Now, where the jury intentionally found an amount beyond that sued for or the evidence showed, the error could be cured by a remittitur. In Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App. 31 S.W.2d 669, 673, where one juror stated to another his construction of the court's charge that appellee be given the benefit of the doubt as to the proper answer of the special issues, the Eastland court said: "We do not believe that we can hold, as a matter of law, that the juror's expressed misconstruction of a court's charge is misconduct requiring a new trial." In Kindle v. Packing Co., Tex. Civ. App. 103 S.W.2d 471, the trial court gave to the jury the definition of proximate cause as applied to a special issue.

Since section 12b makes no provision for disability from the time of injury to the time of the operation, an employee must be compensated for that disability as a general injury. Dallas I.S.D. has cited two cases which state that compensation is limited to 26 weeks regardless of the actual period of incapacity. National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089 (1940); and the court of civil appeals opinion in Texas Employers' Insurance Association v. Henson, 31 S.W.2d 669 (Tex.Civ.App. Eastland 1930), reversed on other grounds, 48 S.W.2d 970 (Tex.Comm'n App. 1932, holding approved), modified 52 S.W.2d 247. These cases and others are discussed in the majority opinion of the court of civil appeals. Neither of these cases addressed the question of compensation between the date of injury and the date of the operation.

Is there any reason why the legislature may not provide a time limit for certain operations and not for hernia operations? Exactly the same question was presented to the Texas court in Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App., 31 S.W.2d 669. In that state there is a special provision for hernia cases in section 12b of Article 8306, Revised Statutes of Texas 1925, which provided for medical and hospital bills.

Several cases, however, have referred to the fact that section 12b limits compensation to payment for surgery plus twenty-six weeks of pay in cases in which the employee submits to successful surgery, regardless of the actual period of incapacity. See National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, 1091 (1940); Texas Employers' Insurance Association v. Henson, 31 S.W.2d 669, 671 (Tex.Civ.App. Eastland), Rev'd on other grounds, 48 S.W.2d 970 (Tex.Comm'n App. 1932, holding approved). The court in Lowery stated:

We will review each case so cited. Texas Employers' Insurance Association v. Henson, Tex.Civ.App., Eastland, 31 S.W.2d 669, Texas Commission of Appeals opinions, 48 S.W.2d 970, 52 S.W.2d 247. Jury misconduct was mentioned only by the Court of Civil Appeals. There the court held that a juror's expressed construction of a court's charge as requiring plaintiff in a Workman's Compensation Case to be given the benefit of the doubt in answering issues was not, 'as a matter of law * * * misconduct requiring a new trial.'

In the instant case that optional right has not been exercised by appellant, nor was such right rendered nonavailable to the appellant by any action of the employee. Such a construction of the statute has been forecast in previous decisions of the courts of this state, particularly in Texas Employers' Insurance Ass'n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Texas Employers' Insurance Ass'n v. Henson, Tex.Civ.App. 31 S.W.2d 669, 671, reversed on another ground. Tex.Com.App., 48 S.W.2d 970; Texas Employers' Insurance Ass'n v. Howell, Tex.Civ.App. 37 S.W.2d 343; Columbia Casualty Co. v. Ray, Tex.Civ.App. 5 S.W.2d 230. In order to state a cause of action entitling plaintiff to an award of compensation for total and permanent disability for an injury consisting of hernia he no doubt considered that it was necessary by affirmative averment to show that his rights had not been limited as said section 12b conditionally provides may be done.

These matters are left "open", unless the provisions quoted above are intended to apply. We are familiar with the decision of the Court of Civil Appeals for the Eastland District, in the case of Texas Employers' Ins. Ass'n v. Henson, 31 S.W.2d 669, wherein the court virtually holds that hernia is not a specific injury, in the same sense as the injuries enumerated in section 12 of Article 8306, and that such injury being specifically provided for in section 12b of said Article, the other provisions of the Compensation Law do not apply to hernia cases. A writ being granted in that case, the Supreme Court reformed and affirmed the judgment, on motion for rehearing, after having first reversed and remanded the cause.

The rule of construction adhered to by the courts of this state is that if a contract under one condition would be valid and under another void, the presumption is in favor of its validity. In Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App. 31 S.W.2d 669 (reversed by Supreme Court on other grounds than that here involved, 48 S.W.2d 970), the court had under consideration a contract which required work on Sunday, and whether or not it was such as would support a claim for compensation. The court there said (page 672): "Not all work or labor performed on Sunday is unlawful.

Under such allegations and proof he is entitled to compensation under the more liberal provisions of the act. Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App. 31 S.W.2d 669, reversed on other grounds, Tex.Com.App., 48 S.W.2d 970; Texas Employers' Ins. Ass'n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967. In his petition appellee alleged his wages to be $21 a week, but prayed for a lump sum award in the sum of $2,810, which would be much less than 401 times 60 per cent.

The assignments complaining of this jury finding and the court's action therein are overruled. No presumption will be indulged that the work was of an unlawful character. Indeed, it is invariably held that the presumption of innocence will be indulged. Daniels v. Southern Surety Co. (Tex.Civ.App.) 40 S.W.2d 209; Texas Employers' Ins. Ass'n v. Henson (Tex.Civ.App.) 31 S.W.2d 669; Lloyds Casualty Co. v. Grilliett (Tex.Civ.App.) 64 S.W.2d 1005; Casualty Reciprocal Exchange v. Stephens (Tex.Com.App.) 45 S.W.2d 143. The question was submitted fairly to the jury, and the assignment challenging the action of the court is overruled. All assignments not discussed have been considered and are overruled.