On Motion for Rehearing
In our original opinion we held “that the jury’s answer to special issue number 13 was against the overwhelming weight of evidence”; said portion of our original opinion is withdrawn.
In his vigorous motion for rehearing appellee asserts we committed error in finding there was no evidence to support the jury’s answer to special issue number 13. Appellee pleaded facts which would bring him under section 1, Subdivisions 1, 2 and 3 of Article 8309. The appellant’s general denial was sufficient to put these matters in issue. Rule 92, Rules of Civil Procedure. While testifying and attempting to eliminate or establish facts which would bring him under Subdivision 2, he testified that he knew of a man at O’Donnell who worked the year around at a gin doing the same kind of work that he was doing. As a party to the suit, his testimony must be construed as binding on him. Southern Surety Co. v. Inabnit, Tex.Civ.App., 1 S.W.2d 412. Appellee had the burden of eliminating Subdivisions 1 and 2 before he was entitled to resort to Subdivision 3. There was no evidence to support the jury’s answer that “another employee had not worked”.
Appellee also contends that by paying him compensation at the maximum rate for twenty-two weeks, the appellant admitted his compensation and wage rate and there was no burden on him to establish his wage rate under Article 8309. We think Judge Hickman has held contrary to appellee’s contention in Southern Underwriters v. Schoolcraft, Tex.Com.App., 138 Tex. 323, 158 S.W.2d 991, 995, when he said: “Courts should encourage and not discourage the prompt payment of compensation when an injury is sustained by an' employee, and a holding that payments made pending the final investigation of the claim would be binding upon the insurer both as to liability and rate of compensation regardless of what that investigation should disclose would manifestly discourage prompt payments following injuries.”
Appellee’s motion for rehearing is overruled.