(concurring).
I concur in the order of reversal for the reason that in my opinion the jury’s answer to Special Issue No. 9 is without support in the testimony. By its answer to this issue the jury found that “there was no other employee of the same class as Mack C. Lightfoot who worked substantially the whole of the year immediately preceding January 2nd, 1940, doing the same or similar work.” This issue was obviously submitted in connection with the first subsection No. 2 of Section 1, Article 8309, Vernon’s Ann.Civ.Stats.
The amount of compensation awarded by the judgment was based upon first subsection No. 3, of Section 1, Article 8309.
In American Employers’ Insurance Company v. Singleton, Tex.Com.App., holding approved by the Supreme Court, 24 S.W.2d 26, 27, it was held that “the burden is. on the claimant to show by competent evidence that it is impracticable to compute the average weekly wage under either subsec tions 1 or 2 before subsection 3 can be resorted to.”
Appellee contends that the jury’s answer to Special 'Issue No. 9 is supported by ap-pellee’s testimony that he had not worked for substantially the whole of the year immediately preceding the injury in the same or similar employment taken together with the testimony of A. M. Brock, Division Chief Clerk for the Humble Pipe Line Company at Corpus Christi, Texas, which was that the Humble Company had no employees doing work similar to that performed by appellee, who had worked approximately 300 days during the year preceding appellee’s injuries. Brock explained that under the labor policy of the Humble Company such employees were restricted to thirty-six hours per week or 234 days a year.
No witness testified that there was not (or that the witness did not know of) an employee of the same class as appellee who. had worked substantially .the whole of the year preceding the date of appellee’s injuries in the same or in a similar employment in the same or a neighboring place.
This testimony was insufficient to meet the burden of proof placed upon the claimant by the statute. Texas Employers Ins. Ass’n v. Ebers, Tex.Civ.App., 134 S.W.2d 797. .
Federal Underwriters Exchange, v. Stewart, Tex.Civ.App., 109 S.W.2d 1031, goes to the verge of permissible judicial construction. To extend further the holding of that case would be to destroy the statutory burden of proof by judicial legislation.
Having failed to show the impracticability of computing the average weekly wage under first subsection No. 2 of Section 1, Article 8309, the judgment based upon first subsection No. 3 thereof cannot stand.
On Appellee’s Motion for Rehearing.
. SMITH, Chief Justice.The judgment was ordered reversed and the cause remanded primarily because of insufficient evidence to exclude computation of compensation under first Subd. 2, *325§ 1, of Art. 8309, and authorize the jury to compute under first Subd. 3 of § .1. On motion for rehearing appellee insists that in its appeal appellant complained only that there was no evidence upon that issue, and did not raise the point of insufficient evidence; and that therefore this Court had no jurisdiction of the question of insufficient evidence. As a matter of fact, this Court sustained appellant’s third proposition which was, that “The plaintiff, claiming compensation, having failed to make any proof that there were no other employees of the same or similar class who worked substantially 300 days during the year next preceding the date of the injury, it was error for the court to submit to the jury the issue as to what was the fair and just wage under Subdivision 3 of Section 1 of Article 8309 (germane to Assignments of Error Nos. 7, 8 and 9).”
In the cited assignments of error, upon which the proposition is based, appellant definitely complained, severally, that there was “no” evidence, and that the evidence was “insufficient” to sustain the jury finding under first Subdivision 2. When the proposition and related assignments of error are considered together, as they should he, they present the question of insufficient evidence.
In the original disposition this Court did not expressly pass upon appellant’s propositions 8, 9, 10 and 11, but overruled them by implication. In those propositions appellant complains of the ruling of the trial judge in excluding proffered testimony that appellee was “drunk” on a certain occasion subsequent to the accidental injury for which he claimed and was awarded compensation in this action. We now expressly overrule those propositions, because they do not show reversible error. The error involving misconduct of the jury, adverted to in the original opinion, will probably not occur upon another trial.
The result is that reversal of the judgment of the trial court rests primarily upon the insufficiency of the evidence to support the finding of the jury that no other employee in appellee’s class worked in that vicinity substantially 300 days during the year next preceding the date of appellee’s injury, and, secondarily, upon the misconduct of the jury in connection with the issue fixing the amount of the award of compensation to appellee. All other issues were found in favor of appel-lee upon sufficient evidence, and we have concluded that it is the duty of this Court* in observance of Rule 434, Rules of Practice and Procedure in Civil Actions, effective March 31, 1941, to restrict the matters to be retried on a remand to those issues which are affected by the errors mentioned, they being severable from all other issues.
Accordingly, the original judgment of this Court will be amended so as to reverse the judgment and remand the cause for another trial for the purpose only of determining the amount of appellee’s weekly wage in accordance with the formula prescribed in first Subdivisions 2 and 3, of § 1, Art. 8309, R.S. 1925, and fixing the amount of compensation to be awarded ap-pellee thereunder.
Appellee’s motion for rehearing will be overruled in part and granted in part, -as indicated. The parties may file motions for rehearing in response to this opinion.