteen pounds since his accident.
In the case of Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, 774; (R.N.R.E.), the court held:
The appellee's testimony and the testimony of his medical witness raised a fact issue for the jury as to the duration of his incapacity.
We have considered all points raised by appellant and have concluded that there is no merit in any of them and they are accordingly overruled.
The judgment of the trial court is affirmed.