(dissenting).
In order to place my dissent in proper perspective, I point to the obvious fact that the majority opinion divides itself into three distinct segments; viz., (1) the “class” of other employees; (2) the sufficiency of the evidence to support a determination of the wage rate under subdivision 2; (3) the sufficiency of the evidence to support the finding of incapacity.
While I have some doubt as to the validity of the conclusion reached as to the “class” mentioned in section one of the majority opinion, I do not file a dissent thereto.1 After all, our record presents a case of a plaintiff who was a part-time able-bodied worker who is now a full-time disabled worker.
I confine my dissent to the holding of the majority in the second segment of the opinion; namely, the sufficiency of the evidence to support the recovery under Section 1, subdivision 2, Art. 8309, V.A.C.S. Factually, the evidence quoted in the majority opinion is of less probative value than that examined and found deficient in *670Aetna Insurance Co. v. Giddens, 476 S.W.2d 664 (Tex.1972).2
Secondly, even if we indulge the somewhat doubtful assumption under this record, that there were other employees who actually worked as many as 210 days during the preceding year, it appears that such men were paid on an hourly basis while plaintiff was compensated on a piece-work basis. More importantly, perhaps, plaintiff’s evidence establishes that some of the men were being compensated at the rate of $2.25 per hour, others were paid at the rate of $2.50 per hour, with plaintiff being paid on the basis of $8.00 per cord.
Although the discrepancy is not as great in our case, a long line of cases has firmly established the rule that where the evidence discloses differing wage rates among similar employees, it is error to submit the wage finding under subdivision 2. See, e. g., Texas Indemnity Ins. Co. v. Smith, 73 S.W.2d 578, 580 (Tex.Civ.App., Amarillo, 1934, no writ); Texas Employers’ Insurance Association v. Rigsby, 273 S.W.2d 681, 688 (Tex.Civ.App., Beaumont, 1954, no writ).
In Travelers Insurance Company v. Liptrap, 413 S.W.2d 144, 147 (Tex.Civ.App., Eastland, 1966, error ref. n. r. e.), where the plaintiff did not work regularly as a cab driver (156 days with earnings of $597.58 in the preceding year), the court said:
“The evidence does show that there were other employees who had worked at least 210 days during the year immediately preceding appellee’s injury. These employees were also cab drivers paid on a commission basis but their earnings varied from $7.00 to $15.00 per day. None of them received the same amount per day or per week as appellee was paid for his services. Under the evidence it was not practical to compute appellee’s .‘average weekly wages’ under Subdivision (2). The court erred in rendering judgment on the theory of another’s employment and earning capacity under the provisions of Subdivision (2) of Section 1 of Article 8309.”
The court in Liptrap, supra, went on to hold that under the evidence the weekly wage of Liptrap could be fixed only under subdivision 3 of the statute. So it is here; it was error to fix plaintiff’s wages under subdivision 2; but, there was evidence which would have authorized a submission under subdivision 3 of the statute had plaintiff procured a finding negating subdivision 2.
Under the authorities herein discussed, I see no alternative to a reversal of the judgment. Defendant, however, points to the fact that plaintiff had the burden of negating the applicability of subdivision 2 before going to subdivision 3, did not assume such burden, and did not submit or request a submission thereof; wherefore, defendant seeks a modification of the weekly compensation benefits to the minimum of $12.00 per week. See Comment and Caveat, 2 Texas Pattern Jury Charges, § 23.04.
I would not perform such drastic financial surgery upon the award since it is apparent that the evidence on the question was not fully developed and the case was tried upon the wrong theory. I would, therefore, reverse the judgment and remand the cause for a new trial for the reasons and following the holding of Aetna Insurance Co. v. Giddens, supra (476 S.W.2d at 665).
. See 2 Larson, Workmen’s Compensation Law, § 60.22, for a discussion of employees who have voluntarily removed themselves from full-time employment. Further, the structure of our case is the exact opposite to that shown in Nored (341 S.W.2d at 494-495). Nor am I persuaded that the part-time summer student employee will be relegated to an “inferior category”; his path to a recovery was well charted in Texas Employers’ Insurance Association v. Shannon, 462 S.W.2d 559 (Tex.1970). Indeed, if he is a minor, he may do even better than the full-time employee by procuring an instruction under Art. 8306, § 12i, Y.A.O.S. See, 2 Texas Pattern Jury Charges, § 23.07, and cases therein cited.
. This is a part of plaintiff’s testimony given on direct examination by his counsel:
“Q But on the average, would you average two loads a day?
“A No, sir, not all the time we couldn’t hardly say we’d average two loads because we was in bad places, we was getting hardwood.
“Q All right. Well, in a — in a given week what would you, yourself, usually average making? How much money in a week?
“A (You know I didn’t — I never- — I don’t believe I could hardly tell you and be sure about it just what I did make a week.”