McCummings v. ANDERSON THEATRE CO. , 225 S.C. 187 ( 1954 )

225 S.C. 187 (1954) 81 S.E.2d 348

McCUMMINGS
v.
ANDERSON THEATRE CO. ET AL.

16851

Supreme Court of South Carolina.

March 29, 1954.

Messrs. Whaley & McCutchen, of Columbia, for appellants.

Messrs. McEachin, Townsend & Zeigler, of Florence, for Respondent.

The order of Judge Baker follows:

The employer and insurance carrier have appealed from an award of the Industrial Commission granting the employee compensation for temporary total disability at the rate of $25.00 per week for injuries sustained by the employee, or respondent, while working for the employer on or about March 5, 1952. The only question on appeal is, what is the correct average weekly wage of the respondent for purposes of the Workmen's Compensation Act in ascertaining the compensable weekly rate.

The facts are brief and not in dispute. For approximately three years preceding his injury, the respondent worked at least one day per week for the Anderson Theatre Company as a relief projectionist and carpenter, and for such period of employment he averaged $6.00 per week. By trade respondent is a bricklayer, and started work at the Theatre in order to have some work to do to supplement his income when the weather would not permit bricklaying, and also to enable himself to become a moving picture machine operator. When not working with the Theatre he followed his usual trade as a bricklayer, from which work he averaged $55.00 to $60.00 per week. On March 5, 1952, he was injured when a rug on the steps in the Theatre became loose, causing him to fall down the stairs. The bricklaying trade was not in any manner connected with respondent's employment with the Anderson Theatre Company, and such work was carried along with different independent employers.

The respondent contended to the Industrial Commission his average weekly wages for benefits should be calculated on the basis of his earnings with the Theatre and the earnings which he received from his regular trade as a bricklayer, so that the maximum weekly benefits provided by the Compensation Act, to wit, $25.00 per week, should apply. The defendants' position before the Commission is that the average weekly wage should be based solely upon the $6.00 per week received in the employment in which respondent was injured, so that the minimum benefits provided by the Compensation Act, to wit, $5.00 per week, should apply on the basis of the average weekly earnings of $6.00 per week. The Hearing Commissioner, affirmed by the Full Commission, held the compensation rate is to be based upon the total earnings of the respondent and consequently issued its award for $25.00 per week temporary total disability compensation benefits. The employer and insurance carrier have appealed to this Court.

Section 72-4 of the Code of Laws of 1952 provides the methods for ascertaining average weekly wages. It is contained therein, (1) average weekly wages shall mean the earnings of the employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of injury, divided by fifty-two; (2) but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted; (3) when 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 the wages shall be followed, provided results fair and just to both parties will be obtained; (4) where by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impracticable to compute the average weekly wages as defined, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community; and (5) "But when 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."

In at least two instances the General Assembly has recognized that there would be exceptional cases in which methods one through four would be unfair, that being the average weekly wage for the South Carolina State Guard and the voluntary firemen, and the General Assembly in Section 72-4 says the average weekly wage shall be deemed to be $40.00 per week for these classifications.

The Full Commission has calculated the average weekly wage on method number five, that is, combining the average earnings from the bricklaying trade with the $6.00 per week received from the Theatre. It is the position of appellants that it is the intent of the Workmen's Compensation Act to limit the provisions thereof to employers and employees engaged in employment "in the same business" so that the Act has no reference to the earnings or employment of the employee other than in the same business. They then argued that the earnings of the respondent as a bricklayer were not earned in the same business in which he was injured, so that such earnings in his bricklaying trade should not be considered.

I am in accord with the decision of the Full Commission, and do not believe the Act, or the section of the Act under consideration, should receive the narrow interpretation as contended by appellants. Section 72-4, supra, refers in the beginning to "the employment in which he was working at the time of the injury" and next, to the wages received by another person "employed in the same class of employment in the same locality or community."

It is apparent that methods one, two and three are confined to the same employment, but the field is extended in classification number four. Further extension is granted in number five, when for exceptional reasons it would be unfair to compute the wage received in the same employment or same class of employment. The paragraph says "such other method" may be resorted to "as will most nearly approximate the amount which the injured employee would be earning were it not for the injury." There are only two ways to do this, first, by an arbitrary increase of the wage, and second, by combination of the average wage received in the employment in which the employee received his injury with average wage received from other regular employment. The General Assembly did not intend the first "such other method," and it logically follows that the second is to be the rule.

There appears exceptional reasons why the respondent should not be confined to the wages received in the employment at the time in which he was injured. Method number four cannot be followed since there is nothing in the terms of his employment as makes it impractical to compute the weekly wage. Such method is to be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, and when there appears to be exceptional reasons as are present herein, such other method as not enumerated in the Section should be followed. He has suffered a disability within the meaning of that term as defined in the Act, to wit, Section 72-10 of the 1952 Code, that is, "incapacity because of injury * * * in the same or any other employment." (Italics mine.)

The appellant carrier specifically urges the point that premiums paid by an employer are based upon its payroll, and a result as reached herein would make it practically impossible to arrive at a rate. The premium is calculated from information furnished by the employer, and the employer in this instance knew respondent only devoted one day per week to its business and had other means or trade for the purpose of providing a living for himself and family.

The opinion and award of the Full Commission is hereby affirmed and exceptions thereto dismissed.

March 29, 1954.

TAYLOR, Justice.

The Circuit Judge affirmed in toto the findings of the Commission to the effect that claimant's compensation rate is to be based upon his total earnings and the employer and its carrier appeal to this Court contending that there was error in the following particulars:

1. In affirming the award of the Industrial Commission to respondent, the error being that the uncontradicted evidence establishes that the average weekly wage of respondent, for the purposes of a workmen's compensation claim against the employer, was $6.00 per week, so that the minimum allowance of $5.00 per week compensation benefits was applicable instead of the maximum benefits of $25.00 per week based upon average weekly wages of $61.00 per week.

2. In affirming the award of the Industrial Commission to respondent, the error being that the Workmen's Compensation Law provides that the "average weekly wage," as a basis for computing benefits under that law, is the wage earned by the employee in the employment in which injury occurs, and not the combination of the wages earned in that and other unconnected employment.

We are of the opinion that both of these questions must be resolved against contentions of appellants as we find no error in the order of the Circuit Court when considered in the light of the questions raised but such is not to be considered as a precedent for the purpose of computing an employee's average weekly wages within the contemplation of the Workmen's Compensation Act.

Inasmuch as the question of how a claimant's weekly wage should be computed is a most important one and no other method other than those above referred to was raised or discussed either in the briefs or in oral argument, we prefer not to pass upon any other method of doing so until properly before this Court and fully argued.

BAKER, C.J., STUKES, J., and BRUCE LITTLEJOHN, Acting Associate Justice, concur.

OXNER, J., concurs in result.

OXNER, Justice (concurring in result).

Respondent contends, and the Court below held, that his average weekly wages should be calculated on the basis of his combined earnings as bricklayer and theater worker, while appellants contend that he should be limited to the $6.00 per week received from the theater.

Where an employee sustains an accidental injury while concurrently engaged in similar employment for two or more employers, there is a diversity of opinion as to whether his average weekly wages should be computed on the basis of the total compensation from all employments, or solely on the basis of the compensation received from the employer for whom he was working when injured. An excellent review of the authorities will be found in the recent case of St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697, 77 S.E. (2d) 327, 330, which was affirmed by the Supreme Court of Georgia in 210 Ga. 256, 78 S.E. (2d) 799. The better view, I think, is to allow compensation on the basis of total earnings in all employments. This was the view adopted in the foregoing decision. But the Georgia Court restricted its application to concurrent work "similar in character to the work in the course of which the accident was sustained." In the instant case the two employments were wholly dissimilar. Under these circumstances, I think the correct method of determining respondent's weekly wages is to ascertain the amount which he would have received had he been regularly employed by the theater in the type of work in which he was engaged when injured. Where the employments are unrelated. I would apply the following rule laid down by the Supreme Court of Arizona in Wells v. Industrial Commission, 63 Ariz. 264, 161 P. (2d) 113, 116:

"Where * * * an employee is injured who is working in several employments and the burden of compensation is imposed upon one employer, the basic wage upon which benefits are computed should be limited to the total amount that the employee would have received from such employer if he were employed continuously at the usual and regular rates for the particular services he was performing at the time of the accident. It is our view that the statute does not contemplate that any employer for whom an employee is working on a part-time basis should be compelled to assume a burden of compensation greater than the amount chargeable if the employee were working for him on a full-time basis."

The record does not disclose sufficient information for the calculation of respondent's wages according to the foregoing formula. In fact, this theory seems not to have been advanced by either party in the Court below and is not raised on this appeal. Doubtless the failure of appellants to do so was because they would have gained little, if anything, in result. But the principle is important.

The sole question raised by the exceptions is that the Court erred in not restricting respondent's weekly wages to the sum of $6.00, the amount he received from the theater. I agree that this method of computation is unsound. Under these circumstances, I concur in the result of the majority opinion.