Jay Livestock Market v. Hill

• Decision Date: 14 April 1971
• Docket Number: No. 39965,39965
• Citation: 247 So.2d 291
• Court: Florida Supreme Court
• Parties: JAY LIVESTOCK MARKET and Travelers Insurance Company, a corporation, Petitioners, v. Ellis HILL and the Department of Commerce, Respondents.

Page 291

247 So.2d 291

JAY LIVESTOCK MARKET and Travelers Insurance Company, a corporation, Petitioners, v. Ellis HILL and the Department of Commerce, Respondents.

No. 39965.

Supreme Court of Florida.

April 14, 1971.

Roger M. Sherman and Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for petitioners.

Allen W. Lindsay of Lindsay & Lindsay, Milton, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission to review the Order entered July 1, 1970. The question presented by this petition is whether wages earned by a claimant in an employment which is excluded from coverage under the Workmen's Compensation Act are properly included for the purpose of determining the employee's average weekly wage.

Claimant was primarily employed as a farm laborer for a bona fide farmer. He worked a forty-hour week as a farm laborer receiving wages of approximately $35 per week. Claimant also worked approximately a day and a half as a general laborer each week at the Jay Livestock Market, receiving $15 per week. On October 18, 1967, claimant sustained an injury by accident arising out of and in the course of his employment with the Jay Livestock Market.

The Judge of Industrial Claims, in his Order dated August 11, 1969, found that the work performed by the employee as a farm laborer and the work he performed at the Jay Livestock Market were similar and that, therefore, his average weekly wages were to be computed by combining the wages received from both employments for a total of $50 per week, making his rate of compensation $30 per week.

On application for review, the Full Commission affirmed the Order of the Judge of Industrial Claims without discussion of the computation of the average weekly wage.

The employer-carrier has petitioned this Court for writ of certiorari contending that the wages earned by an employee in a concurrent employment which is excluded from the provisions of the Workmen's Compensation law, are not properly included with the wages he was earning in the employment during the course of which he was injured for the purpose of determining his average weekly wages. In support of this contention the employer-carrier cites the opinion of this Court in Jaquette Motor Co. v. Talley, ¹ wherein this Court held that in computing the average weekly wage, the employee's earnings from his concurrent employment as a railway bridge tender (exempted from the operation of the compensation act) could not be included. Claimant distinguishes the Jaquette Motor Company case on the grounds that the concurrent employments in that case were wholly dissimilar in nature--railway bridge tender and automobile salesman.

In the Jaquette Motor Company case, supra, this Court held: ²

'It is clear that wages from an employment specifically excluded from the operation of the act may not be used as a part of the claimant's wage base.'

To like effect is the case of Wilson v. City of Haines City, ³ wherein it was held that the annual earnings of an independent contractor could not be combined with his earnings as a part-time city volunteer fireman for the purpose of determining the compensation rate for injuries sustained in the employment as a volunteer firemen.

The rule of the Wilson and Jaquette Motor cases, supra, is limited to preventing the inclusion of wages from employment or occupations not covered by the Florida Workmen's Compensation Act. Those cases and the instant case do not involve the question of whether the earnings of an employee engaged in separate covered employments may be combined to compute his average weekly wage.

The Legislature has seen fit to exclude farm workers from the benefits of workmen's compensation. It may well be that the time has come, or will come in the near future, for the Legislature to reconsider this exclusion in the light of modern changes in agriculture. If the law is to be modified, however, it must be by legislative enactment and not by this Court. Sympathetic compassion for injured persons does not constitute a legal basis for allowing increased compensation not properly supported by the law.

Accordingly, certiorari is granted and the cause is remanded to the Industrial Relations Commission with directions to remand to the Judge of Industrial Claims for the entry of an appropriate order in accordance herewith.

It is so ordered.

CARLTON, ADKINS, and McCAIN, JJ., concur.

ROBERTS, C.J., dissents.

DEKLE, J., dissents with opinion.

ERVIN, J., dissents and concurs with DEKLE, J.

DEKLE, Justice (dissenting).

Total disability terminates a laborer's total livelihood, just as effectively for a 'full-time' job as laborer pitching hay for livestock in his regular employment on the farm, as for pitching it at the livestock market in his part-time work. This is what has occurred here. The workman's capacity to earn is ended in both jobs. The grocer and landlord make no distinction as to his source of income when it is insufficient to pay for his food and rent. Is he to be denied consideration being given to his total income which has been lost, because it is derived in two portions? We deal with the 'economic man,' says Alpert in his comprehensive work, 'Florida Workmen's Compensation Law,' § 11:13 (p. 352). The facts before us present a test as to whether the Court is going to give meaning to this fact of life.

Claimant was injured in his supplemental work at the livestock market which is admittedly covered under the Act. His work on the farm (agricultural) is of course not covered. ¹ He asks no 'coverage' for his farm work but only that his earnings on the farm be considered as a part of his loss of earning Capacity for the week and be included for the purpose of arriving at his base for compensation, his 'average weekly wage,' for the injury sustained in the pursuit which is covered. And so it is that this is not a matter of 'modifying the law,' which I agree is the province of the Legislature for statutory changes; this is a matter of Applying the law within the Act under this Court's prior decisions on this precise point which are hereinafter set forth.

The same employer (under separate 'sole proprietorships') employs claimant both as laborer on his farm in Milton, Florida, and two days a week at his leased livestock outlet in nearby Jay, Florida, on Tuesdays and Wednesdays 'and occasionally on Mondays.' The following facts were stipulated:

'The employer, Horace McCurdy, operates two independent businesses. Primarily he is a farmer in the Milton, Florida, area. His operations involve raising livestock and growing truck. After the establishment of his farming operations some years ago, Horace McCurdy became the lessee of the Jay Livestock Market premises in 1964. These premises were leased to him by the State of Florida for operation as a livestock auctioning place and are located approximately 4 miles from the locus of his farming operations. Horace McCurdy's farming operations and his operation of the Jay Livestock Market are both 'sole proprietorships.' In his capacity as the operator of a farm, McCurdy sold livestock through the Jay Livestock Market.

'Ellis Hill became associated with Horace McCurdy in March, 1966. For some time, Ellis Hill worked exclusively as one of Horace McCurdy's farm employees. He was paid $25.00 per week and was given the use of a house and access to a 1/2 acre garden. The rental value of the house was $40.00 per month and the reasonable value of garden use was $20.00 per month. Ellis Hill worked approximately 40 hours per week on the farm.

'Subsequently, Hill was employed by Horace McCurdy to work at the Jay Livestock Market as a 'yard man.' He worked approximately 1 1/2 days per week (Tuesday and Wednesday), and occasionally on Monday while livestock was moved from the farm to the market for sale on the following Tuesday. Hill would have worked additional hours at the livestock market had this work been available to him. Hill was frequently engaged in the feeding of livestock on the farm, some of said livestock being held for subsequent sale in the livestock market. Hill was paid $10.00 for his work on Tuesdays and $5.00 for his 1/2-days' work on Wednesdays.'

Claimant, along with other employees of this same employer under his 'other hat' as a 'farmer,' go down to the market on 'sale days.' Claimant got up 'at dawn' and 'generally got through at noon' and was paid at the tate of $10.00 per day and $5.00 for 'one-half days.' Even if compensation is based on the full $50.00 per week for All work for this employer at both locations, it is still only $30.00 per week as total partial disability. This is what the Judge found and what the Commission affirmed. Is this so 'unfair'? The impact of disregarding related wages as a compensation base is mainly upon the laborer and low income groups who were most intended to be helped by the Act.

Consideration is certainly to be accorded the employer and carrier as to...