St. Paul-Mercury Indem. Co. v. Idov

• Citation: 88 Ga.App. 697,77 S.E.2d 327
• Decision Date: 14 July 1953
• Docket Number: No. 2,No. 34732,PAUL-MERCURY,34732,2
• Parties: ST.INDEMNITY CO. et al. v. IDOV
• Court: United States Court of Appeals (Georgia)

Page 327

77 S.E.2d 327

88 Ga.App. 697

ST. PAUL-MERCURY INDEMNITY CO. et al. v. IDOV.

No. 34732.

Court of Appeals of Georgia, Division No. 2.

July 14, 1953.

Rehearing Denied July 30, 1953.

Syllabus by the Court.

Where, as here, an employee is engaged as retail salesman for three different employers at salaries totaling $100 per week, and is accidentaly killed in the course of his employment for one of such employers who is subject to the Workmen's Compensation Law, the doctrine of concurrent similar employment applies. The average weekly wages of such employee are determined under Code Ann.Supp. § 114-402, subsection 1, provided that such employee has, as here, worked in such employment--that is, the three similar jobs--during substantially the whole of 13 weeks immediately preceding the accident. Such average weekly wages are one-thirteenth of the total wages from the three jobs.

The husband of the claimant in this Workmen's Compensation case, Alex Idov, was killed by robbers while in the course of his employment as a salesman for the employer, Whitehouse Liquor Store. He worked for this employer 10 1/2 hours per week for a salary of $15 per week. He worked for another employer in the same capacity as a retail liquor salesman 21 hours per week at a weekly salary of $25. He also worked for a third employer as a retail clothing salesman 48 hours per week at a weekly wage of $60. His gross salary from the three employers consisted of $100 per week. Counsel for the claimant contended before the single director that the average weekly wages of the deceased should be computed as based on the $100 per week three-salary income, but he also offered evidence of the income of another full-time employee of this employer so as to bring the deceased employee under that provision of the Workmen's Compensation Act if the claimant was not entitled to have the compensation fixed in accordance with her first contention.

The single director entered an award in favor of the claimant based on the income as shown by the other full time employee of this employer, which was $40 per week, 85% of one-half of which, or $17 per week for 300 weeks, having been thus awarded. Both sides appealed to the full board from this award, which board subsequently entered an award based on the same evidence and stipulations in favor of the claimant for the maximum recovery under the Workmen's Compensation Law, which was based on the income of the deceased employee from the three employers. The employer appealed to the superior court from this award and to this court from the judgment of the superior court affirming it.

A. Ed Lane, Jr., Hugh E. Wright, Moise, Post & Gardner, Atlanta, for plaintiffs in error.

White, Douglas & Arnold, W. Frank Lawson, Atlanta, for defendant in error.

TOWNSEND, Judge.

The sole issue in this case is the proper computation of the average weekly wages of the deceased employee. The method of computing compensation under Code Ann.Supp. § 114-402 is to determine the average weekly wage as follows: '(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks. (2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph.' Since the deceased employee had worked for more than 13 weeks in each of the jobs he held at the time he was killed, and since the second provision of Code, § 114-402 may be used only if the first is inapplicable, the average weekly wages must be determined under the first subsection thereof. It then remains to be determined (1) whether the employee was concurrently engaged in similar employment in each position; and (2), if so, whether the 'concurrent similar employment' doctrine should be applied under the terms of the Georgia Workmen's Compensation Act. The employee was engaged in each occupation as a retail sales clerk. His duties were the same--to sell items at retail to customers. In two jobs he sold liquor; in the third he sold clothing. There is nothing connected with a clothing store which would make it a more hazardous occupation than that of selling liquor, so far as appears from the record. The employee may therefore be said to have been steadily and concurrently engaged in three jobs, the total of which represented one employment, that of retail salesman, and the sum of his salaries in these three positions constituted his average weekly wages and established his total earning capacity at that time. The mere fact that the total hours worked per week--double the time of the average worker--represent an incredibly long working day would have no significance, for a...