Dependents of Harris v. Suggs, 40795

• Decision Date: 19 May 1958
• Docket Number: No. 40795,40795
• Citation: 102 So.2d 696,233 Miss. 533
• Court: Mississippi Supreme Court
• Parties: Matthew HARRIS, Deceased, DEPENDENTS OF, v. W. H. SUGGS, Jr., and United States Fidelity & Guaranty Company.

Page 696

102 So.2d 696

233 Miss. 533

Matthew HARRIS, Deceased, DEPENDENTS OF, v. W. H. SUGGS, Jr., and United States Fidelity & Guaranty Company.

No. 40795.

Supreme Court of Mississippi.

May 19, 1958.

Tucker & Baine, Woodville, for appellants.

H. B. Mayes McGehee, Meadville, for appellees.

GILLESPIE, Justice.

The deceased employee died from injuries arising out of and in the course of his employment. At the hearing before the attorney-referee the point at issue was the average wage of the deceased employee. The attorney-referee found that the average weekly wage was $30.65, and awarded compensation on that basis. The order of the attorney-referee assessed the $100 penalty for failure of the employer and insurer to report the accident within the time allowed by statute. It did not assess the penalty under Section 6998-19(e), Mississippi Code of 1942, and did not provide for interest on installments of compensation not paid when due. The Commission, by majority vote, and the circuit court affirmed the order of the attorney-referee. The appellants are the dependents of the deceased employee.

It is first contended that it was error to fix the average weekly wage of the deceased employee at $30.65. The deceased employee had been employed in the logging operations of the employer for a number of years. He was hired on an eight hour day, five day week, one dollar per hour basis. He was not paid when he did not work. During the 52 weeks immediately prior to his death, the employee lost 66 days from work. There were four weeks during this period when the employee did no work and drew no wages. The proof showed that because of rain or other causes the employee would on the average lose about 40 to 60 working days during a 52-week period. Most of the time lost by the employee was due to breakdowns in the mill, oversupply of logs, or rain. Some of the days lost by the employee were of his own volition, but it was not shown just how many. The attorney-referee determined the average weekly wage by deducting the four weeks during which no wages were earned and dividing the total wages earned by the employee during the 52 weeks immediately before the fatal injury, amounting to $1,471, by 48, and arrived at the average weekly wage of $30.65. It will be noted that the divisor included each week in which the employee earned any wages and did not deduct the days lost here and there during the 52-week period prior to the fatal injury, unless the days lost were consecutive and exceeded seven. Appellants contend that this was error; that the proper method of determining the average weekly wage would be to divide the 66 days lost by five, the work week, which would equal 13.2 weeks lost in the 52-week period, subtract 13.2 from 52, and divide the total earnings for the period amounting to $1,471 by 38.8, which would result in an average weekly wage of $37.91.

The statute involved is Section 10 of the Workmen's Compensation Act (Section 6998-16, Mississippi Code of 1942), as follows:

'Except as otherwise specifically provided, the basis for compensation under this act shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than 52 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, however, that results just and fair to both parties will thereby be obtained. Where by reason of the shortness of time during which the employee has been in the employment of his employer it is impracticable to compute the average weekly wages by the above method of computation, regard shall be had to the average weekly amount which, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. Wherever allowances of any character are made to an employee in lieu of wages or specified as part of the wage contract, they shall be deemed a part of his earnings.'

The first clause of the statute provides that such wages shall be determined from the earnings of the employee during the preceding 52 weeks, divided by 52.

The second clause of the first sentence deals with a situation where the injured employee has been working for the employer 52 or more weeks, but has lost time during that period. If he lost more than seven days 'although not in the same week' the earnings for the remainder of the 52 weeks shall be divided 'by the number of weeks remaining after the time so lost has been deducted.' The question is what is meant by the 'time so lost'. The statute refers to the employee losing more than seven days. It does not have to be in the same week. After that occurs, the earnings for the remainder of the 52 weeks are divided by the number of weeks remaining after deducting the time lost. The statute does not say that the time lost must be 'consecutive', as do some other sta...