Globe Indemnity Co. v. McClurg ( 1931 )

On Rehearing.

We are in error in our original opinion in our conclusion that the allegation that appellant paid appellee “some compensation” was equivalent to a plea of adjustment of the average weekly, wage between appellee and appellant. Appellee pleaded specifically the basis of his average weekly wage, which was subject to the special exception discussed in the original opinion. Though the omissions in this plea were thus called to appellee’s attention, he declined to file an amendment, but relied upon this allegation as a basis for his cause of action, and introduced his evidence in support thereof, and was awarded judgment on the basis thereof. It is thereby made to appear affirmatively that the allegation that “some compensation” had been paid was not made by appellee to raise the issue of average weekly wage and not looked to by. the trial court as a basis of his judgment.

On the facts stated Texas Employers’ Ins. Ass’n v. Nelson (Tex. Civ. App.) 292 S. W. 651, 653, directly supports the conclusion that the allegation of payment of “some compensation” did not raise the issue of ayerage weekly wage. It was there shid that the court was “not required to scan a petition for the purpose of selecting certain portions which present allegations of fact, made for the purpose of sustaining one proposition, and to say that by intendment it also presents another and different proposition.”

From what has been said, it follows that appellant’s motion for rehearing should be granted and the judgment of the lower court reversed and the cause remanded for a new trial, which is accordingly ordered.