Early v. W. H. Basnight & Co. Inc

• Decision Date: 21 September 1938
• Docket Number: No. 97.,97.
• Court: North Carolina Supreme Court
• Parties: EARLY. v. W. H. BASNIGHT & CO., Inc.,et al.

198 S.E. 577

214 N.C. 103

EARLY.

v.W. H. BASNIGHT & CO., Inc., et al.

No. 97.

Supreme Court of North Carolina.

Sept. 21, 1938.

Appeal from Superior Court, Edgecombe County; Luther Hamilton, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Freeman Edward Early, widow of Freeman Edward Early, claimant, opposed by the W. H. Basnight & Co., Inc., employer, and the Great American Indemnity Company, carrier. From a judgment of the Superior Court affirming the findings of fact and the award of the Industrial Commission, defendants appeal.

Affirmed.

Proceeding under North Carolina Workmen's Compensation Act, Code 1935, § 8081(h) et seq., to determine liability of defendants to dependents of Freeman Edward Early, deceased.

The only controversy in this case revolves around the amount of "average weekly wages" on which to base the award of benefits to dependents.

The testimony of W. I. Johnston, manager of W. H. Basnight & Company, is the only evidence offered. He testified substantially as follows: The Company is engaged in the business of wholesale distributor of general merchandise. Freeman Edward Early was employed by the Company seven or eight years prior to his death. He entered the employment as a truck driver, and then for three or four years he worked as a stock clerk in the warehouse, at a salary of $20 per week for the last two years of that time. Six months prior to his death he was employed as a traveling salesman with about 350 miles of territory per week. At first he was paid a salary of $20 per week, but in January, 1937, his salary was increased to $100 per month, with traveling expense allowance of $21 per week. He was out in the territory five days per week, but spent only one night there. There was likelihood of Early receiving consideration of further increase in wages. He was put in as salesman as an experimental proposition at first, in new territory, at his old salary. At time of his death, he had had one raise in salary, and the witness said: "With the business he was getting, he would have had furtheradvances in line with other salesmen * * The next lowest salesman we had at that time was drawing $125, and Mr. Early would probably have gone to $125 in a short time." The salaries of the six salesmen employed by the Company range from $100 to $150 per month.

The North Carolina Industrial Commission, on appeal from the findings of fact, conclusions of law and award of the hearing Commissioner, made these findings of fact:

"(1) That the plaintiff's deceased had been regularly employed in one capacity or another by W. H. Basnight & Company for three or four years, and that all except the last six months of said employment has been in the warehouse.

"(2) That approximately six months prior to the injury by accident to the plaintiff's deceased and his death March 16, 1937, said deceased had been promoted to the position of salesman.

"(3) That as a warehouse clerk he had received an average weekly wage of $20 and continued to receive said wage for three months following his promotion to the position of salesman, and that on January 1, 1937, his salary was increased to $100 per month, or $23.07 per week.

"(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."

Thereupon the Industrial Commission awarded compensation on the basis of the increased weekly wages received by the deceased after January 1, 1937. In the opinion of the Commission it is stated: "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".

From judgment of the Superior Court, on defendant's appeal, affirming the findings of fact and the award of the North Carolina Industrial Commission, defendants appealed to the Supreme Court and assign error.

H. S. Merrell and Battle & Winslow, all of Rocky Mount, for appellants.

No counsel for appellee.

WINBORNE, Justice.

These four questions are presented on this appeal:

1. Where an employee has been employed for the fifty two weeks prior to the time of the injury which results in death, at wages the weekly average of which is definitely ascertainable by dividing the total by fifty two, does the North Carolina Workmen's Compensation Act require that method of computing the average weekly wages of such employee to be followed?

2. Or, upon finding that for exceptional reasons that that method would be unfair to employee, may the North Carolina Industrial Commission resort to such other method as would most nearly approximate the amount which the injured employee would be earning were it not for the injury?

3. Is there sufficient competent evidence in the record on this appeal to support the fourth finding of fact as to "exceptional reasons"?

4. If so, as a matter of law, do the facts found constitute such "exceptional...