Texas Employers' Insurance v. Frankum (145 Tex. 658, 1947)

Mr. Justice Brewster

delivered the opinion of the Court.

This is a suit for workmen’s compensation filed by Arthur Lee Frankum, respondent, against Texas Employers’ Insurance Association, petitioner. A jury verdict on special issues resulted in a trial court judgment for respondent for 9 weeks total disability and 300 weeks permanent partial disability. That judgment was affirmed by the court of civil appeals. 198 S. W. (2d) 484.

Respondent’s alleged partial incapacity to work was submitted in the usual form, and the jury found that his injuries resulted in a partial incapacity to work, which would be permanent. However, in answer to the issue as to his average wage-earning capacity during this partial incapacity, the jury answered “thirty five dollars per 40 hr. week.”

Petitioner contends that the trial court erred in rendering judgment for compensation for permanent partial disability on that finding because the answer (1) was not responsive to the issue submitted and therefore not a finding as to respondent’s actual weekly wage-earning capacity and (2) was so ambiguous, uncertain and indefinite that it will not support the judgment.

As early as Thompson et al v. Tinnin, 25 Texas Sup., 56, this court recognized that a jury verdict on special issues must be responsive and complete, considering the objects of the suit; that is (subject to Rule 279, T. R. C. P., which is not involved here), the verdict must ascertain the facts in issue before it will authorize a trial court to dispose of the cause by final judgment. Moreover, when a verdict appears to be ambiguous this court will look to the evidence to determine whether it settled the substantive facts in dispute; and if it does not, judgment thereon will not be permitted to stand. Pecos & N. T. Ry. Co. v. R. R. Commission of Texas (Civ. App.), 193 S. W., 770 (er. ref.) ; Humble Oil & Refg. Co. et al v. Pritchett (Civ. App.), 25 S. W. (2d) 909 (er. ref.). In other words, “The validity of the verdict is determined from the pleadings and the issues on which it is based, and it follows that in order to be sufficient a verdict must respond substantially to all the material issues made up between the parties, and if it varies substantially from the issue or issues or finds only a part of that which is in issue, the verdict is bad. Not only should the jury find on all the issues essential to a proper determination of the rights of the parties, but they must pass directly on the issues and not evade them by an argumentative finding.” 53 Am. Jur., Trial, p. 717, Sec. 1037.

Under the provisions of Sec. 11, Art. 8306, R. S., 1925, before a valid judgment could be entered for respondent the court had to know (1) his average weekly wages before injury and (2) his average weekly wage-earning capacity after injury and during his incapacity. The first question was settled by stipulation that his “average weekly wage earning capacity” during the year"immediately preceding his injury was $67.70. But his avarage weekly wage-earning capacity after injury was a disputed issue, and if it was not validly determined by the answer “thirty five dollars per 40 hr. week” the trial court had no figures' to subtract from $67.70 and no remainder to multiply by 60 per cent so as to fix the compensation due respondent.

We are convinced that respondent’s average weekly wage-earning capacity after injury was not determined by the findings that it was $35.00 per forty-hour week. The jury may have meant that forty hours per week is all that any employee should work or they may have meant that forty hours per week was all that respondent was physically able to work. If they meant to say that forty hours is the proper work week, they were attempting to deal with a matter beyond their province. What constitutes a proper work week is exclusively a matter for the Legislature, which it has determined by Secs. 1 and 5, Art. 8309, R. S., 1925. By that statute the Legislature has said that a work year is 300 days, Petroleum Casualty Co. v. Williams (Com. App.), 15 S. W. (2d) 553; and, excluding Sundays but not legal holidays, that necessarily means that a work week is 6 days, under the Workmen’s Compensation Act. So, if public policy would now be best served by a forty-hour work week, it is!for the Legislature — not for a jury or this Court — to say so.

If the jury meant to say that forty hours per week was all respondent was physically able to work, they were attempting to fix a limitation that was not pleaded, proved or submitted to' them. Respondent did not claim that he was unable to work more than forty hours per week; his claim was that because of his injuries he could not do heavy garage work as he formerly did but could do only the lighter work with the aid of a helper. This is clearly shown by his own testimony, under direct examination by his own counsel, as follows:

“Q. Do you know how much Johnnie Luecke (an uninjured fellow worker) is making on the flat rate basis? A. Some of his checks was $115.00 and some $125.00. ¡

“Q. A week? A. Yes, sir, by himself.

“Q. I will ask you is he working more or less or the same amount of hours you are working? A. He works less, a tohole lot less.

“Q. How many hours a day is he working? A. He will put in his eight hours and he checks out.

“Q. How many hours a week are you working down there to make this $75.00 a week. A. I go sometimes to nine o’clocé at night. I go to work at seven