Juan V. Garcia sued Aetna Casualty & Surety Company for compensation under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq. He was injured in the course of his employment with Farnsworth & Chambers Co., Inc. Garcia has appealed because the court restricted him to a fifteen per cent partial incapacity instead of a twenty-five per cent partial incapacity, which employee contends the jury found, and also because the court excluded certain proof that the plaintiff had worked after the accident under the whip of necessity.
Garcia, the employee, alleged that he suffered total incapacity for a period of eight weeks, followed by fifteen per cent partial and permanent incapacity. The jury found that the employee suffered twenty-five per cent partial incapacity for eight weeks. The court restricted the employee to the fifteen per cent partial incapacity for the eight weeks. In our opinion, while employee pleaded fifteen per cent incapacity, he also pleaded eight weeks total incapacity. The pleading of the total incapacity for the eight-week period was broad enough to embrace the finding of twenty-five per cent partial incapacity. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280; Texas Employers' Ins. Ass'n v. Moyer, Tex. Civ.App., 236 S.W.2d 231; Texas Employers' Ins. Ass'n v. Mallard, Tex.Civ.App., 192 S.W.2d 302; Traders & General Ins. Co. v. Diebel, Tex.Civ.App., 188 S.W.2d 411; Texas Employers' Ins. Ass'n v. Drayton, Tex.Civ.App., 173 S.W.2d 782. Accordingly, the judgment should be reformed so that employee will recover for a twenty-five per cent incapacity for a period of eight weeks instead of a fifteen per cent incapacity. The judgment is reformed so that employee will recover $127.20 plus interest.
Employee's other point complains that the court refused to permit him to explain that he had performed work after the accident by force of economic necessity. In Muro v. Houston Fire and Casualty Insurance Co., Tex.Civ.App., 310 S.W.2d 420, this Court held that when a defendant admits hardship with respect to the lump sum payment of compensation, but then proves the nature and extent of the plaintiff's employment after the accident, the plaintiff may explain that he worked by force of economic necessity. We fail to see how the employee was injured in this case, however. When we compare the evidence which was presented to the jury with that developed in the bill of exception, it appears that the employee
The judgment is reformed and affirmed. Costs are adjudged against the appellee.