Black v. American & Foreign Insurance

merit. this court are without opinion of J., Whitman, J., Jordan, P. concur. Judgment affirmed. Decided November Cert,

Rehearing December 1970 — for. denied Jr., Aiken, appellant. Respess, John L. for Seals G. DeRieux,

Greene, Jones, Burt A. Ei- Buckley, DeRieux & James chelberger, appellees. &

45429. BLACK v. AMERICAN FOREIGN COMPANY et al. INSURANCE Press, Judge. employed by Advocate Claimant was Eberhardt, weekly printing Springs, firm at Franklin on a full-time basis Monday through Friday wage per from at a of week as $100 finishing department, supervised where he supervisor of its regular part-time help. supervised three workers and other He stitcher, cutter, operation packaging folder and out, sending of finished materials and them and did some packaged of the work himself. The were carried materials just the Post Office each afternoon before five o’clock. Occasion- ally packages were delivered claimant to the customer company automobile. regularly days part-time, portion

He also worked but of two each week, Atlanta, Corporation earning for American Courier an $32.70, weekly average wage driving where his duties were the regular vicinity of an automobile on a route in pick Athens up company’s business records and take them in to the Atlanta records, packages usually office. were sealed These checks envelopes larger packages. but sometimes 16, 1968, While on the route for American Courier November he driving dozed at the wheel and the he went car into the embankment, against ditch and he asserts that his back and injured. arms were injuries job

Because of his he was to work either unable on 16, 1968, 2, 1969, January until November when he returned to at an Press full-time and increase 3, 1969, January pay per to work week. He returned $10 Courier, working more time than he American the route devoting prior injury, to that to his but after some had been physician gave four and on the advice of three or weeks injuries driving his the up Courier made the because lifting packages required car and the of on the route too much for him. back, long history for

He has a of arthritic trouble with his which chiropractic he has had medical and treatments. hearing of against

On a his claim American Courier to determine compensable the matters of whether the had suffered thereof, sought injuries the and extent claimant to have the employment similar in "concurrent doctrine” determin- ing compensation, of the amount his entitlement as but the hearing similarity types the director found that in the of work employers ap- done for the two was not to sufficient authorize plication Compensation partial it. of of loss use of his arms upon was awarded based his American Courier 16, 1968, upon disability and total January November to 2, 1969, work, he to upon when returned and thereafter the percent percent of a 25 use in basis loss of his left arm and 35 in right Upon appeal of the loss use arm. the full board findings hearing fact of and the award of the director were adopted, appeal superior and to the court award was affirmed. finding similarity

1. The of duties claimant’s with the employers application two was insufficient to authorize of (see employment the "concurrent similar doctrine” St. Paul- Idov, (77 Mercury App. 327), Indem. Co. v. Ga. SE2d opinion dismissing see certiorari in 210 Ga. 256 799)) was authorized evidence. is no There claim here Press, against if there evidence de finding injuries manded a that claimant’s did not arise out of employment or in the course of Accordingly, with it. properly wages award was made basis of earned as an employee of American Courier. Code Ann. 114-402. § (1) "Employment” 2. in Code used Ann. 114-402 means the baker, janitor, employment, such as that type or kind of calling kind of driver, particular It to the etc. refers truck of his engaged at the time claimant was employment which 215); Ander- Howard, App. NE In 71 Ind. injury. Re 265), Roberts-Karp 171 Minn. 402 NW Hotel son v. Paul-Mercury Co. approval Indem. St. each cited with working had been supra. Here claimant pick-up man for American Courier regularly as a route or injury, doing work. That year prior the same about a to his engaged "at the time "employment” which he was was the Press injury.” A with the Advocate different time, he but in which was engaged not so at the which ap- times, statutory not standard to be engaged other at may that are not plied, which he have earned determining the amount the award. be considered categories of em four It American Courier had category of a ployees first was that who worked the routes. The supervision supervisor and direction whose duties included the courier route men. The was that of full-time second required or hours of work each regularly duties 32 more whos part-time duties The third of a courier whose week. was that week, regularly required 32 of work each less than hours courier whose work category the fourth was that a substitute consisting substituting on irregular, and hours reasons, who, employees ill routes for who became might pay scale different each be off from work. The was being hourly Mr. a category, paid on an basis. Black was all testimony of his his as well as that part-time courier making pick-ups employer regularly his week consisted of work week, required average of on route each and this twice per stipulated opening of 16Vzhours week. Counsel at the about weekly wage hearing average his with American Cour parties, stipulation binding upon the ier This was $32.701 Mc award thereon. board was authorized to base its (99 Liability Corp., App. 96 Employers v. Ga. 35 Cord Assur. concerning earnings job on the with Amer 1Evidence claimant’s entirely stipulation. consistent with the ican Courier was 136 327); Co., Tigue App. v.

SE2d American Mut. Liab. Ins. 108 Ga. (134 525); App. 723 SE2d Lavender v. Zurich Ins. 110 Ga. 118). (138 SE2d Since the evidence was consistent with the stipulation as to from claimant’s with Amer- is finding grounded ican Courier it immaterial whether the upon stipulation or the evidence.

Furthermore, employer’s manager both claimant and the testified part-time employee.

that he was a For about three weeks after January he returned to work claimant devoted than better per job, 40 hours week to the but both claimant and em- ployer explained that voluntary taking this resulted temporary a the additional work as substitute for a courier hospital. paid who was then confined to "Where are hourly basis, weekly on an wage wage per the full-time is the multiplied by hour the number of hours shown the evidence to constitute a full-time employee work week such under employment.” his contract of New Amsterdam Cas. Co. v. Brown, (2b) 245). App. SE2d had Since Black a regular work hours, week with American Courier of 16Vzto 17 consideration of evidence an employee as what of. that com- pany in category another made each week would have been improper. Carter v. Corp., Ocean Accident &c. 190 Ga. 857 16), SE2d not require does a different result. See Federated Elliott, Mut. &c. Ins. 568), Co. Ga. cert, den., in which New Amsterdam was followed. It to be Supreme noted that p. Carter the Court asserted at 858 that regular "If wage has been established and the receiving accident, that, it on the date of then and no oth- er, compensation is the basis on which computed.” must be The board has this followed admonition. compensation The award of based partial permanent

handicap in partial loss use of his arms was made under 114-406, provisions of Code Ann. and this award was au- thorized the evidence. Since an provision award under this compensation the law is "in lieu perma- of all other partial handicap,” nent proper give it no consideration compensation to a claim for on account thereof under 114- §§ (165 Co., 404 or 114-405. Benton S. App. v. U. Cas. 118 Ga. (173 473). Reid, Ins. Co. v. 178 Ga. 399 And see Travelers SE2d Brown, App. 790 376); Co. v. 81 Ga. New Amsterdam Cas. SE Co., (60 245); Acc. Ins. 106 Ga. v. &c. SE2d Surmiak Standard Nelson, 334); Corp. Surety v. App. 479 National SE2d Employers 718); Ins. App. 95 Nation SE2d Ga. Pacific 265). 380, 383 compensa- no in the in which the total find error manner We Appellant separate paid asserts that tion to was calculated. of use of each of should have been made for the loss awards together in lumping than one claimant’s arms rather the two If, as purely matter of arithmetical calculation. sum. It a appellant improvement there is or deterioration suggests, other, improves one arm but not in or if one arm use of falters, change a award while new based difficulty simply apply- condition could be arrived at without ing applicable percentage finding in each instance new total. urges compensation

Claimant the amount of awarded is small, However, provisions of and it it is in accord with the is. only Act. In connection is to be that his eco- this it noted loss is in connection Courier for nomic with American compensation which was awarded. He returned to work for the wage. Press at increased Bell, J., Pannell, J., Hall, Quillian Judgment C. P. affirmed. Whitman, J., Evans, JJ., JJ., Jordan, P. concur. Deen and dis- sent.

Argued July 7, 197 0 Decided November Rehearing Cert, December denied 1970 — for. Carter, appellant. O. William Burch,

Erwin, Chilivis, Epting, appel- & E. Gibson Davison lees. my Presiding Judge, concurring. opinion, In the "concur-

Hall, agree I similar doctrine” should be abolished. rent authority compen- by leading the view on workmen’s stated industry may ultimately be harmed sation that fact that part injury produced by being required bear of the burden of an 138

by another hardly "is so remote and theoretical it seems to very injustice relegating offset the real a disabled man accus- tomed to full to a benefit level below that of destitution because of the happened circumstances that he living to earn his jobs.” two 'dissimilar’ 2 Compensation, Larson Workmen’s 88.210, 60.31.

This raises the issue of whether the court should adhere to its previous opinion Idov, supra, under the doctrine of stare decisis reinterpret Compensation Workmen’s Act and overrule Idov. "It is true that judicial 'stare decisis’ is a policy matter judicial power. rather than regard In this the common law is not immutable, flexible, but principles adapts its own itself varying However, to conditions. regard even those who 'stare de something cisis’ with less than recognize enthusiasm principle greater weight has even precedent where the relates to interpretation of a statute. Once interprets statute, the court interpretation 'the . . . integral has become part of the statute.’ & Moser, Gulf C. S. F. R. 133, Co. v. 49, 275 U. S. 136 SC 72 200); LE York, Winters New 333 U. S. SC 92 840). done, LE having This any been subsequent 'reinterpretation’ would be no judicial different in effect alteration of lan guage Assembly that the placed General itself in the statute. The principle 'particularly is applicable-where an pre amendment is legislature sented to the and .. . the statute is amended in other particulars.’ 319, Statutes, Walker, AmJur Walker v. §326.” 46). 122 Ga. Compensation

While the Workmen’s Act has been amended past years, numerous times interpretation seventeen given by the Act this Court in changed. Idov has never been For reasons, my opinion these proper it is body reinterpret that the Assembly Act the General of Georgia. Presiding Judge, dissenting. very The learned trial Jordan, judge opinion wrote an my this case which states view in this opinion, adopt matter. The which I and use as the basis of this dissent, is as follows:

"This court finds that the doctrine of 'concurrent similar em- (St. ployment’ adopted Georgia Paul-Mercury has been Indem. 256). App. 697; vs. 88 Ga. While this decisis, there rule of stare required follow the court long as employment must be similar why the no valid reason employers know of such all concurrent and employment is such Com- theory Georgia’s Workmen’s employment. The concurrent earning employee based compensate the law is to pensation case, . '. . The cited succinctly the above capacity. so As stated compensa- law is constituting of this the foundation high aim on account proportion to his loss employee, in injured tion for an compen- yardstick by his which injury. . . think the fairest We able is what he was injury can be measured to cover his sation upon came misfortune actually earning when the and was earn death, that, this the time of his . cannot be doubted at him. . It wages from the employee’s earning capacity the total was wage doing . the received jobs he . . rather than three was working for employee . an is sev- part-time employment. . Where injured, may in order that employers and is eral different earning powers, his reasonably compensated of his for the loss Any other construc- wages must be taken into consideration. total injustice and lead to ab- great result tion of the statute would surdities.’ why compelling reason 'concurrent to be another

"There of the requirements employment’ be sufficient to meet should any court, any degree of say uni- It difficult to how Act. just formity, employment is or judicially can determine when employment has 1002. All concurrent some not 'similar.’ 30 ALR and, conversely, char- has some dissimilar characteristics similar courts, early held it Georgia as have that Our acteristics. exclusively for his em- necessary employee work is not that an compensation. Empire qualify for Glass ployer in order to Bussey, attending the 464. The difficulties vs. Decoration Compensation Act are numerous of the construction Workmen’s upon greatly by imposing this enough being increased without employment deciding judicially far one obligation of how court the ejusdem generis employ- may may with another or not be contract Paul-Mercury case, employee supra, In the St. ment contract. jobs, liquor jobs. In two he sold had three concurrent that case clothing job, at Undoubt- in the third he sold retail. at retail and edly, clothing overwhelming majority an retail salesmen would selling clothing

take offense to a bald assertion that at retail was working liquor the same or similar to in a store as a retail sales- liquor jobs clothing man. While the store and the store do similarities, they many Georgia have also have dissimilarities. Annotated, 114-402, provides specifically Code 'If in- that jured employee have shall worked in which he working injury, at the time of the whether the same or employer, during substantially another pre- whole 13 weeks ceding injury, average weekly wage shall be of the 1/13 total amount of employment during earned such the said 13 weeks.’ provides 'Except This code section further as oth- provided Title, average weekly wages erwise this injured employee injury, at time of shall be taken as the compute compensation. basis which to . .’ It does not state 'whether for the employer.’ ap- same another similar It thus pears employment by employee, concurrent with the knowledge and consent employers, of all should be sufficient to justify an disability award to the based on his total wages. Georgia §114-101, Code Annotated in defining the word 'employee,’ 'Employee is as every person follows: shall include service of any the another under contract of . . .’ hire It does not state that the of contract hire has to be similar. It con- is not tended in the case at bar injured, that the was not nor is it contended employment that he was not in the of both concur- employers period rent requisite the required by of time the statute. bar,

"In the case at the claimant’s duties em- concurrent ployment many ways similar; however, 'job if the test of apparently adopted case, classification’ supra, the St. Paul criteria, the then jobs claimant’s concurrent were dissimilar. "This court can see no valid reason for the continuance of a Georgia doctrine in known as employment’ 'concurrent similar under the facts the case at opinion bar. This court of the Georgia doctrine employ- should be one of 'concurrent ment.’” my opinion

It is holding that so much of the in the St. Paul requiring employment case concurrent to be "similar” should be holding required overruled. Such a is not under the Workmen’s Compensation Act. Judge in this dis- Evans concurs

I am to state that authorized sent. dissenting. agree reached

Deen, Judge, While I result dissent, philosophy Judge of Hall’s and with the Judge Jordan’s Mercury Ind. Co. v. concurrence, not St. Paul special I do think 327) in order must be overruled to claimant’s in this case the arrive at the conclusion that time, earning at the figured basis of what was should be on the American Courier and with both which includes his fact, supports claimant’s view. When Press. In Idov not the board the court the issue whether Idov was before any job wages paid in than that on any other could consider injured. was in the affirma- employee was The answer which the tive, similar em- premise on the there be concurrent based standpoint ployment "similar” meant from and that clearly appears from statement: "There is risk. insurance This clothing nothing a store which would make it a connected with selling liquor, so occupation than that more hazardous far Id., (Emphasis supplied.) p. The record.” on the insurance appellant’s argument was based contention that involved, a of common vary according rates to the hazard matter be unfair allow the claimant to knowledge, and that it would jobs might for the income from two where of them take credit subject higher rate extremely hazardous and therefore only charged other premium than would have been had been simi- employment” should be construed to mean involved. "Similar employments The two lar risk rather than identical duties. fact, injury involved here meet this criterion —as matter delivering job picking up materials involved connected automobile, delivering also involved materials occasion, supervising packaging, joba but it also involved injured. no than that in which he was more hazardous employed by factories the ca- Suppose a man is two aircraft parts assembly inspects on the line. pacity inspector. In one he parts during experimental inspects the test- In the other he same flying plane. say very are similar —but Let us the duties only I is the one which the risk is not. think the hazard criterion logically applied applied can be these situations. It was the give salary here this claimant a should be wages paid representing weekly compa- him both base the total nies. overruling I

Nor do see where the Idov case would reach the goal anticipated concurring merely opinion. in the This case estab- may salary lished that there are situations where base be com- puted adding paid by employer party not is a who only to the claim. If this would case overruled result that the board could in no instances consider total ar- compensation. riving at

45561. HARDEN et al. v. CLARKE et al. et HARDEN al. v. MORRIS et al. Argued September 8, 197 0 Decided December Rehearing Cert, applied denied December 1970 — for.

Case Details

Case Name: Black v. American & Foreign Insurance

Court Name: Court of Appeals of Georgia

Date Published: Nov 25, 1970

Citation: 179 S.E.2d 679

Docket Number: 45429

Court Abbreviation: Ga. Ct. App.