Texas Employers' Ins. Ass'n v. Lightfoot , 158 S.W.2d 321 ( 1941 )

SMITH, Chief Justice.

Mack C. Lightfoot recovered judgment under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq., as for permanent total incapacity alleged to have resulted from injury sustained by him in the course of his employment as a pipe line worker. Texas Employers’ Insurance Association, the insurance carrier, has appealed.

The briefs for both parties were filed in this Court after the effective date of the new rules for court procedure in this State, but neither party observed those rules. Without holding- outright that the parties were required to comply with the new rules in this case, we take this early opportunity to say that the mere fact that a case was tried, or judgment rendered, or appeal perfected prior to September 1, 1941, does not warrant the parties in briefing such case under the old rules. On the contrary, strictly speaking, they should resort to the new rules in preparing briefs to be filed after September 1st.

In Workmen’s Compensation cases the injured employe’s compensation must be computed by one of three alternative formulas: 1st. Upon the basis of the average weekly wage the employee shall have earned in like employment in the same vicinity during the preceding year, if he shall have worked in such employment substantially throughout that period. 2nd. If not so employed that length of time, his compensation shall be determined by the average weekly wage of other employees, if any, so employed in that vicinity during such period. 3rd. If neither he nor others have been so employed in that vicinity for such period, then his compensation shall be computed “in any manner which may seem just and fair to both parties.” The employe cannot resort to the third formula unless he first shows that the conditions authorized in the first and second alternatives do not exist. In this case it is conceded that appellee did not work for substantially the whole of the year next preceding his alleged injury, whereby he vv-as relegated to the second formula. He thereby assumed the burden of showing that neither he nor any other employe of the same class had been employed in similar work in that vicinity for approximately 300 days next preceding his alleged injury. American Employers’ Ins. Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26. The jury found in favor of ap-pellee on that issue. This Court is unanimous in the conclusion that the evidence was insufficient to support this finding, or authorize the submission of that issue. Texas Employers Ins. Ass’n v. Ebers, Tex.Civ.App., 134 S.W.2d 797. The issue was vital, and the unsupported finding thereon requires reversal, in which all concur.

The writer, however, is of the opinion that the judgment must be reversed for an additional vital reason. Under the jury’s erroneous finding that no other employe in appellee’s class had worked in similar employment in that vicinity for approximately 300 days next preceding ap-pellee’s injury, appellee was relegated to the third alternative, which authorized the jury to compute “the average weekly wages * * * in any manner which may seem just and fair to both parties.” Under this formula the jury found, in answer to special issue No. 10, that $31.60 was a fair and just weekly wage for appellee. The judgment conformed to this finding.

In its motion for new trial appellant alleged jury misconduct and a hearing was had thereon. The transaction is briefly, but well, disclosed in the following recital in the trial judge’s order overruling the motion: “ * * * the foreman, L. E. Eguia, informed the jury, while the jury was discussing how to answer Special Issue No. 10, that the Wages and Hours Act gave a man forty hours per week, and that such standard was the rule, and the jury accordingly used forty hours, multiplied by seventy-nine cents per hour, in arriving at its finding of $31.60 average weekly wage, but the Court finds, as a matter of law, that such act was not misconduct.”

In its first proposition appellant has briefed this question of jury misconduct, which must be decided here.

We have concluded that reversible error is shown. In the first place, the record shows that the Wage and Hour Act, (Fair Labor Standards Act, 1938) 29 U.S.C.A. § 201 et seq., does not apply to the class of work in which appel-lee was employed. Even if the Act had applied, it simply fixes forty hours a week as a maximum and could not possibly create a presumption or support a finding that a particular employe, such as ap-pellee, whether covered by the Act or not, worked or would' have worked forty hours a week in a given situation, such as in this case. Moreover, there is no evidence in this record to support an inference that appellee or any one in his class could or would have secured or engaged in work employing him for as much as forty hours a week. On the contrary, the record negatived that fact, and indicated, rather, that none in that class worked more than thirty-six hours a week in that vicinity. But the jury, apparently in sole response to the foreman’s improper and ill-advised pronouncement, adopted a forty hour week as the basis of their award to appellee. It is obvious that the foreman’s statement, coupled with the jury’s use of it, amounted to misconduct, as a matter of law, and it is equally obvious that the misconduct was harmful and prejudicial to appellant, whose liability was measured and assessed by the false yardstick laid down by the jury in direct consequence of the misconduct.

The harmful effect of the misconduct may be emphasized by a simple calculation: The jury found a fair and just hourly wage was seventy-nine cents, which) multiplied by forty hours, made a weekly wage of $31.60, as found by the jury. The highest estimate in the evidence of the number of hours worked per week by employees in appellee’s class was thirty-six. Adopting thei hourly wage rate found by the' jury, seventy-nine cents, and multiplying it by thirty-six hours, the maximum estimate of hours worked by such employees, the result would show a weekly wage of only $28.44, or a difference of $3.16 per week. That difference added several hundred dollars to the amount appellee recovered.

The judgment is reversed and the cause remanded.