On Motion for Rehearing.
Appellee, Lincecum, has filed a motion for rehearing, in which he urges that we erred in reversing the judgment of the trial court, because of failure to submit, unconditionally, whether or not appellee had suffered any partial incapacity, as set out in our original opinion. It is claimed *698that there was a total absence of evidence raising the issue of partial incapacity. The authorities cited by us are reviewed in this motion, and our attention is called to the fact that in each case it was said, in effect, that such issues should be submitted when the evidence raises the point. Likewise, we are cited to the case of Southern Underwriters v. Wheeler, Tex. Civ.App., 108 S.W.2d 846, in which this court held that no error was . shown by a failure to submit, unconditionally, certain issues as to partial incapacity, when the issue was in fact answered, in disregard of the preamble complained of. However, the Supreme Court granted a writ of error in that case and reversed our holdings. Southern Underwriters v. Wheeler, Tex.Com.App., 123 S.W.2d 340. In the latter opinion the particular issue complained of, as discussed by us, was not singled out; yet the broad rule was announced, that such issues were essential to the association’s defense plead under a general denial, and if there was any substantial evidence offered, they must be submitted affirmatively and unconditionally. The cases cited by us in the original opinion are to the same effect. The principle announced in these cases is not denied by appellee, but he contends there was no evidence adduced to raise the issue.
While we, did not attempt to enumerate the phases of the evidence on the point in the original opinion, we considered that question was raised. Briefly stated, the record shows the employee did light work at intervals after he received the injury; he did the chores about the home, such as getting the wood and water, carrying the water about a quarter of a mile from a spring; that he had carried some poles on his back for wood; that he had helped do some painting on a house; that he had hauled wood on a wheel-barrow about a quarter of a mile; that he went in an automobile five or six miles, often to see the doctor. A letter was introduced in evidence, written by Dr. Shaw, a member of the Clinic Staff, in which the doctor expressed the opinion that he doubted if plaintiff’s injuries were serious, referring to them as “oil-field” back injuries. Dr. Shipp, who testified for appellee, identified the letter of his partner, Dr. Shaw, and stated that the business manager of the Clinic had the authority to make out the reports in such cases and to sign his name to them. Dr. Shipp testified in full as to the extent of appellee’s injuries, and gave as his opinion that Lincecum was totally and permanently incapacitated. He further said he had had occasion to observe him often since the injury; in fact, had done his family practice and delivered his baby, then present in the court room. These things we think were sufficient to require the submission of the issue of partial incapacity.
While the question is not raised by ap-pellee in 'his motion, for he has no complaint on the point, we note, by a careful reading of our former opinion, we announced a rule, the correctness of which we now doubt. At least, it is misleading and may cause the trial court to go into error upon another trial. The fourth paragraph from the last of the opinion, beginning with these words: “Propositions 18 and 19 complain,” etc., is here withdrawn. The assignment there discussed was one (by carrier) complaining, that the court had not submitted to the jury an1 issue from which it could be determined whether or not the employee had worked substantially for a year, at the same or similar employment as that engaged in when injured.
We now say, in lieu of the paragraph withdrawn, that since the burden of proof was upon appellee to show that his average weekly wage rate must be fixed under one of subsections 1, 2 or 3 of Article 8309, Section 1, in the order named, he must show by competent evidence that he had worked in the employment in which he was engaged when injured, whether for the same employer or not, substantially for the whole of the year immediately preceding the injury, before he can have his wage rate fixed under that subsection, as was done in this case. This becomes a fact for determination by the jury, when one is had. In this case,- the employee alone testified to these matters, but it has often been held that the evidence of an interested party uncorroborated by any other fact or circumstance is not sufficient to legally establish a controverted fact. The general denial of appellant controverted every legal phase of appellee’s right of recovery. His 'testimony raised a fact issue for determination by the jury and should have been passed upon by it. Thraves v. Hooser, Tex. Com. App., 44 S.W.2d 916, and the authorities there cited. If the testimony upon another trial should be the same as it was at the *699last, the court should submit that issue to the jury.
With the correction mentioned, the motion of appellee for rehearing is overruled.