On Motion for Rehearing.
In the motion for rehearing, appellant urges that the case be either reversed and rendered allowing appellant recovery for ■total and permanent disability on the basis of $35.00 per week for 401 weeks; that the case be remanded for a new trial; or reform the trial court’s judgment so as to allow appellant the recovery of the minimum compensation rate under Section 10 of Article 8306.
We remain convinced the original opinion properly held there was no evidence to support the jury’s answers to Special Is*787sues Nos. 12 and 13. If we are correct in this conclusion, it therefore follows that there is no basis to support a judgment for appellant under Subsection (1) of Art. 8309, § 1. Under the uncontradicted evidence Subsection (1) can not apply in this case for the obvious reason that appellant had not worked “substantially the whole of the year” as was submitted to the jury-or “210 days of the year” immediately preceeding the injury. We therefore see no basis upon which this Court should or could reverse and render this cause.
In preparing the original opinion we gave considerable thought to the question of whether the case could be remanded in order that appellant might be given an opportunity to obtain a jury finding under either Subsection (2) or (3) of Article 8309, § 1. This concern stemmed primarily from the fact it was admitted by the insurance carrier that appellant was injured to some extent in the course of his employment with the Canton Motor Company. Appellant cites several cases, including workmen’s compensation cases, which have Peen remanded where the case was tried under the wrong theory. However, in every such case it will be noted that the appellate court held the trial court erred in some material respect. We remain convinced the trial court was correct in sustaining appellee’s motion to disregard the answers to Special Issues Nos. 12 and 13. We would thus be placed in the position of remanding an errorless judgment. As Justice Garwood so aptly stated on motion for rehearing in Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R.2d 1045: “Our law does not contemplate remands for new trial except in connection with reversals and does not permit reversals except for errors. Scott et al. v. Walker, 141 Tex. 181, 170 S.W.2d 718, and cases cited.”
Appellant also contends that he is entitled to have the trial court’s judgment reformed so as to allow him recovery on the basis of the minimum compensation rate under Sec. 10 of Art. 8306. This contention is without merit under the circumstances here. Appellant does not file an unconditional remittitur. He takes the position he is entitled to this amount as a matter of law. As the judgment appealed from provides for no recovery, appellant is not in a position to tender a remittitur. In our opinion the rule pronounced in Texas Employers’ Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929, has no application in this case.
Believing that the original opinion properly disposed of the case, the appellant’s motion for rehearing is overruled.