Barnhardt v. Yellow Cab Co., 278

• Decision Date: 04 February 1966
• Docket Number: No. 278,278
• Citation: 266 N.C. 419,146 S.E.2d 479
• Court: North Carolina Supreme Court
• Parties: Tony James BARNHARDT v. YELLOW CAB COMPANY, Inc. and Great American Insurance Company.

Page 479

146 S.E.2d 479

266 N.C. 419

Tony James BARNHARDT v. YELLOW CAB COMPANY, Inc. and Great American Insurance Company.

No. 278.

Supreme Court of North Carolina.

Feb. 4, 1966.

Robert L. Scott, Charlotte, for plaintiff appellee.

Helms, Mulliss, McMillan & Johnston, by Larry J. Dagenhart, Charlotte, for defendant appellants.

SHARP, Justice.

When an employee who holds two separate jobs is injured in one of them, may his compensation be based on his average weekly wages from both, or must it relate only to the wages earned in the job producing the injury? This is the determinative question posed by this appeal.

Compensation to an injured employee under the North Carolina Workmen's Compensation Act is based upon his average weekly wages as defined by G.S. § 97-2(5), the pertinent portions of which follow with our enumerations, paragraphing and italics:

'Average Weekly Wages.--(1) 'Average weekly wages' shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury, including the subsistence allowance paid to veteran trainees by the United States government, provided the amount of said allowance shall be reported monthly by said trainee to his employer, divided by fifty-two; but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. (2) Where the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained. (3) 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.

'(4) 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.'

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'(5) In case of disabling injury to a volunteer fireman under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer fireman was earning in the employment wherein he principally earned his livelihood as of the date of injury.'

As enumerated above, G.S. § 97-2(5) provides five possible methods of determining 'average weekly wages.' In making its award to plaintiff, the Industrial Commission purported to use method (4). Because plaintiff had been driving the cab for only five weeks when he was injured, defendants concede that the Commission was authorized to use method (4) to arrive at an average weekly wage in his taxicab employment of $26.90, a sum larger than plaintiff had earned during any week of cab driving. Defendant maintain, however, that 60% of this figure, or $16.14 per week, is the limit of their liability. Defendants' position is that the Commission may require an employer to pay compensation only as authorized in the Act, which does not permit aggregation of wages from different employments. Specifically they contend: (a) The first declaration in G.S. § 97-2(5), i.e., that "[a]verage weekly wages' shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury,' is applicable not only to method (1) but to all other methods except (5), which is expressly exempted from this absolute limitation. Although method (3) permits the wages of another individual to be considered, such wages must be earned 'in the same class of employment,' in the same community, and 'by a person of the same grade and character.' (b) In all methods, G.S. § 97-2(5) requires that results fair to both employer and employee be obtained. It would be unfair to an employer and his carrier to burden them with a liability out of proportion to employer's payroll and the premium computed thereon.

Plaintiff contends: (a) the extent of his injuries, which eliminates any possiblity that he will ever again be gainfully employed, provides the 'exceptional reasons' for which method (4) was enacted. (b) It would be unfair to the employee to base his compensation on an average weekly wage which was only about one-third of his actual earnings. (c) Method (4) authorizes the computation which will most nearly approximate the average weekly wages the employee would be earning had he not been injured. Since this provision does not, ipsissimis verbis, restrict such earnings to the employment in which the injury occurred, the Legislature must have contemplated the aggregation of earnings from any and all sources. (d) In determining 'disability,' the employer is given the benefit of the employee's earnings 'in the same or any other employment.' G.S. § 97-2(9). (Italics ours.) Therefore, in exceptional cases, G.S. § 97-2(5) should be liberally construed to give the injured employee the benefit of his earnings in that other employment. (e) This Court in Casey v. Board of Education, 219 N.C. 739, 14 S.E.2d 853, has already decided in plaintiff's favor the question presented.

According to Larson, Workmen's Compensation Law § 60.31 (1961), 'It is generally held, sometimes by virtue of an express statute and sometimes not, that the wage basis of an employee injured in one of two related employments in which he is concurrently employed should include his earnings from both employments. Most concurrent employment controversies therefore resolve themselves into the question of what employments are sufficiently related to come within the rule.' To the same effect, see 99 C.J.S. Workmen's Compensation § 294d (1958); 11 Schneider, v. Workmen's Compensation Text § 2190 (3d Ed. 1957). In the absence of a controlling statute, however, it is difficult to perceive any convincing reason why wages from similar jobs should be aggregated when those from dissimilar jobs are not. A disabled employee, accustomed to full earnings, is no less destitute because he happened to be earning his living in unrelated employments. As to the employer in whose employment the worker was injured, it is he who pays the compensation--not 'the industry'; and the other wages which the injured employee was earning in a similar job are no more 'insured' (or taken into account in reserves, if employer is a self-insurer) than those earned in dissimilar employment.

Statutory provisions fixing the wage basis of an injured employee entitled to compensation vary widely in the jurisdictions. Some states, including New York and Texas, provide for aggregation of earnings from concurrent related or similar employments. Four states--California, Maine, Massachusetts and Pennsylvania--require that wages from all employments be combined. The problem of the injured part-time worker has also been solved by reckoning his wages 'as earned while working full time.' De Asis v. Fram Corp., 78 R.I. 249, 81 A.2d 280. Many states, like North Carolina, restrict the wage base to the employment in which the injury occurred. Of these states, however, only five--Arkansas, Michigan, New Mexico, South Carolina and Virginia--also have the equivalent of our method (4), the 'exceptional reasons' provision. Our research reveals that of these five states, only Michigan and South Carolina have considered this precise question.

In Buehler v. University of Michigan, 277 Mich. 648, 270 N.W. 171, plaintiff, a cleaning woman, was employed by a private sorority house and by the University of Michigan. She was injured while working in one of the University's buildings. The Michigan Department of Labor and Industry awarded compensation based upon her total earnings in both employments. The Supreme Court reversed, saying:

'We have nothing to do with the policy of the law. That is a matter for the Legislature. But, under the facts in this case, plaintiff was not employed by one of these employers for the benefit of the others. Her employment by each of her employers was separate and distinct from her employment by the others and, under the law, the university may not be held liable for compensation computed on the basis of what plaintiff earned when not employed by the university, and the insurer may not be held liable for compensation based upon earnings by the plaintiff while not on the pay roll of the insured.' Id. at 651, 270 N.W. at 172. (Italics ours.)

The facts in the case at bar are indistinguishable from those in McCummings v. Anderson Theatre Co., 225 S.C. 187, 81 S.E.2d 348. The opinion in Anderson quotes South Carolina's Code of Laws § 72-4 (1952), which appears to be identical with our G.S. § 97-2(5). In McCummings, plaintiff regularly earned $55.00-$60.00 a week as a brickmason. He was injured while engaged in his part-time job of relief-projectionist and carpenter at $6.00 per week for defendant Theater Company. The Commission held that it would be unfair to plaintiff to compute his wage basis at $6.00, and the Supreme Court of South Carolina upheld the resulting award based on his combined wages, $61.00 per week. In doing so, however, the court said:

'(W)e find no error * * * but such is not to be considered as a precedent for the purpose of computing an employee's average weekly wages within the contemplation of ...