Fidelity Union Casualty Co. v. Lieb

293 S.W. 246 | Tex. App. | 1927

The average amount per day received by the deceased as wages for the time he worked during the year immediately preceding the day he was injured being $3.30, appellant insists that the weekly compensation appellees were entitled to was 60 per cent. (amounting to $11.42) of the sum obtained by multiplying the $3.30 by 300, and dividing the product by 52, and therefore that it was error to award them instead 60 per cent. (amounting to $12.40) of the sum obtained by dividing the total of wages received by deceased for said year by 52.

The contention is based specifically on (1) the finding of the trial court that the deceased worked for the oil and fertilizer company "substantially the whole of the year preceding his injury"; (2) an assumption that the court found, further, that, during all the time the deceased so worked, it was "in the employment in which he was working at the time of the injury"; and (3) the provision in subdivision 1 of the statute set out in the statement above that —

"If the injured employé [quoting] shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of 300 times the average daily wage or salary which he shall have earned in such employment during the days when so employed."

We need not determine whether, if the trial court had found the fact to be, as appellant erroneously assumes he did, that the work of deceased during the time he worked for the oil and fertilizer company in the year immediately preceding the injury was all "in the employment in which he was working at the time of the injury," appellant's contention should be sustained or not; for the fact is, as we read the record, said court did not so find. On the contrary, the court, in effect, found that all the work done by the deceased was not in such employment, when he found that the wages received by the deceased during said year "varied from time to time, ranging from $3 to $4 per day, according to the character of work he was doing." That finding plainly means that during the year specified the deceased engaged in different kinds of work for the oil and fertilizer company, for which he received wages differing in amount. So, it appears, the case is not within said provision in subdivision 1 of said section of the statute; and it is not, of course, in view of the finding that the deceased worked substantially the whole of the year immediately preceding the day when he was injured, within the provision in subdivision 2 thereof. Hence it was "impracticable" to compute the average weekly wages of the deceased in the way provided in said subdivisions 1 and 2 of the statute, and therefore a "good and sufficient reason" existed for resorting to another way to determine the amount of such wages.

The case is unlike Howard v. Ins. Ass'n (Tex.Civ.App.) 282 S.W. 266, cited by appellant as supporting its contention, in that there the deceased had worked at the same kind of employment at the same daily wage for more than a year before his death. A writ of error granted in the Howard Case (292 S.W. 529) has not, it seems, been disposed of. But, in view of the difference between the facts of the two cases, we think it is of no importance in the decision of this case whether the ruling of the Court of Civil Appeals is approved in that one or not.

The judgment is affirmed.