The writer respectfully dissents from the view that the evidence raised an issue as to whether or not all disability to the *Page 635 appellee's left hand resulted from the impaired use of some one or more of the fingers of said member. That is, that there existed only an injury to some one or more of the fingers alone without a hand injury. We construe the evidence of Dr. Puckett on the whole as denying the existence of any injury, either to the hand or fingers. As I see it, the nearest approach he made to testifying to an injury to the fingers was his statement that appellee complained of a pain in his fingers whenever he made an effort to close his hand. It occurs to the writer that pain in the fingers during such movement would almost of necessity accompany a hand injury. Otherwise expressed, the fingers are the highly flexible part of the hand, and a pain during their movement does not necessarily prove a finger injury separate and apart from one to the hand, but would be the likely, if not the necessary, result of a hand injury of the character here claimed. The purport of this testimony seems to be that appellee's claim of injury was a simulated one — "the joints of his fingers moved perfectly." The issue squarely made, in my opinion, was the existence of a hand injury, and the fact that appellee suffered pain in his fingers does not raise an issue of an injury to the fingers wholly distinct from and unrelated to any hand injury, so that it could be said that he suffered a specific injury to one or more of these members without injury to his hand.
The second point upon which the reversal is based is that the finding of $2.75 as the average daily wage earned by appellee was arbitrary and without evidence to support it and that subdivision 3, § 1, art. 8309, R.S., applies to the present facts.
The testimony of witness Morgan for the appellee is that he had lived in Amarillo for six years, was a common laborer, and acquainted with the wages paid such class, and that for a year preceding the injury such wages were 50 cents per hour upon an eight-hour per day basis. The witness Smith for appellee testified that such wages were $1.50 per day for said period. It is, we think, a matter of general information that the wage scale of the common laborer is not uniform either in the same or different communities. Will such lack of uniformity destroy their right to compensation under said subdivision 2? Or stated otherwise, is a jury compelled to accept the testimony of one witness as to such wage scale, and reject all testimony differing therefrom? Does the statute mean that there must be absolute uniformity in a wage scale before subdivision 2 applies? Could not the jury believe in this case that both Morgan and Smith testified truthfully and, so believing, find the average wages of common labor in Amarillo to be the sum of $4 plus $1.50 divided by two, which makes the precise verdiet returned? In the proper answer to these questions will be found the solution to a question perplexing and absolutely original in its facts so far as the writer has been able to ascertain. Does subdivision 3 apply here? If not, then we apprehend no contention will be made that the trial court erred in submitting appellee's case under subdivision 2. Subdivisions 2 and 3 are in the following language:
"2. If the injured employee shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.
"3. When by reason of the shortness of the time of the employment of the employee, or other employee engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties."
Properly interpreted in this case, subdivision 3 applies if the time of employment of the "employee or other employee engaged in the same class of work" is less than "substantially the whole of the year." This is the precise condition unmistakably written into the statute, but if "other good and sufficient reasons" exist the case may fall under subdivision 3. Here we have a record, as we interpret it, which reflects conclusively that common laborers as a class work the entire year, though the appellee did not, and his case is therefore ruled by the average daily wages received by employees of the same class working substantially the whole year. The writer is inclined to the view that this statute must be construed to mean that where, as here, common laborers work the whole year at wages running from $1.50 per day to $4 per day, the jury are at liberty to average their wages as was done by their verdict, and that said subdivision 3 has no application under such a state of facts. The question is not free from difficulty, but we are influenced in our view by the fact that the Legislature, knowing the varying character of the wages of common laborers, has specifically conditioned the application of subdivision 3 to cases where employment was for less than "substantially the whole of year immediately preceding the injury." If the nonexistence of this condition of employment transfers the case to subdivision 3, would not its existence prevent such transfer? We think so where, as here, it is possible to average the wages of common *Page 636 labor. Moreover, this construction seems to the writer to be in consonance with the beneficent provisions of this wholesome statute. As he views it, the effect of the construction placed by the majority tends to make the law unworkable as to common laborers. We apprehend in every future case involving common labor, evidence can be produced showing a lack of uniformity in wage scale.
The writer regards the present case on both points discussed as a precedent of unusual importance, which furnishes his excuse for writing at more length than might seem necessary.