38 S.W.2d 169 | Tex. App. | 1931
This was an action by the Fidelity Union Casualty Company against Mose Carey and others to set aside an award of the Industrial Accident Board. The case was submitted to a jury on special issues, and the court, on the answers of the jury, entered judgment for the defendants. The plaintiff appeals.
The appellant complains of the action of the court in refusing to give an instructed verdict for the insurance company. Mose Carey was an employee of Fred Hall. Hall was a teaming contractor hauling for the public, and in connection therewith had a contract to haul swill from the city of Mexia. This was an industrial vocation and was within the terms of the Workmen's Compensation Act. Hall carried compensation insurance in the appellant company. Mose Carey was stable man or general corral boss, and it was his duty to drive up the work stock in the morning, feed and harness the teams, repair harness, etc. However, Hall was also engaged in the business of raising, feeding, and shipping hogs which was a farming industry for which he could not and did not carry workmen's compensation. Gordon v. Buster,
Appellant's first contention is that the evidence does not sufficiently show in which of these occupations appellee was engaged at the time of his injury. The evidence shows that appellee used two small horses in hauling the swill from the city of Mexia with which the hogs were fed. All of the work stock was kept in a pasture consisting of about 123 acres. At the time Carey was injured he had gone to the pasture for the purpose of corralling the work stock or at least some of them. He was riding one of the small horses used in hauling swill. While attempting to drive one or more of the horses to the barn, he was thrown, and as a result he was totally and permanently injured. There was no evidence as to which of the horses Carey was after at the time of the injury nor for what specific purpose the horse was to be used after he had been driven to the corral. Appellant insists that, since Carey was riding one of the small horses used in hauling swill, and since he was after only one other horse, we must infer that he was after the other horse usually used in hauling swill, and that the horses were being corralled for the purpose of hauling swill; and, since the swill was to be used in feeding the hogs, he was not engaged in an insurable occupation at the time of the injury. We do not think that the evidence would justify this court in drawing the many inferences contended for by the appellant, as this would clearly be the pyramiding of one presumption on another. Missouri Pac. Ry. Co. v. Porter,
If the appellant had thought there was sufficient evidence to raise the inference that Carey was engaged in the hog-raising enterprise at the time of the injury, it should have requested an issue submitting the question to the jury, and allowed the jury to draw the inference. No such issue was requested and no objection made to the issue as submitted. Since the trial court rendered judgment for the appellees, it will be presumed that the court found that Carey was injured while he was engaged in the industrial occupation for which the insurance was carried. Embrey v. Ligon Co.,
Appellant's second contention is that the evidence does not sufficiently show the average weekly wage of the injured employee. The appellee alleged that he earned $3 per day, and that his average weekly wage was $18 per week, working 6 days per week, and that his average annual wage was $936. The jury found that his average daily wage was $3 per day and his average weekly wage was $18 per week. The court applied Revised Statutes, article 8309, § 1, subsection 1, and arrived at the average weekly wage by multiplying the $3 per day by three hundred days and dividing this sum by fifty-two weeks. The result was $17.30 per week. The court based the recovery on 60 per cent. of this amount. The evidence shows that Carey had worked for Hall for approximately four years in substantially the same employment. He sometimes drew $15 per week and in boom time $20 per week. At the time of the injury he was working six days per week and was drawing $3 per day, or $18 per week. He generally drew $3 per day and worked six or seven days per week. The evidence does not show how many days he worked during the preceding year nor the total amount received by him for his work. There is no evidence that he lost any time. Carey was an illiterate negro and was unable to calculate the total sum received by him for his year's work. Hall, the employer, kept a record showing the amount paid Carey, but could not produce the record on the trial and could not tell the total amount paid by him during the preceding year. Appellant contends that, since Carey had worked a full calendar year in the employment in which he was injured, he had not, in the language of the statute, worked in the same employment "substantially the whole of the year immediately preceding the injury," and the court was not authorized to calculate the average weekly wage on the basis outlined in section 1, subsection 1, article 8309. He contends that the only method that could have been used was to take the total of the earnings for the year and divide this sum by fifty-two, and that there was no evidence showing the total earnings for the year. It is true that, where an employee has worked more than three hundred days during the calendar year in the same employment, he is not bound by the provisions of section 1, subsection 1, article 8309, but is entitled to have the whole of the wages received by him during the year divided by fifty-two in order to arrive at the average weekly wage. Texas Employers' Ins. Ass'n v. Storey (Tex.Com.App.) 17 S.W.2d 458; Petroleum Casualty Co. v. Williams (Tex.Com.App.) 15 S.W.2d 553. However, if either party was injured by the method used by the court in this case, it was the employee and not the insurer, and the insurer therefore has no right to complain. Hartford Accident Indemnity Co. v. Durham (Tex.Civ.App.)
Appellant further contends that the $3 per day paid to Carey was for the services rendered by him indiscriminately both as corral boss in the hauling business for which insurance was carried, and for his services in feeding and rearing hogs for which insurance was not and could not be carried, and that therefore the evidence does not show what wage was earned by Carey in the industrial or insurable occupation. We have found no Texas case that has undertaken to decide how the weekly wage should be apportioned or determined where the employee immediately preceding and at the time of the injury was engaged in the service of two different employers or in two different occupations. In some states, where the employee is regularly engaged in two different occupations or is working for two different employers in the same line of work, the courts hold that the employee is entitled to establish the total sum received by him from all his concurrent employers as his average weekly wage. Juan's Case,
It should be noted, however, that in the state of Massachusetts, and probably in some of the other states in which the above cases were reported, there is no provision in the Workmen's Compensation Act allowing concurrent contracts of service with two or more employers, and in that state, in order to base the average weekly wage on the amount earned, the wage must have been earned by one in the same grade, employed at the same work, and of the same employer. King's Case,
Finding no error in the judgment of the trial court, the same is affirmed. *173