Am. Employers' v. Singleton , 14 S.W.2d 939 ( 1928 )

I am unable to agree with my associates in the affirmance of the judgment in this case. The affirmance of the judgment is based upon the opinion of the Commission of Appeals in the case of Lumbermen's Association v. Warner, 245 S.W. 664. This opinion was not expressly approved by the Supreme Court, but we may, and probably should, assume that the adoption by the Supreme Court of the judgment recommended by the Commission of Appeals carried with it the approval of the construction given by the Commission of Appeals of article 8309, Revised Statutes 1925.

It seems clear to me that the opinion of the Commission of Appeals in the case cited is unsound if it be construed to hold that, under the article cited, an employee who had worked less than a substantial portion of a year immediately preceding his injury would be entitled to receive compensation for 300 weeks at the average daily wage theretofore received from his employer, without further evidence of his earning capacity. I do not think this is the necessary construction to be placed on that opinion. Other evidence as to the earning capacity of the injured employee is set out in the opinion of the Commission of Appeals, and I am persuaded that it was upon this evidence that the learned judge who wrote that opinion held that the evidence was sufficient to sustain the amount of compensation awarded by the trial court. As I interpret this statute, when the injured employee has only worked in the employment in which he was engaged at the time of his injury for less than a substantial portion of the year immediately preceding the injury, he is not entitled to receive compensation based upon his average daily wage earned during his employment, in the absence of other evidence as to his earning capacity. If the statute be construed in accordance with appellee's contention, the clause which only permits the average daily wage received by the employee in the employment in which he was engaged at the time of injury to be taken as the basis for his compensation when he has worked in such employment a substantial part of the immediately preceding year, is practically nullified.

Under such construction the statute means that you can take the average daily wage for any time, however short it may have been, that the employee had worked for the subscriber immediately preceding his injury, as a basis for compensation when no other basis is shown by the evidence. This seems to me to be an unreasonable construction of the language of the statute which, in my opinion, in such circumstances, plainly requires additional evidence as to the earning capacity of the employee to authorize a finding by a trial court or jury of the amount of compensation to which the injured employee is entitled.

I think appellant's assignment, which complains of the verdict on the ground that the evidence is insufficient to sustain the finding by the jury of the amount of compensation due appellee should be sustained.

I agree with my associates that the trial court did not err in refusing the special issue requested by appellant. I do not agree, however, that this question is affected by the failure of appellant to specially plead that the death of appellee's husband was caused by disease and was not due or contributed to by the accidental injury sustained in the course of his employment. Such defense being only negative of the claim of appellee that the death of her husband was caused by the accidental injury sustained by him in the course of his employment, it was clearly available under a plea of general denial.

The cause having been submitted on special issues and the court having submitted to the jury the question of whether the death of the deceased was caused by the accidental injury, he was not required to submit the purely negative issue of whether it was not due to disease.

In the recent case of Hoover v. Hamilton, 14 S.W.2d 935, the views of this court on this question are more fully stated.

I think the motion for rehearing should be granted, the judgment reversed, and the cause remanded.