joined by JUSTICES GRIFFIN and CULVER, dissenting.
It is well established that it is the duty of the courts to reconcile the answers of the jury to special issues. Conflicts are to be declared only where the answers cannot be reconciled. I think the answers to special issues here are not necessarily in conflict and can be reconciled.
*409A cause of action for workmen’s compensation and a recovery thereunder are purely statutory. Likewise the measure of reccovery is statutory. That measure is plainly set out, in so far as these causes are concerned, in Section 11 of Article 8306 and Subsection 1 of Section 1 of Article 8309.1 That measure, according to Section 11 of Article 8306 is 60% of “the difference between [1] his average weekly wages before the injury and [2] his average weekly earning capacity” during the period of the claimant’s partial incapacity (brackets inserted). Where a claimant has worked substantially the whole of a year prior to the injury, as the claimant here had, his “average weekly wages” are defined in Subsection 1 of Section 1 of Article 8309 as “300 times the average daily wages or salary which he shall have earned in such employment * * Under this subsection at least, the statute, in defining “average weekly wages” makes no reference to the “capacity” of the claimant.
The statute therefore, to me at least, says the claimants are entitled to the difference between the average of actual wages for the preceding year and their earning capacity after the injury.
The majority says that a man’s actual earnings before injury are his earning capacity. This may or may not be true. Actual earnings after injury do not represent, as a matter of law, earning capacity. Texas Employers Ins. Assn. v. Frankum (1947), 145 Tex. 658, 201 S.W. 2d 800, at 802. A man, before injury, may be earning less than his capacity for a number of reasons. Or, in unusual circumstances, he may be earning more than would fairly be regarded as his true earning capacity. Or he may be earning exactly up to his capacity and no more. The jury was not asked, and the statute does not call for an inquiry as to, what the claimant’s capacity was before injury. It may or may not have been exactly represented in his wages. It is conceivable that a man’s capacity to earn was greater than his actual earnings before injury. Then even if he suffers some partial disability, his remaining capacity to earn may equal or even exceed his actual wages before injury. The jury has the right to so find if the facts justify such a conclusion.
As the majority points out, the Workmen’s Compensation Act was intended to compensate for loss of earning capacity. The courts drew this intent from the statute. Yet the statute itself does not have the court inquire of the jury what the *410claimant’s earning capacity was before injury, and what it was after injury. It would have been easy for the Legislature to have said this if that was its intention. And, to me, the opinion of the majority is a forceful and meritorious argument in favor of amending the statute in that regard. But the Legislature , which clearly recognized a difference between wages actually earned and earning" capacity, has, for reasons best known to itself, plainly stated that the recovery shall be, in this situation, the difference between actual wages before and earning capacity afterward.
It may be granted that this results in an inconsistency. The majority has struggled well and sincerely to reconcile this inconsistency, and its opinion is well written and persuasive. The choice for the Court is not an easy one on either side. Yet the basic fact remains that after careful study, and presumably after weighing the arguments of management, the insurance companies, and labor, the Legislature itself has set the measure of recovery: the difference between actual earnings before and earning capacity after, not earning capacity before versus earning capacity after.
The majority refers to the definition of partial incapacity which is given by the trial court in this case. The definition has given the Court great difficulty in deciding the question of conflicts in the jury’s answers. As I interpret the definition it told the jury that an employee was partially disabled when (1) an employee, after an injury, was able only to perform part of the usual tasks of a workman, but nevertheless was able to procure and retain employment reasonably suited to his condition; or (2) an employee was able to perform labor of a less remunerative class “whereby he suffers a depression or reduction in his earning capacity.”
Again, the definition is Court-made. It is not in the statute. Assuming its correctness, however, the jury was entitled to find the existence of the circumstances which are set out in the first alternative rather than the second.
The language of the Court of Civil Appeals in Maryland Casualty Co. v. Drummond (1938), 114 S.W. 2d 356, in which a writ of error was refused by this Court, supports the view of the majority here in the situation in which the average weekly wage of the employee is determined under Subsection 3 of Section 1 of Article 8309. (That subsection is applicable where *411the claimant has not worked substantially the whole of a year, and there is no employee of the same class in similar employment in the same area.) In such event, the Industrial Accident Board and the jury are authorized to compute the claimant’s average weekly wages “in any manner which may be deemed just and fair to both parties.” But regardless of what is said in the Drummond opinion about recovery under Subsection 3, it is clear, at least to me, that the average weekly wages under Subsection 1, which is applicable here, says, and means, wages actually earned [wages “which he shall have earned”], but not earning capacity. I would therefore reserve judgment on an alleged conflict when and if this situation arises under a Subsection-3 case. Even in that situation, it can be argued that the duty of the jury is to fix a fair wage rate for the claimant, not based on the individual capacity of the claimant, but based on a fair wage rate for an ordinary person doing what the particular claimant did under similar circumstances.
To me, the answers of the jury (the stipulation) that the claimant’s actual earnings before injury were $100 per week, that he received some partial incapacity, and that his actual earning capacity after the injury is $100 week, are not necessarily in irreconcilable conflict. I would grant the writ of mandamus.
All statutory references are to Vernon’s Texas Civil Statutes.