Joyner v. AJ CAREY OIL COMPANY ( 1966 )

146 S.E.2d 447 (1966) 266 N.C. 519

Donald D. JOYNER, Employee,
v.
A. J. CAREY OIL COMPANY, Inc., Employer, Employers Mutual Casualty Company, Carrier.

No. 367.

Supreme Court of North Carolina.

February 4, 1966.

LaRoque, Allen & Cheek by G. Paul LaRoque, Kinston, for plaintiff appellee.

Wallace & Langley by P. C. Barwick, Jr., Kinston, for defendant appellants.

SHARP, Justice.

The first question presented by this appeal is decisively answered by the opinion in Barnhardt v. Yellow Cab Co., N.C., 146 S.E.2d 479. When an employee who holds two separate jobs is injured in one of them, his compensation is based only upon his average weekly wages earned in the employment producing the injury. This case and Barnhardt point out a hiatus in our Workmen's Compensation Act which the Legislature may wish to bridge to prevent future duplication of these unhappy results.

The second question posed is whether the Commission used the correct method to ascertain plaintiff's average weekly wages from Oil Company. In determining them to have been $23.40, the Commission used the second method contained in G.S. § 97-2(5). This method provides:

"Where the employment prior to the injury extended over a period of less than fifty-two 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, results fair and just to both parties will be thereby obtained."

Defendants contend that, since the oil business is seasonal, it is unfair to defendant employer to use this method because it gives plaintiff the advantage of wages earned in the "peak" tobacco-curing season without taking into account the slack periods in which the Oil Company employs no relief driver. Defendants contend that the Commission should have employed the fourth method in G.S. § 97-2(5) which provides:

"But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury."

Had plaintiff been the only relief driver employed by Oil Company for the twelve months preceding his injury, he would not have worked every week. The compensation which he collects, however,— whatever the amount—will be paid every week. The dominant intent of G.S. § 97-2(5) is that results fair and just to both employer and employee be obtained. Results fair and just, within the meaning of the statute "consist of such `average weekly wages' as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury." Liles v. Faulkner Neon & Electric Co., 244 N.C. 653, 660, 94 S.E.2d 790, 796.

Whitehurst's employment began September 1, 1962, and plaintiff's ended on August 31, 1963. Whether Whitehurst's employment ended on March 6th or June 6th, the evidence is that between the time it ended and plaintiff's began, Oil Company had no need for a part-time or relief driver and employed none. Plaintiff and Whitehurst did the same work for the same employer and were paid the same wages. Theirs was, in effect, one continuous employment for which we have a complete record during the 52 weeks preceding plaintiff's injury. This employment is inherently part-time and intermittent. It does not provide work in each of the 52 weeks of the year; some weeks the job is nonexistent. It cannot, therefore, be treated as if it were a continuous one with regular wages. Fairness to the employer requires that we take into consideration both peak and slack periods.

There is nothing in the evidence to indicate that the period from September 1, 1962 through August 31, 1963 was not a typical year. The total of Whitehurst's and plaintiff's wages during this 12-month period was $1,044.00. "Were it not for the injury," plaintiff himself would not be earning more than this sum in a normal year. Dividing this figure by 52 gives an average weekly wage of $20.08, which takes into account all the trips for which a relief driver was typically required. This is the result which defendants contend the Commission should have reached under the "exceptional reasons" method, and we are constrained to agree that it is the proper one.

Plaintiff relies upon Liles v. Faulkner Neon & Electric Co., supra, wherein this Court held that "upon this record, the `average weekly wages' of decedent are to be computed in accordance with the said second method prescribed by G.S. 97-2(e) (now G.S. § 97-2(5))." In Liles, however, continuous, part-time employment was available. There, it was the employee who was not available for full-time employment. This case presents the converse of that situation, for here the employee was continuously available and the job was not. In Liles, the Court held that a part-time job could not be converted into a full-time job for the purpose of compensation. By the same token, an intermittent part-time job cannot here be treated as a continuous one. From the statement of facts in Liles, it appears that the period of the deceased worker's employment had been the "peak season." But, as the opinion points out, the record contained no evidence as to the amount which a part-time worker, such as decedent, had earned in the same or similar employment in the locality during the 52 weeks next preceding the injury. The record in this case does contain such evidence.

The judgment of the Superior Court overruling defendant's exceptions to the award of the Commission is vacated, and this cause is remanded to the Superior Court to the end that it enter a judgment returning the case to the Industrial Commission for the entry of an award in accordance with this opinion.

Error and remanded.