Liles v. FAULKNER NEON & ELECTRIC COPANY

94 S.E.2d 790 (1956) 244 N.C. 653 Purvis Graham LILES and Mettle Pace Liles, Parents and Next of Kin of Graham Ray Liles, Deceased, v. FAULKNER NEON & ELECTRIC COPANY, Employer, and Iowa National Mutual Insurance Company, Carrier. No. 242. Supreme Court of North Carolina. October 31, 1956. *793 Ruark, Young & Moore, Raleigh, for defendants, appellants. Carr & Gibbons, Wilson, for plaintiffs, appellees. BOBBITT, Justice. Is the evidence sufficient to support the Commission's conclusion that it would be unfair and unjust to compute decedent's "average weekly wages" by dividing his total earnings by eleven, whereby the result would be $26.88, and to warrant the finding and conclusion that the award should be based on "average weekly wages" of $34.88? The court below answered in the affirmative. We are constrained to hold that controlling statutory provisions necessitate a negative answer. Unquestionably, decedent had the capacity to earn $34.88 per week "in the employment in which he was working at the time of the injury." The fact is that he earned "average weekly wages" of $26.88. Presumably, full-time work would have been available to him in this employment. The fact is that "he was employed in a parttime capacity." He worked whenever he was free to do so. The fact is that while attending college he was not available for full-time work. In a common law tort action, or in a statutory action for wrongful death, earning capacity, present and prospective, is an important and proper element of damages. A workman's compensation claim, which is not based on tortious conduct, is unknown to the common law; and the basis for the award as well as the validity of the claim is determinable solely by the provisions of the statute. Under applicable statutory provisions, may an award be based on earning capacity of the injured employee in the employment in which he was working at the time of the injury? *794 Under G.S. § 97-2(e), "average weekly wages" of the employee "in the employment in which he was working at the time of the injury" must be related to his earnings rather than to his earning capacity. The word "average" is defined by Webster as "`a mean proportion, medial sum or quantity made out of unequal sums or quantities.'" Stevens v. Black, Sivalls & Bryson, 39 N.M. 124, 42 P.2d 189, 190. Within the statutory limits, the method for determining such "average weekly wages" depends on the facts of each case. If the employee has worked in such employment during the period of fifty-two weeks immediately preceding the day of injury, the prescribed (first) method is to divide his total earnings during that period by fifty-two. The "average weekly wages" so determined may exceed the employee's weekly wages at the time of his injury, for example, where his compensation during the early part of the 52-week period exceeds his compensation during the latter part thereof. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426. The Commission found that "it would be impractical to compute his (decedent's) average weekly wages by basing same on his average earnings for the previous 52 weeks." Obviously, it would be impossible to do so. The said first method does not apply when as here the period of employment prior to injury is less than fifty-two weeks. In such case the prescribed (second) method is to divide the employee's earnings over the period of employment by the number of weeks or parts thereof during which the employee earned wages, subject to the proviso that by such method results fair and just to both parties will be obtained. If determined by this method, decedent's "average weekly wages" were $26.88. If results fair and just to both parties will not be obtained by application of the said second method, another (third) method is prescribed, viz.: "Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community." (Italics added.) A further provision is in these words: "But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury." (Italics added.) This provision, while it prescribes no precise method for computing "average weekly wages," sets up a standard to which results fair and just to both parties must be related. The Commission undertook to apply the said third method. Careful consideration of the evidence impels the conclusion that there is no factual basis for its application. There is no evidence as to the average weekly amount being earned during the fifty-two weeks previous to decedent's injury by a person of the same grade and character employed in the same class of employment. Nor is there evidence as to the average weekly amount a part-time worker, employed as a helper, had earned during the fifty-two weeks previous to decedent's injury, while working for this employer or any other in the same locality or community. A person of the same grade and character employed in the same class of employment would be a part-time, not a full-time worker. This construction is in accord with decisions in other jurisdictions having similar statutory provisions. In re Rice, 229 Mass. 325, 118 N.E. 674, Ann.Cas.918E, 1052; White v. Pinkerton Co., 155 Tenn. 229, 232, 291 S.W. 448; Ruppert v. Plattdeutsche Volksfest *795 Verein, 263 N.Y. 338, 189 N.E. 240; Barlog v. Board of Water Com'rs, 239 App. Div. 225, 267 N.Y.S. 822; Derion v. Gilford Mfg. Co., 282 App.Div. 788, 122 N.Y. S.2d 444; State Road Commission v. Industrial Commission, 56 Utah 252, 190 P. 544; Brisendine v. Skousen Bros., 48 Ariz. 416, 62 P.2d 326, 112 A.L.R. 1089. There is no evidence that any part-time worker, the nature of whose employment was similar to that of decedent, earned "average weekly wages" over his period of employment greater than $26.88. The inescapable fact is that the Commission determined the "average weekly wages" of a part-time employee to be the amount he would have earned had he been a full-time employee. In Munford v. West Construction Co., 203 N.C. 247, 165 S.E. 696, decedent had been employed some three months at the time of his injury. The Commission had found as a fact that decedent's work "in the beginning of his employment * * * was not regular, but later he was assigned a truck and placed upon regular duty." Based thereon, the Commission made a further unchallenged finding of fact that results fair and just to both parties would not be obtained by said second method; and this Court upheld an award based on the average weekly amount earned by a person of the same grade and character employed in the same class of employment, to wit, a full-time truck driver. In Mion v. Atlantic Marble & Tile Co., Inc., 217 N.C. 743, 9 S.E.2d 501, 505, the decedent, who had worked less than fiftytwo weeks prior to his injury, had twice received an increase in hourly pay. This Court held erroneous an award based on his average weekly wages during the last seven weeks of his employment, during which his compensation was greater than during the preceding portion of his period of employment. As stated by Winborne, J., (now C. J.): "There is no finding that under the method provided as stated above [second method] for ascertaining the average weekly wage, the results here would be unfair to both parties, nor is there evidence tending to show such state of facts." In Early v. W. H. Basnight & Co., 214 N.C. 103, 198 S.E. 577, 578, decedent, who had been a warehouse clerk for three years or thereabout, was promoted to the position of salesman some six months before his fatal accident. When injured his salary was $100 per month, or $23.07 per week, substantially more than he had earned as warehouse clerk. This Court held the evidence sufficient to support these findings by the Commission: "`(4) That for exceptional reasons the average weekly wage of the plaintiff's deceased over the twelve months immediately preceding his injury and death, would be unfair to the deceased employee and his dependents. (5) That the plaintiff's deceased would have been earning $23.07 per week if it had not been for the injury.'" It is noted that this statement appears in the opinion of the Commission: "`The Full Commission has not taken into consideration the anticipated increase, but has given consideration to the actual increase that the deceased received from January 1 to March 16.'" This Court held that the words, "the foregoing," in the second paragraph of G.S. § 97-2(e) referred to the three methods set out in the first paragraph thereof. Winborne, J. (now C. J.), speaking for this Court, said: "Hence, it is manifest that where exceptional reasons are found which make the computation on the basis of either of `the foregoing' methods unfair to the employee, the legislature intended that the Industrial Commission might resort to such other method of computing the average weekly wages as would most nearly approximate the amount the injured employee would be earning if lie were living." (Italics added.) True, as stated by Clarkson, J., in Munford v. West Construction Co., supra, all provisions of G.S. § 97-2(e) must be considered in order to ascertain the legislative intent; and the dominant intent is that results fair and just to both parties *796 be obtained. Ordinarily, whether such results will be obtained by the said second method is a question of fact; and in such case a finding of fact by the Commission controls decision. However, this does not apply if the finding of fact is not supported by competent evidence or is predicated on an erroneous construction of the statute. The words "fair and just" may not be considered generalities, variable according to the predilections of the individuals who from time to time compose the Commission. These words must be related to the standard set up by the statute. Results fair and just, within the meaning of G.S. § 97-2(e), consist of such "average weekly wages" as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury. In Munford v. West Construction Co., supra, the actual earnings of the employee at the time of his injury were the wages of a full-time truck driver; and in Early v. W. H. Basnight & Co., supra, the actual earnings of the employee at the time of his injury were those of a salesman, not those of a warehouse clerk. When G.S. § 97-2(e) is so construed, the evidence does not warrant a finding of fact or conclusion of law that the said second method would not obtain results fair and just to both parties. There is no evidence that decedent at the time of his injury was earning or would thereafter earn greater wages in his said part-time employment than he had previously earned. On the contrary, his greater earnings in his said part-time employment were before the regular college term began; and, when the said second method is applied, plaintiffs get the benefit of his greater earnings during that period. We are mindful of persuasive reasons in favor of statutory provisions under which the rule contended for by appellees would be applied. In a similar situation, Bickley, J., speaking for the Supreme Court of New Mexico in Stevens v. Black, Sivalls & Bryson, supra, aptly said [39 N.M. 124, 42 P.2d 190]: "However this may be, it is beyond our power to regulate, our sole task is to ascertain the measure of compensation fixed by the statute. If the statute does not work with justice to the workmen, this is a matter for the Legislature." After the decision in the Stevens case, 1935, supra, the New Mexico statute was amended. As amended, it provided in substance that where an employee is being paid by the hour the daily wage of such employee, as basis for an award, is to be determined by multiplying the number of working hours in the day of the employee's injury by his hourly rate of pay; and that his weekly wage is to be determined by multiplying his said daily wage by the number of working days or fractions thereof in the week of the employee's injury. A new formula was thus substituted for the original provisions. La Rue v. Johnson, 1943, 47 N.M. 260, 141 P.2d 321, 325. In the La Rue case, Brice, J., cites and discusses cases from other jurisdictions based on statutory provisions similar to those contained in the amended New Mexico statute. In doing so, he draws the distinction between such statutory provisions and those where compensation "is based upon actual earnings, and not upon capacity to earn." Unfortunately for appellees, our statute falls into the latter classification. Upon this record, the "average weekly wages" of decedent are to be computed in accordance with the said second method prescribed by G.S. § 97-2(e). Hence, there is error in the judgment of the court below; and, upon certification of this opinion, the court below will remand the proceeding to the Commission to the end that it enter an award based on "average weekly wages" under G.S. § 97-2(e) as construed herein. Also, there is error in the portion of the judgment of the court below requiring defendant carrier to pay plaintiffs' *797 costs, including attorney fee, incident to the appeal by defendants from the Commission to the superior court. G.S. § 97-88 does not apply when as here this Court finds error in the Commission's decision in respect of the sole controversy presented by the appeal. Error and remanded. JOHNSON, J., not sitting. PARKER, J., dissents.