On Rehearing. Upon careful study of the record, appellee's motion for rehearing must be sustained. In lieu of our original opinion remanding this cause, the following will be substituted as our opinion of affirmance, Mr. BOND, Chief Justice, dissenting:
This is a compensation suit under sec. 12, Art. 8306, Vernon's Ann.Civ.St.; appellee Davis alleging in trial pleading that about January 1, 1944, while employed by the De George Cafe, Dallas, as a "pot washer," some lye-water splashed into his left eye, resulting in total and permanent loss of use of said member; also partial disability to his right eye "insofar as the performance of manual labor is concerned." The judgment, following jury verdict adverse to appellant insurer, was for 100 weeks of total incapacity to plaintiff's left eye and 7 per cent permanent incapacity to right eye, based on a compensation rate arrived at by using $26 as his "average weekly wage."
Referring to subsection 1, Art. 8309, § 1, Vernon's Ann.Civ.St., the jury answered "Yes" to issue 12 that plaintiff Ardell Davis had worked in the same employment in which he was working at the time of injury, whether for same employer or not, substantially the whole of the year immediately preceding date of injuries in question; and to issue 13, that $26 was his average weekly wage during such preceding year; also fixing the same amount ($26 per week) as their answer to issue 16, reading: "From a preponderance of the evidence, what sum of money do you designate as the average weekly wage of the plaintiff, Ardell Davis, which you deem just and fair to both parties, plaintiff and defendant?"
Summarized, insurer's points of appeal are: (1) Though evidence sustained the jury answer to issue 12 that plaintiff was engaged in the same employment for substantially the whole of the year immediately preceding date of injury, there was no evidence of earnings during that period; hence, the jury finding under issue 13 that $26 was plaintiff's average weekly wage for the year prior to injury was wholly without evidence in support; (2) testimony adduced on the trial showing that regardless of the cause of impairment to claimant's vision, it could be restored to normal by use of glasses, the court's definition of "total incapacity of eye" should have included such theory so as to permit the jury to consider such evidence in arriving at any answer to issue 2 involving total incapacity of plaintiff's left eye; (3) insufficiency of evidence to sustain the finding of total loss of vision of plaintiff's left eye; the testimony being that without glasses he still had some vision, and with glasses it was improved; (4) evidence inclusive of claimant's age, previous employment, earning capacity, etc., should be considered in arriving at a determination of average weekly wage under subsection 3, Art. 8309; § 1 (just and fair to both parties); and the court erred in instructing the jury, in effect, that whatever they might find plaintiff's earnings at time of injury would constitute a "just and fair" weekly wage; (5) error of the court in permitting plaintiff to testify over objection that he had a son in the overseas army, because such statement was immaterial to any issue touching extent of his disability, and highly prejudicial to defendant's rights.
Apropos of issue 12 (inquiry if plaintiff had been in the same employment substantially the whole of the year preceding injury, Art. 8309, § 1, subsection 1), we conclude that its submission was not warranted under the record. Testimony on the issue was by plaintiff and another in his behalf, defendant offering no evidence thereon. Davis testified that he had been employed at the De George Cafe as pot washer for about 7 weeks before the accident of January 1944; his only other identified employment during 1943 being with Wonder Bread Company, cleaning up "cooking machinery and mixers" or washing "the mixer in the bakery," doing that kind of work some 8 or 9 months. There was no evidence of what he earned with the Wonder Company or other employers during the preceding year, all evidence as to wages relating to his employment with the De George Cafe; there receiving $20 per week of 6 days, plus $3 allowance for meals and $3 paid each Tuesday when the restaurant was closed for purpose of cleaning up. He further testified to questions: *Page 42
"* * * Ardell, before this accident happened had you worked exactly 300 days, or near to or close to 300 days in that employment or in any employment in the year immediately preceding the day that you got hurt? A. No sir.
"Q. Do you know of anybody else in Dallas County who was doing the same or similar work that you were doing when you got hurt, the same or similar employment or in this vicinity who worked exactly 300 days or near to or close to 300 days in the year immediately preceding the date you got hurt? A. No sir, I don't."
A Mr. Thomas, bookkeeper for De George, also for various other Dallas cafes, testified, viz.:
"Q. Do you know any employee of De George's Restaurant that worked as much as 300 days or near to or close to 300 days in the year immediately preceding January 1944? * * * A. Not with me, and I really don't know whether there is one on the payroll record that has. I would like to say this, I know that type of help in cafes and restaurants in the City of Dallas don't stay on any one job very long at a time.
"Mr. Yarborough: Was that the condition existing throughout this vicinity in 1943? A. It was. I have about 25 cafes I keep books for, and I think I can truthfully say they won't stay on the job over two or three weeks at a time.
"Q. Do you know any of that 25 you keep books for of a pot washer or dish washer doing the work of that kind and character and nature in Dallas or the surrounding vicinity who worked as much as 300 days or close to or near 300 days in the year immediately preceding January 1st, or any date on down through the 15th of January in any year immediately preceding that date? A. No sir, I don't. * * *
"Q. Do you know of any in the whole 25 cafes you keep books for during that period of time that worked as much as even 200 days doing the type of work I have just described? A. No, I really don't."
It would appear that the foregoing testimony conclusively demonstrates the inapplicability of either subsection 1 or 2, Art. 8309, § 1, as a basis for determining claimant's average weekly wage, in that (1) there was no showing that he had worked in the same employment for substantially the whole of 1943, or (2) that any other employe of like class in the same or similar employment had been so employed. In the first place, it can hardly be said that plaintiff's period of employment during the preceding year raised any fact issue under either subsection 1 or 2, considering the affirmative requirements of each section that such employe's average annual wage shall consist of 300 times the average daily wage. See Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553, 555, holding "that substantially a year, within the meaning of subdivisions 1 and 2, is exactly 300 days or close to, or near to 300 days. It may be slightly more than 300 days or slightly less than 300 days. That is to say substantially a year means a year or about a year, or so near a year as to be a year for all practical purposes." It follows that jury issue and finding 12, also component finding 13, may be disregarded as without support in the evidence and immaterial to the court's judgment. Similarly, the undisputed evidence eliminated subsection 2, Art. 8309, § 1, as a material issue (conditionally submitted in issues 14 and 15, not answered); the court properly resorting to subsection 3 of the statute (issue 16); and the jury finding, in response, of an average weekly wage of $26 (just and fair to both parties) was a sufficient basis for the court's rendition.
Appellant argues that the definition of "total incapacity of left eye" was incomplete, the jury thereunder having no opportunity to consider defendant's theory of the case, namely, evidence of specialists that by use of glasses plaintiff's vision was normal. Schedule 12 of specific injuries, Art. 8306, provides: "For the total and permanent loss of the sight of one eye, 60 per cent, of the average weekly wages during 100 weeks." "In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member"; which provisions have been given construction in Great American Indemnity Co. v. Stultz, Tex. Civ. App. 56 S.W.2d 200, 202, *Page 43 (writ ref.), viz.: "In regard to said statute as relating to the loss of sight, it will be observed that one of the enumerated cases of `permanent, partial incapacity' to labor is `the total and permanent loss of the sight of one eye,' which in turn means (for the practical purposes of sight) the loss of the function of the eye as an organ of sight, or simply the loss of the eye, a member of the body. The one is the equivalent of the other."
Dr. Harrington, called by defendant, stated that plaintiff had a "pretty severe burn" to eye on first examination, January 14, 1944; giving him some 25 to 30 treatments over a time extending to February 26, when the patient was discharged. In letter to insurer, of February 14, witness said claimant's eye had improved for a few days, then developing an ulceration around margin of cornea, when he was hospitalized and given intravenous injections of typhoid vaccine. Dr. Harrington further testified that on discharge, plaintiff had fully recovered from the injury of January, both eyes being normal with the exception of near-sightedness, a condition existing before the accident, or congenital; that by use of glasses he had been able to bring the vision of both eyes to 20/20, or normal, but did not fit plaintiff with glasses because near-sightedness was something for which he considered the insurance company not responsible. During the trial (February 1945), and by agreement, claimant was again given a series of tests at the office of Drs. Harrington and Knowles, with Dr. Jenkins, another specialist, participating at instance of plaintiff's counsel; both specialists, first named, concluded that the eyes of Davis were normal, aside from near-sightedness, which could be corrected with glasses; Dr. Harrington narrating the statement of Dr. Jenkins, made during the examination, that "he could find nothing wrong" with claimant.
On the other hand, Ardell Davis testified in part:
"Q. Before this lye-water splashed in your eye had you ever had any trouble with your eyes in your life? A. No sir, I never did.
"Q. Had you ever injured them in any way in your life, either one of them? A No sir.
"Q. Did you ever have any difficulty in seeing out of them before this accident happened? A. No sir.
"Q. Out of either one of your eyes? A. No sir. * * *
"Q. At the time he (Dr. Harrington) discharged you were you seeing out of your left eye like you did before you got this lye in it? A. No, I can't see out of it now to do no good.
"Q. Could you read all right with your left eye before you got this lye in it? A. Yes sir.
"Q. Can you read with it now.? A. No sir.
"Q. What happens if you have a print big enough for you to see, what happens to you if you try to read? What do you see when you try to read? A. Well, if I look at one thing it looks like four, and if I try to read the letters all go together; I can't tell one from the other. They all go together. Now, it looks like a fog between me and that wall over there now. It is foggy looking and my eyes are hurting right now, continually hurting."
Dr. Brann, also specializing in eye, ear, nose and throat medicine, called by plaintiff, testified that on examination of plaintiff in April 1944, he "found the left eye quite highly inflamed. There was an abrasion on the lower lid, and conjunctivitis with some infection. The pupil was contracted and wouldn't react to light, and by dilating the pupil I could see the fundus of the eye and congestion of the optic nerve." This witness saw claimant in June 1944, just prior to the court trial; stating in part:
"Q. When you saw him in June that was in '44, I presume? A. Yes.
"Q. What did you find at that time? A. Well, there was still an irritation and some infection and the pupil was still contracted. The vision hadn't improved. * * *
"Q. What did you find on the 19th day of February? What did you find then? A. There was some improvement in the *Page 44 conjunctiva. There wasn't so much infection, and the abrasion had healed, but there was still the abrasion of the conjunctiva, that is the lid fell over the eyeball, and the pupil was contracted and his vision, he saw an object he should see at 40 feet, he saw at 5 feet.
"Q. That was in February of this year? A. Yes.
"Q. About what percentage of loss of vision would that be? A. For all practical purposes, for useful purposes that is practically nil.
"Q. When you say `nil' you mean practically nothing? A. Yes, as far as useful purposes are concerned. * * *
"Q. Dr. Brann, from these three examinations what is your opinion with reference to whether or not this condition as you last saw it on February 19th, 1945, will improve or stay the same or worse or what? A. I have my doubts that he will get any improvement because it has gone on practically a year with no improvement and I doubt if he will get any improvement. * * *
"Q. For what length of time then? A. That would be the rest of his life. * * *
"Q. Dr. Brann, what is the extent in percentage of the use or ability of Ardell Davis to use his left eye for the performance of manual labor as you saw it on February 19th, 1945? A. As far as his left eye is concerned I would say he has no useful vision. * * *
"Q. Would the glasses help the vision in the left eye? A. I have my doubts as to that.
"Q. You wouldn't know about that until you tried it, would you? A. My opinion is no."
The jury were instructed that the phrase "total incapacity of his eye" means "total loss of use of the eye; it does not imply an absolute disability to perform any kind of labor, but such incapacity of the eye that it disqualifies a person from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment requiring the use of said eye, is ordinarily regarded as total incapacity of the eye." While the specific injuries scheduled in sec. 12, Art. 8306, carry compensation per se, i. e., for physical disability without reference to incapacity for labor, it is well settled that the "character of use of a specific member, for the loss of which use compensation is awarded, includes the use of such member for the purpose of work." Traders General Ins. Co. v. Maxwell, Tex. Civ. App. 142 S.W.2d 685; Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926.
As supplementing above instruction, defendant requested a charge involving "total loss of vision"; that by such phrase is meant "that such person has sustained the total loss of vision or eyesight in such eye and that the same is an irrevocable loss and no mechanical process or method known to man can restore that vision or any portion thereof." There was no error in the definition given by the court, nor in its refusal of the requested instruction, because (1) the quoted charge and issue 2 in connection, have been held to correctly present the claim of specific injury involving "permanent partial incapacity" under sec. 12, Art. 8306 of the statute; see Traders General Ins. Co. v. Maxwell, supra, and authorities cited; (2) under aforesaid definition of "total incapacity of eye" the jury was authorized to take into consideration all evidence relevant to "total loss of use of the eye" inclusive of defensive testimony that glasses would fully restore plaintiff's vision; also opposing statements of Dr. Brann that glasses would prove ineffectual; (3) and, aside from unduly limiting the court's definition of statutory incapacity, the refused instruction was a comment on the weight of particular evidence, giving undue emphasis to defendant's theory of the case.
But appellant argues that even plaintiff admitted on the trial of having some vision in his left eye, the fact situation becoming thereby identical with Travelers Ins. Co. v. Richmond, Tex.Com.App., 291 S.W. 1085. We do not find in the statement of facts (pp. 69, 70) the admission referred to or anything contradictory of plaintiff's testimony already *Page 45 quoted. Nor are we able to determine the present authoritative value of Travelers Ins. Co. v. Richmond on the points under discussion. See Great American Indemnity Co. v. Stultz and its reference to Fidelity Union Causalty Co. v. Munday, supra. We do know the more recent decisions hold, in effect, that under our compensation law, an employe is entitled to recover for loss of eyesight when, by reason of injury, there remains no usable vision. Texas Employers' Ins. Ass'n v. Thrash, Tex. Civ. App.136 S.W.2d 905; Maryland Casualty Co. v. Gunter, Tex. Civ. App.167 S.W.2d 545. The Richmond case is distinguishable, however, in that there the claimant's testimony was taken as admitting the existence ofsome vision; while here, under the foregoing testimony of plaintiff and Dr. Brann, the issue of total incapacity of left eye was clearly drawn.
In connection with issue 16 above, the jury were instructed "that you may determine the weekly wage in any way and manner that seems just and fair to both parties under the evidence, and his wages may include the market value of board and other advantages which can be estimated in money which the employee receives from the employer as part of his remuneration." Appellee's bases of wages received in his employment when injured have already been narrated, except for the statement that at first his employment with the cafe was for $18 per week, and the further testimony of employer De George that the value of meals per week ranged from $4.80 to $6.60. Appellant argues that issue 16 and the "instruction" were objectionable because all evidence of earnings thereunder related to the De George employment; and, in consequence, the jury were confined to a consideration of the wages received by claimant at time of injury as the amount deemed just and fair to both parties. Both issue and explanatory charge were in language of the statute, and under no reasonable construction thereof was the jury told to base its findings on what Davis was earning at time of injury; the jury being thereby authorized to consider such wages but not required to do so. The testimony as a whole is inclusive of claimant's age (45), his previous employment and present earning capacity; thereby compatible with compensation law requirements that under subsection 3 "No hard and fast rule can be announced that will govern the board in all instances. The statute clearly intends to clothe the board (or jury) with broad discretionary powers in considering matters that bear on the question to be determined." Traders General Ins. Co. v. Bulis, 129 Tex. 362,104 S.W.2d 488, 490; and in Maryland Casualty Co. v. Drummond, Tex. Civ. App. 114 S.W.2d 356, 360, (writ ref.), referring to sec. 3, the court said: "It seems to us that evidence to be `pertinent' to the ascertainment of the just and fair wage rate contemplated should tend reasonably to establish the capacity of the claimant to earn in the same or similar employment to that in which he was engaged at the time of his injury. We do not understand the Bulis Case to hold otherwise. We think the compensation statute clearly contemplates that the earning capacity covered by the compensation insurance shall bear a direct relationship to the capacity of the insured to earn wages in the employment in which his injury is received." The objections are overruled.
Further complaint is made of plaintiff's response to an introductory question that his son was in the army overseas, citing American Employers Ins. Co. v. Kellum, Tex. Civ. App. 185 S.W.2d 113. The two fact situations are dissimilar; here, defendant's protest coming after the completed question and answer, the objection being on no particular ground except immateriality. Where no objection is urged until after testimony is in, and no motion to exclude it is made, it is generally held that a complaint on appeal of its admission is without merit. 41 T.J., sec. 142, p. 905; Pittman v. Stephens, Tex. Civ. App. 153 S.W.2d 314; likewise as to an objection that certain evidence is simply "immaterial." Peerless Oil Gas Co. v. Teas, 138 Tex. 301, 158 S.W.2d 758.
No reversible error appearing, the judgment appealed from is affirmed.