Wilson v. City of Haines City, 28

• Decision Date: 18 September 1957
• Docket Number: No. 28,28
• Citation: 97 So.2d 208
• Parties: Elmer Everette WILSON, Petitioner, v. CITY OF HAINES CITY, Florida, Florida Industrial Commission and Indemnity Insurance Company of North America, Respondents.
• Court: Florida District Court of Appeals

Page 208

97 So.2d 208

Elmer Everette WILSON, Petitioner, v. CITY OF HAINES CITY, Florida, Florida Industrial Commission and Indemnity Insurance Company of North America, Respondents.

No. 28.

District Court of Appeal of Florida, Second District.

Sept. 18, 1957.

Dewell & Dewell, Haines City, Marvin B. Woods, Lakland, for petitioner.

D. A. Arduengo of Macfarlane, Ferguson, Allison & Kelly, Tampa, for City of Haines City Florida and Indemnity Ins. Co. of North America.

Burnis T. Coleman and Rodney Durrance, Tallahassee, for Florida Industrial Comm.

ALLEN, Judge.

Elmer Everette Wilson, the Petitioner, was a member of the volunteer fire department of the City of Haines City, and on November 26, 1954 sustained an injury in the course of his employment. The volunteer fire department operated the fire department for the City, there being a large number of volunteer firemen and four permanent firemen. The permanent firemen were employed by the City and paid for full-time work at a base salary of $210 per month. The volunteer firemen were paid on a basis of $1 for each fire attended and $1 for each practice drill.

The petitioner had been employed as a volunteer fireman, on a part-time basis, in excess of 13 weeks prior to his accident. His average earnings per week from such part-time basis was $1.38. His regular employment was as an electrical contractor and operator of appliance and hardware stores. His net income for the year of his injury exceeded $12,000.

The Deputy Commissioner determined that the petitioner suffered a temporary total disability and was entitled to compensation at the rate of $1.38 per week in addition to other allowances.

The Deputy Commissioner in his Order stated:

'Under Section 440.14(5) the claimant was a part-time worker at the time of his injury. He had adopted the part-time employment as his customary practice and he would have remained a part-time worker indefinitely, as there had been openings during the time he was a part-time employee with the City, vacancies for full-time Fireman, which he was not interested in. In view of his self-employment, he would not have considered working for the employer on any basis other than part-time, and his salary would have to be determined by the average wage that he received for the part-time employment. The wage statement filed in evidence by the employer shows that for the 13 weeks period prior to the date of the accident, the claimant was actually paid by the employer a total amount of $18, or an average weekly wage of $1.38.'

The Order of the Deputy Commissioner, which was reviewed by the full Commission, was affirmed.

The petitioner contends that the Deputy Commissioner and the full Commission applied the wrong rule and statutory law in determining the petitioner's average weekly wage. It is the contention of the petitioner that the Deputy Commissioner should have considered the earnings of the petitioner in his regular employment, that of an independent contractor and businessman. This question is apparently one of first impression in Florida.

The petitioner in his Brief quotes from several cases from other jurisdictions in which it was held that where the injured party worked on two jobs for different employers and was injured, his compensation should be based on his combined average weekly wage. See De Asis v. Fram Corporation, 78 R.I. 249, 81 A.2D 280; McCummings v. Anderson Theatre Co., 225 S.C. 187, 81 S.E.2d 348; County of Monterey v. Rader, 199 Cal. 221, 248 P. 912, 47 A.L.R. 359.

Florida Statutes, Section 440.14(5), F.S.A. provides:

'If it be established that the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that...