concurring.
I concur in Justice Shannon’s opinion that: (1) the jury’s answers are not in conflict; and (2) the jury’s finding “we do not,” in answer to special issue six, is not so against the great weight and preponderance of the evidence as to be manifestly unjust. I respectfully do not agree, however, that we must therefore affirm the trial-court judgment that Mrs. Holliman take nothing by her suit notwithstanding the jury’s finding that she had been injured in the course of her employment. In my view, we may only reverse the judgment below and remand for a new trial, the result also reached by Justice Brady. Before stating the reasons for my view, and owing to the general importance of the issues, I respectfully invite the Supreme Court of Texas to clarify the points upon which Justice Shannon and I diverge, there being no clear holding by that Court to control the issues.
THE STATUTORY TERM “AVERAGE WEEKLY WAGES”
In the trial de novo authorized by Tex. Rev.Civ.Stat.Ann. art. 8307, § 5 (Supp. 1984), the rights and liability of the parties are specifically required to be determined by the provisions of the Workers’ Compensation Act, Tex.Rev.Civ.Stat.Ann. arts. 8306-8309b (1967 & Supp.1984). That is to say, in administering the act a district court is required to apply its provisions as does the Industrial Accident Board for whom the provisions are basically intended. Texas Employers’ Ins. Ass’n. v. Ford, 153 Tex. 470, 271 S.W.2d 397, 399 (1954). Under the act, it is provided that an employee injured “in the course of his employment” shall have no cause of action against a subscribing employer but instead shall have compensation solely under the act. Art. 8306, §§ 3, 3b. The amount of compensation awardable for the injuries sustained by Mrs. Holliman is based upon her “average weekly wages.” Art. 8306, §§ 6, 10, 11.
Three definitions of “average weekly wages” are supplied in art. 8309, § 1 of the act. In legal effect, each definition is an arbitrary standard intended to secure consistency in the amounts awarded to employees. Each definition establishes the base from which an award is calculated in a case in which one of the three mutually *102exclusive standards is established. The three standards are:
1. The claimant’s own wages. The claimant’s personal or actual wages are used to calculate his “average weekly wage” if he has worked as much as 210 days for his employer immediately before his injury.
2. The wages of another employee. Where the claimant has not worked as much as 210 days for his employer immediately before the injury, the claimant’s “average weekly wage” is assumed to be
the average daily wage or salary which an employee of the same class, working at least [210 days of the year immediately before the claimant’s injury], in the same or in a similar employment, in the same or a neighboring place, shall have earned during the days that he actually worked in such year....
3. A “just and fair" wage. Where neither of the foregoing is applicable to the claimant’s case, the Board is directed to compute the claimant’s “average weekly wages” “in any manner which may seem just and fair to both parties, as of the date of the injury.”
FIXING THE “AVERAGE WEEKLY WAGE” IN A JURY TRIAL
It has been said that the fixing of a particular standard, from among the three, is “a fact issue for the trial court to determine” when trial is had without a jury. Maryland Casualty Co. v. Brown, 95 S.W.2d 537, 538 (Tex.Civ.App.1936, writ ref d). I think it obvious that the issue is a fact issue for the jury when trial is conducted with the aid of a jury, providing the parties disagree about which is the proper standard and one is not otherwise established as a matter of law.
It is well-established that “[t]he burden under the statute is upon the plaintiff ,to establish his wage rate.” Texas Employers’ Ins. Ass’n. v. Shannon, 462 S.W.2d 559, 562 (Tex.1970). Another well-established rule applicable to the plaintiff’s attempt to establish his wage rate is this: the claimant is not permitted resort to the second standard until the first standard is “eliminated” from the case; and he is not permitted resort to the third standard until the first and second standards are “eliminated” from the case. Aetna Ins. Co. v. Giddens, 476 S.W.2d 664 (Tex.1972); Texas Employer’s Ins. Ass’n. v. Ford, supra. What does the word “eliminate” mean in this context? It means, in my reading of the pertinent decisions, that a standard must be submitted negatively to the jury and answered by them “we do.” For example, where the parties stipulate that the first standard is not applicable to the case, before the second standard is “eliminated” from the case the jury must answer “we do” in response to a negative issue framed along the following lines:
Do you find from a preponderance of the evidence that there was not an employee of the same class as plaintiff who worked at least 210 days of the year immediately preceding (the date of the injury) in the same or similar employment in the same or a neighboring place?
2 Texas Pattern Jury Charges, § 23.04 (1970) (emphasis added). See also § 23.02 relative to a negative submission of the first standard. See e.g. Texas Employers’ Ins. Ass’n. v. Ford, supra, (“the jury found that no employee of the same class as respondent had worked in the same or similar employment in the same or a neighboring place for substantially the whole of the year immediately preceding the date of respondent’s injury.”); Aetna Ins. Co. v. Giddens, supra, (“He then failed to prove that no other employee worked for the 210 days.”); Robinson v. Texas Employers’ Ins. Ass’n., 261 S.W.2d 217 (Tex.Civ.App. 1953, writ ref’d) (“In answer to Special Issue No. 15 the jury found that no other employee of the same class as plaintiff had worked substantially the whole of the year immediately preceding plaintiff’s injury in the same or similar employment and in the same or neighboring place_”). A variant is found in Superior Ins. Co. v. Griffin, 323 S.W.2d 607 (Tex.Civ.App.1959, aff’d, 161 Tex. 195, 338 S.W.2d 415 (1960)) where the jury answered “another employ*103ee had not worked,” a finding the Supreme Court of Texas characterized as tantamount to a finding “that there was no other worker of the same class who had done similar work in the same or neighboring place.” One cannot definitely ascertain the form of the submission in Texas Employers’ Ins. Ass ’n. v. Shannon, supra, although it was evidently a negative submission because the succeeding special issue inquired: “[I]f there was not another employee of the same class ... what amount of money, if any, would be just and fair to be fixed as the average weekly wage of the plaintiff.” Texas Employers’ Ins. Ass’n. v. Shannon, 453 S.W.2d 217, 218 (Tex.Civ.App.1970).
HOLDING AND DISCUSSION
It should be obvious from the foregoing that the framing of the issue in a negative form is designed to place the burden of proof upon the plaintiff to eliminate the second standard, in order that he might establish his average weekly wage under the third standard, in cases where the plaintiff assumed the burden of eliminating the second standard from the case. But the point to be made here, upon which I differ with Justice Shannon, is this: unless the jury answer “we do” to a negative submission relative to the second standard, it is not “eliminated” from the case. If, as in the present case, the jury answer “we do not” to an affirmative submission relative to the second standard, it is not eliminated from the case; rather, it simply is not established in the case. Here, the jury did just that, answering “we do not” to special issue six which inquired:
Do you find from a preponderance of the evidence that another employee of the same class as Martha Holliman worked at least 210 days of the year immediately preceding November 21, 1978 in the same or similar employment and in the same or a neighboring place?
The jury’s answer, “we do not,” does not eliminate the second standard from the case because it constitutes only a failure to find the elements necessary to establish that standard.
In truth, the parties in the present case, by their stipulation that Mrs. Holliman did not work the number of days required by the first standard and, by having failed to provide for an issue that eliminates the second standard, simply foreclosed themselves from calculating Mrs. Holliman’s average weekly wage on any of the three standards. The second standard has not been established in the case, by reason of the jury’s answer to special issue six; and it has not been eliminated from the case because the jury have not found that no other employee of the same class as plaintiff had worked substantially the whole of the year preceding the injury in the same or similar employment and in the same or a neighboring place, nor has that proposition been established as a matter of law. I therefore believe the present case falls squarely within the rule of Ford. There, the Supreme Court held there was no evidence to support the jury’s finding that would have eliminated the second standard. The Court said:
The evidence in this case clearly does not eliminate Subsection 2. The case should therefore be retried.
271 S.W.2d at 400 (emphasis added).
But a retrial may be ordered in the present case only if Mrs. Holliman did not have the burden of eliminating the second standard, for she may be viewed as having waived any resort to the third or “just and fair” standard. I believe she did not have that burden given her theory of the case, nor was she required as a matter of law to assume that burden or risk a take-nothing judgment.
Apparently, only two reported appellate decisions have considered directly the issue of which party has the burden of eliminating the second standard in a case where the plaintiff rejects that burden and chooses to rely solely upon the second standard. One decision is Truck Insurance Exchange v. Cartmill, 385 S.W.2d 277, 280 (Tex.Civ. App.1964, no writ). Without discussion, the court merely stated that the defendant must assume the burden of eliminating the *104second standard, by a negative submission thereof, if he wishes to force the plaintiff to the third or “just and fair” standard. For authority, the court cited the Ford decision where, of course, the plaintiff assumed the burden of eliminating the second standard, by a negative submission, in order to establish the third.
The second decision is Texas Employers' Ins. Ass’n. v. McMahon, 509 S.W.2d 665 (Tex.Civ.App.1974, writ ref’d n.r.e.). It is more enlightening. The majority and the dissent there disagreed on whether the evidence was sufficient to support the jury’s finding on an affirmative submission of the second standard, upon which standard alone the plaintiff assumed the burden. Two of the justices concurred that the evidence was sufficient to support the finding. They therefore affirmed the trial court judgment for the plaintiff. Because they did so, they did not reach the defendant’s secondary argument that a new trial was improper because:
1. the “plaintiff had the burden of negativing the applicability of subdivision 2 before going to subdivision 3”; and
2. the plaintiff “did not assume such burden, and did not submit or request a submission thereof.”
Justice Keith found the evidence ¿«sufficient to support the jury’s finding on the second standard. He was therefore logically required to address the defendant’s secondary argument that a new trial should not be ordered. He rejected the defendant’s argument “since it is apparent that the evidence on the question was not fully developed and the case was tried on the wrong theory.” 509 S.W.2d at 670. He cited as authority Aetna Ins. Co. v. Giddens, supra, a case involving the negative submission of the second standard by a plaintiff who assumed the burden of eliminating it from the case in order to reach the third standard. And, by reference to the comment and caveat in 2 Texas Pattern Jury Charges, § 23.04, supra, Justice Keith suggested unmistakably that the defendant, if he wished to avoid a new trial on remand, must assume the burden of negativing the second standard where the plaintiff does not assume that burden but instead seeks recovery solely upon the second standard. And because the state of the verdict, under his view of the evidence, would not allow a method for calculating recovery on any of the three standards, Justice Keith concluded that “the case was tried on the wrong theory.”
In summary then, Justice Keith explicitly rejected the defendant’s theory that the plaintiff, under the general rule that he has the burden of establishing his average weekly wage, must assume the burden of negativing the second standard even though he may simultaneously seek to establish it on the theory that it alone applies to his case. This is the precise argument made by the defendant in the present case. I would reject it for the reason given by Justice Keith, but also for the more fundamental reasons which follow.
The decision where to place the burden of persuasion, and therefore the burden of eliminating the second standard, should be governed by considerations of convenience, fairness, and policy, including the factor of practicality. 1 Ray, Texas Practice, Law of Evidence, § 43, p. 53 (1980); Hodges, Special Issue Submission in Texas, § V, p. 84 (1959). To place upon a workers’ compensation claimant a burden simultaneously to establish and eliminate the second standard raises an unfairness and practical problems obviously not intended by the act.
The claimant, as here, may believe himself entitled to compensation measured by the second standard. Accordingly, he so pleads his case and adduces evidence to “establish” the second standard, which requires an affirmative submission of the elements of that standard. In cases where the jury are persuaded as to the second standard, and answer the submission “we do,” there is no difficulty and the claimant’s compensation is calculated from the second standard and judgment rendered for the resulting sum. On the other hand, if the jury are not persuaded as to the second standard, there is no means of calculating an award based upon the third *105standard unless the jury first answer “we do” in response to a negative submission of the elements of the second standard, thereby eliminating it from the case.
May we not simply require the claimant to plead and show alternatively, as part of his general obligation to establish a wage rate, that the third standard is applicable to his case if the second is not? Alternative claims and defenses are, of course, quite familiar in our Texas practice. Tex.R. Civ.P. 48 (1979). For example, a plaintiff may recover on a claim in quantum meruit if the jury are not persuaded by his allegation and proof of a contract between himself and the defendant. But we do not require that the plaintiff, in such cases, both establish and eliminate his contract claim before he may recover in quantum meruit as he has pleaded alternatively. Rather, the plaintiff may recover in quantum meruit if the jury merely fail to find the existence of a contract between plaintiff and defendant. That is to say, the plaintiff may recover in quantum meruit even if he fails to “establish” such a contract—we do not impose upon him a burden to “eliminate” the existence of such a contract before allowing him to recover in quantum meruit.
Thus, if the principle of alternative pleading be incorporated in the statutory cause of action allowed by the workers’ compensation act, it is readily apparent that some , adjustment must be made relative to the well-established rule that a claimant may recover under the third standard only after the first two have been “eliminated” from the case. Under that rule, as shown above, the jury must answer “we do” a negative submission of the second standard, before resort may be had to the third standard, for that is the only finding that will “eliminate” the second standard. In the statutory cause of action allowed by the act, it has not previously been sufficient, for recovery under the third standard, that the jury answer “we do not” an affirmative submission of the elements of the second standard.
There is, moreover, a fundamental unfairness in placing upon the claimant the concurrent burdens both of establishing and eliminating the second standard, by alternative pleading and proof, before he may obtain recovery according to the third standard. If he be assigned such concurrent burdens, he must perforce offer contradictory evidence: that there is, and there is not, an employee of the same class who worked the requisite period of time in the same or similar employment, in the same or a neighboring place. Both propositions cannot be true, of course, and there is, naturally, a quite obvious element of incredibility that extends to all of the claimant’s evidence and argument, whatever it tends to show. More importantly, however, the claimant is faced with the distinct probability that the jury, owing to the contradictory evidence offered by the plaintiff himself, may remain unpersuaded as to either special issue, the first establishing the second standard and the next eliminating it. The result will be that the second standard is neither established nor eliminated and the claimant can never reach the third standard. There is, of course, no “conflict” in such answers—the jury simply were not persuaded as to either standard by the inherently contradictory evidence offered by one party. The threat pervading these circumstances presses inevitably and unfairly down toward the third standard as the only one the claimant has a fair prospect of establishing in a jury trial, contrary to the very statutory provision for alternative standards tailored to fit different circumstances.
On the other hand, if the defendant be given the burden of eliminating the second standard, and the resulting burden of submitting a negative form of the second standard, in cases where the claimant proceeds on a theory that only the second standard is applicable to his case, the act is allowed to work as it was intended. Moreover, we avoid repeated trials of the same claim while nevertheless permitting the claimant to proceed on his theory of the case and a fair opportunity of proving it.
*106I find no case which places upon the plaintiff the burden simultaneously to establish and eliminate the second standard when he relies upon it alone to establish his average weekly wage. The only judicial discussion of the issue suggests placing the burden on the defendant to eliminate the second standard in those cases where the defendant wishes to force the plaintiff to the third standard in order to avoid remand and a new trial. Fairness, convenience, and policy suggest that it is proper to require the defendant to assume the burden in such cases. I would therefore hold that the defendant must assume and discharge that burden in cases where the plaintiff chooses to plead and prove that only the second standard is applicable to his case; and, that we must remand the present case for a new trial because the second standard has not been eliminated from the case. And because Mrs. Holliman did not, in my view, have the burden of eliminating the second standard, she could not have “waived” a right to recover on the third standard by failing to submit special issues eliminating the second standard and establishing the third.
With these observations, I concur in the judgment reversing the judgment of the trial court and remanding for a new trial.