Appellees, Pink and Lizzie Greenhaw, claimed compensation in this suit, under the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., as the surviving mother and father of Jeff Green-haw, deceased. Appellant (plaintiff in the trial court) instituted the suit as an appeal from the award of the Industrial Accident Board of the state of Texas. Appellees alleged Jeff Greenhaw sustained an accidental personal injury in the course of his employment with, L. G. Blumentritt, at Ir-aan, Pecos county, Tex., which resulted in his death. This is an appeal from a judgment- in favor of claimants, against appellant,, the insurance carrier, for 360 weeks’ compensation.
Special issues were submitted to the jury. Among other findings were the following: That the average daily wage of an employee of the same class as that of the deceased, Jeff Greenhaw, working substantially the whole of the year immediately preceding November IS, 1935, in the same employment in the same place where the deceased, Jeff Greenhaw, was employed, was $4; the average daily wage of an employee of the same class as that of the deceased, Jeff Greenhaw, working substantially the whole of the year immediately preceding November 15, 1935, in similar employment in the same place where the deceased, Jeff Greenhaw, was employed, was $4; that defendants would suffer a manifest hardship and injustice if the plaintiff failed to redeem its liability, if any, by the payment of a lump sum. Upon these answers the court rendered judgment for $4,097.68,- “less one-fourth thereof, deducted for purpose of fairness in view of the undisputed fact the wages of the employee, Jeff Greenhaw, were $3.00 per day, making the sum for which said judgment is here rendered of $3,073.19,” etc.
The evidence was undisputed that decedent Greenhaw worked for only 5 months during the year preceding November 15, 1935, the day he was alleged to have been injured, though his employer estimated at one time that he had worked about 200 days. There was no evidence that an employee of the same class as decedent worked for substantially the whole of the year preceding said day in the same or similar employment in the same or a neighboring place. Decedent’s employer testified that from July to November, 1935, the wage of decedent was $3 per day, plus the reasonable value of a room, furnishings and lights, estimated at $10 per month.
Opinion.
Our labors have been lightened considerably by the candor of counsel for appellees who confessed that the court erred in fixing the average wage at $3 per day. They insist, though, that the error was not prejudicial to appellant, and therefore not reversible. With this conclusion we cannot agree. The facts did not warrant the submission of the tests provided in either first subdivision 1 or first subdivision 2 of section 1 of article 8309. If the average wage was to be arrived at according to first subdivision 3, the issue should have been submitted to the jury. The court was not free to reject the finding of the jury and enter judgment upon its own finding based upon a different theory. It was necessary that the judgment follow the verdict. Article 2211, R.C.S.,1925. Under the circumstances the court should have granted a new trial; and it is now the duty of this court to reverse and remand. American Employers’ Ins. Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26; Norwich Union Ins. Co. v. Chancellor, Tex.Com.App., 5 S.W.2d 494; National Indemnity Under*364writers of America v. M. H. Cherry, Tex. Civ.App., 110 S.W.2d 115; Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108.
In view of the fact that another trial will be had we refrain from commenting upon the evidence.
Appellees urge a cross-assignment complaining of the court’s action in refusing to admit in evidence the written argument filed before the Industrial Accident Board by appellant, which included in its statements the claim of the decedent that he was injured on November 15, 1935, while loading a box into the back of a truck at Iraan, Tex. In tire written argument it was not denied that he received said injury, but appellant denied that the injury complained of caused the disability from which Greenhaw then suffered; and, therefore, denied liability for any compensation whatsoever. Appellees contend that this treatment of the statement made by decedent was an approval of said statement as correct, and thus should have been received against appellant as an admission by adoption, citing the well-considered case of Thornell v. Missouri State Life Ins. Co., Tex.Com.App., 249 S.W. 203. As we understand it, the instrument proffered in evidence was not the report of accident required of subscribers by section 5 of article 8309 and by statute made incompetent as an admission or evidence against the association in proceedings in contested cases where the alleged facts set out are sought to be contradicted by the association or subscriber. This instrument, we understand, is an argument in which it is presumed ordinarily that the party interested will urge every' substantial defense of which he knows, and will not tacitly admit, or appear to admit-, .or leave in doubt his views as to, the truth of damaging allegations unless convinced of their truth. Under the circumstances wé think the instrument admissible in evidence in behalf of appellees. 2 Wigmore on Evidence, § 1073. The objection of appellant that the cross-assignment of error was not filed in the district court is no longer tenable, since the amendment of article 1844, R.C.S., by Acts 1931, c. 75, § 1, Vernon’s Ann.Civ.St. art. 1844.
Assignments of error not discussed are overruled.
The judgment of the district court is reversed, and the cause remanded.