Casey v. . Board of Education

ScheNck, J. Tbe findings of fact are amply supported by competent evidence, and were therefore binding upon tbe Superior Court and upon this Court. Public Laws 1929, cb. 120, sec. 60 (N. C. Code of 1939 [Micbie], 8081 [ppp]); Early v. Basnight & Co., 214 N. C., 103, 198 S. E., 577; Saunders v. Allen, 208 N. C., 189, 179 S. E., 754; Buchanan v. Highway Commission, 217 N. C., 173, 7 S. E. (2d), 382. Tbe Workmen’s Compensation Act is applicable to tbe State School Commission and to county and city administrative school units. Cb. 358, see. 22, Public Laws 1939. Tbe pertinent portion of said section of said act being as follows: “Liability of tbe State for compensation shall be confined to school employees paid by tbe State from State School funds for injuries or death caused by accident arising out of and in tbe course of their employment in connection with tbe State operated eight months *742 school term. . . . The County and City administrative units shall be liable for 'Workmen’s Compensation for school employees whose salaries or wages are paid by such local units from local funds, . . .” According to the findings of fact by the Commission the plaintiff was not working for and was not being paid by the State School Commission at the time of his injury by accident. He was engaged in the performance of his duties incident to school plant maintenance, for which the State School Commission was in no wise responsible and for which employment the State School Commission was not liable. He was engaged in this work at night, under a separate contract of employment with the Board of Education of the city of Durham, in a school building of which he was not the custodian, and while so1 engaged in the employment of the city board he sustained an injury arising out of and in the course of such employment. The facts found support the conclusion of law reached and the award made. It would seem that the principal question involved in this appeal is whether the Commission employed a proper method in the computation of the average weekly wage of the plaintiff. The pertinent provision of the Workmen’s Compensation Act for determining the average weekly wage of an injured employee is found in chapter 120, section 2, subsection (e), of the Workmen’s Compensation Act of 1929. That section, after providing for the methods of computing the average weekly wage which are not applicable to this case, provides as follows: “But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computation of 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 his injury.” The Commission found as a fact that on account of exceptional reasons, arising upon the facts, it would be unfair to the employee to employ the other methods for computing the average weekly wage and that it would be fair to compute such wage upon the basis of the amount customarily earned. It would seem that upon the facts found the Commission, in the exercise of its broad administrative powers, adopted a fair method of computing the average weekly wage of the plaintiff by ascertaining the approximate amount the plaintiff would have earned had he not been injured. Early v. Basnight & Co., supra. The endorsement 1721 attached to the policy issued by appealing insurance carrier, which relieves or lessens the carrier’s liability in cases where the employee receives his remuneration in whole or in part from the State, would seem to have no application in this case, since the Commission has found, upon competent evidence, that the plaintiff’s accident *743 arose out of and in the course of his employment by the city board, in the payment of the remuneration for such employment the State had no part. The judgment of the Superior Court is Affirmed.