*1 368 887, State, App. 159 v. Ga. acquittal. Milner a verdict demand ad- of the evidence 602) . as a review (285 . . Inasmuch SE2d
888 to enable sufficient ample evidence there was at trial reveals duced charged of the offenses the existence of facts to find any rational trier court to re- doubt, for the trial not error beyond it was a reasonable acquittal. Maddox v. for a verdict fuse the motion directed grant 617) (1984).” v. 498, (317 Sprayberry 499 SE2d State, App. 170 Ga. 731). (4) (330 574, enumeration of 577 SE2d State, App. Ga. 174 merit. error is without of error in his enumeration contends second
2. The defendant
per-
“A
support
his conviction.
was not sufficient
that the evidence
unlawfully
takes
by
when
taking
son
the offense
theft
commits
him
depriving
the intention
. . .
of another with
any property
is taken
property
manner
regardless
property,
. .”
OCGA 16-8-2.
evidence
at trial
recited herein and other
adduced
From the facts
to enable a rational
evidence
we are satisfied that there was sufficient
doubt of
guilty beyond
reasonable
trier of fact to find the defendant
charged.
taking
elements of
offense
theft
essential
(99
560);
Jack-
SC
61 LE2d
Virginia,
v.
H. Attorney, District for MILLS, v. KIERBOW.
70593. THOMASTON INC. Carley, Judge. com- appellee-claimant the time in the instant workers’
At security pensation already receiving social injured, case was she was $5,000 per appellee only approximately could earn benefits. Because security the full social eligibility and still retain her for entitled, appellant-em- otherwise she worked which she was thresh- had reached that ployer only earnings until such time as her work, however, she was appellee old did amount. When a pe- full-time over generally she would Consequently, full-time. months, unemployed riod of several after which she would remain the balance of the
Appellee injured January her knee on 1981. She had been working September 40 hours week since of 1980 and continued to February Appellee work until when she became disabled. *2 September only tried to return to work in but could work per day. September totally three hours On she became dis- (ALJ) appellee The judge compen- abled. administrative law awarded week, sation in the amount per per year. or a total of $110 award, According appellant argued the ALJ’s had “that since claimant was only part-time when she had her work related injury . . . she compensation should not receive workers’ benefits of $5,000 annually more than because of her ‘as needed contract’ with employer.” However, agree[d] the ALJ had “not with this argu- ment. The governing average weekly statute does not wage provide for such a limitation.”
The award of the ALJ was made the award of the Full Board. superior court affirmed the Full Appellant applied Board. to this court for a discretionary appeal from superior court’s order of af- firmance. Appellant’s application granted order that we might address applicability of OCGA 34-9-260 under such facts as are §
presented in the instant case.
OCGA provides 34-9-260 average weekly wages that “the of the § injured employee at the time of shall be taken as the basis upon compute compensation. which to ...” pro- The statute further vides for certain methods “average weekly wages” of an employee “shall be . . .” determined. OCGA 34-9-260 § provides: “If injured employee employ- shall have worked ment in working which he was at the injury, time of the whether for the same or employer, during substantially another the whole of 13 immediately weeks preceding injury, his average weekly wage shall be one-thirteenth of the wages total amount of earned in such employment during the 13 . provision weeks. .” It is this that ALJ compute used to compensation awarded to Subsec- tion However, OCGA 34-9-260 is inapplicable here. § (3) provides that either of foregoing methods can- “[i]f not reasonably applied, weekly the full-time of the injured employee shall be . . provision appel- used. .” It is this lant contends applicable authority is the calculating appellee’s “average weekly wage.” Apparently, appellee the en- earned tirety of wages by months, her working during period of several appellant would have her upon entirely based an fic- tional average weekly “full-time wage” upon approximately based week, per hours of average appel- number of hours lee would required during have been to work an entire in order $5,000. to earn her Septem- from appellant worked appellee undisputed
It is weeks. The of 13 February 12, period excess ber until In such circum- unambiguous. are provisions of OCGA shall be one-thirteenth stances, employee’s “average during the employment such wages amount total “policy” Notwithstanding appeals (Emphasis supplied.) 13 weeks.” lends sup- considerations, in the statute itself which nothing there “cannot of OCGA 34-9-260 that subsection port to the assertion circumstances, which fairly be in the instant reasonably applied” for the correc- is a court clearly fall within its ambit. otherwise plain lan- such, apply As are bound to tion of of law. we errors properly are policy Issues of guage pertinent statutes as written. legislative addressed to bodies. (3) specifies that “the full-time
Moreover, OCGA 34-9-260 (Emphasis sup- injured employee shall used.” weekly wage of plied.) appellant’s interpretation, appellee’s Under received for the ultimately wages would that she be based statutory within frame- nothing entire calendar There *3 this artificial from week support work OCGA 34-9-260 to of |eap applicable the appropriate period determining to a as weekly wage statutory language All relates to base. example, provides as follows: employee. an For OCGA 34-9-260 Georgia “The of a member of the National average by the duty pursuant Guard on state to an order Gov- serving active monthly ernor and allowances of pay shall be seven-thirtieths of with computed individual in accordance Code Section 38-2-250.” Thus, clearly while contemplates the statute that when on member, duty, ordinarily duty Guard who serves on active a National summer, on two be during compen- weekends and weeks will Likewise, in injury wages. sated for the on the of a full week’s basis case, upon appellee’s compensation be based instant should average weekly wage which several receiving she had been months prior regard any average the date of her without based a full calendar appellee’s ¡§ under is
Computation OCGA 34-9-260 Compensation our objectives consistent with the overall of Worker^’ correctly Act “windfall.” The ALJ and Full Board and is not a (1) to applied unambiguous provisions OCGA § affirmed, superior so must we. instant facts. The court and J., Banke, J., Sognier, Judgment McMurray, C. P. affirmed. J., Benham, JJ., Deen, J., P. Pope Birdsong, P. concur. J., Beasley, dissent.
371 Deen, Judge, dissenting. Presiding
In seeking legislative the intent of the enactment where “word phrase capable meaning,” or is “take one more than one we must Georgia to a result.” Farm Bureau Mut. just leads and desirable (339 284) Joiner, (1985). Ins. Co. 177 Ga. App. SE2d Courts “[Stability way must just being generous. jus- be before must (216 839) (1975). Hopper, tice . . . .” Hall v. 234 Ga. SE2d justitia Fiat ruat caelum. interpretation literal would lead absurd mischie-
“[W]hen consequences vous purpose,” or thwart manifest we do not follow the (41 1042) Murray, exact letter of the Clark v. 141 Kan. P2d law. (1935). Being literalism, spirit ignoring overzealous while of the “ law, is at best pecksniffery’ juridical unwise. ‘Letter-of-the-law is a (203 sin.” v. Payne, Lowe subsection OCGA 34-9-260 law, must be read in pari materia. Without case citing major- ity opinion part-time employee effect holds that a should receive the same employee, benefits as a full-time which cannot I adopt the law. holding Bros., would Brisendine v. Skousen 326, 330) (1936): reasons, Ariz. 416 P2d “For the foregoing we hold the compensation of an who has been period month, for a of more than employment, by one but whose its thereof, nature terms is for a fixed number of hours month, day, nor character, intermittent its entitled to compensation only basis of the wages actually during the month.”
I fully concur in the dissenting opinion Judge of Presiding Bird- song express these thoughts, additional judgment trial court this instance should reversed.
Birdsong, Presiding Judge, dissenting. decision,
Under the majority’s this getting claimant a windfall $5,720 per year in workers’ benefits when she actu- ally earned no per year more than by working.
According decision, to majority’s the compensation her is based on imaginary year, full-time work per for 52 weeks when it is clear she was semi-retired only and worked a few months the
This is patently 34-9-261, provides violation OCGA which employee that an paid be compensation shall in workers’ benefits “a weekly equal benefit to employee’s two-thirds of the average weekly wage.” (Emphasis supplied.)
No one suggested, now, has ever until that an employee should under theory compensation receive more workers’ than she ever by earned would have working.
The majority apparently regrets this unfair and unreasonable re- the worked Mrs. Kierbow no suit, says has choice it 34-9-260 under OCGA preceding injury, her of thirteen weeks whole (3) clearly which 34-9-260 has majority ignored (2)] foregoing “If the methods either of [§ states: weekly wage of the full-time applied, reasonably fairly cannot As for (Emphasis supplied.) employee shall be used.” injured (b) Workers’ wage,” Rule weekly what is the “full-time is as- contrary appears, it provides: “Unless Compensation Board days, is the normal work- five that the normal workweek sumed is hours, daily wage one-fifth employee’s day eight is and that thus a Rule 260 assumes wage. (Emphasis supplied.) . .” weekly weekly figure full-time allows us to worked full-time but claimant it wage appears fact. (Rule (b)), which is that case, “contrary appears”
In this per 40 hours part-time claimant worked this semi-retired From did not work at all. few and otherwise months weekly reasonably that her it calculated this can is i.e., wage, based on hours year, her full-time week. merely a is
The thirteen-weeks rule usual best claimant’s mechanical which is the measure formula loss, it is legislature clearly provided in section actual but the result. not to be used if it reaches an unfair and unreasonable &c. Corp., Carter Ocean Accident
16) attempts compensation for explain philosophy underlying to part-time high Supreme work. The Court said: “The one aim consti- is for an em- tuting foundation this law loss is ployee injury. to his loss on That proportion account by proved earning his deprivation earnings, of future and is measured necessity It Under statute au- capacity. looks to the future. as it thority given past only is to in so reveals consider far by his regular earning capacity. yardstick think fairest We is what he was able injury to cover his can be measured actually earning to earn and when the misfortune came hope him. Good look the future with of advancement workmen by depriva- earnings, increased and the loss sustained capacity as demon- earnings earning tion of future the basis of his regular strated at the time of accident.” received (Emphasis supplied.) words, compensate his other the Act seeks the worker for
In past preced- history actual over the thirteen weeks loss. The worker’s regular earning it injury important “only his insofar as reveals ing bonus of full com- capacity.” Id. It is intended a windfall al- pensation prior a worker who worked thirteen weeks *5 though, example, may for at all rest of statutory
The use of for figuring formulae of a person is, truly part-time worker, who is who chooses to work only part-time part-time job or to work a chooses or at seasonal work and in effect has earning capacity, no full-time has been criticized Larson, where it disproportionately higher results an award than Larson, ever intended to earn. Workers’ Law, (c), cases, Compensation says Larson, 60.21 10-585. p. Such emphasize “serve to it the fact that is as to re- important sometimes ject as is to accept recent-wage it brief if realistic experience, ap- proximation of future is to be loss obtained.” figured
Where courts part-time employee have awards to a far in excess of his earnings, formula, actual based on a full-time wage Lar- says p. son at 10-591: “It is justification difficult see the of these cases that inflate knowingly beyond what the claimant in- past tended earn in and presumably intended to continue to future, earn in long as there is any sort residual or catchall clause that is available when more mechanical cannot formulas applied. . . . purpose calculation is not to [T]he arrive at some theoretical concept earning capacity; loss of rather it is to amake judgment realistic on what the claimant’s loss future is in light all the factors that are known. (Emphasis [Fn.]” supplied.)
In section and Board legislature Rule provided, words, Larson’s the “residual or catch all clause that is available when the more mechanical formula be applied.” cannot In saying it is forced to compensate by applying this claimant (1), the majority suggests legislature address the policy. matter legislature has already this, done in section Rule Board I am respectfully 260. therefore thoroughly mys- why tified as to majority insists it should award this claimant a clear windfall under section the majority
What has part-time done (who, worker herself, part-time) chose to work the same benefits available full-time worker. is patently to the full-time worker. unfair
I respectfully dissent. I am authorized state that Presiding Judge Deen and Judge Beasley join this dissent. Decided December
Rehearing denied December Sommers, V.
Susan appellant. Mostlier, B.
Johnny THE WATERS v. STATE.
70975.
(339 SE2d Presiding Judge. McMurray, of his trial conviction appeals from bench The Waters defendant cocaine, enumerating as error of grams than possession of more suppress his motion to denial of plea jeopardy, of former denial his acquittal. verdict of for directed evidence, denial of his motion and trafficking in cocaine and offense was indicted for the Waters evidence, by the trial granted was suppress to which filed a motion inquiries and 15, 1983. The court found that on March court by a Enforcement person Drug and automobile search defendant’s (DEA) airport, the Atlanta agent other officers at and Administration at officials the Sa obtained from customs as the result of information in carrying large amount cash airport defendant was vannah that briefcase, had failed to show State his were unauthorized lawfully. This court reversed the initial was obtained that information lawfully obtained information was that the initial ground on check, remanded the case security and permissible airport virtue of a as of such relevant issues the trial court “for redetermination to addressed, necessarily limited to the issue including but not were not approach ensuing interview point whether at [at ” State v. Wa unlawfully ‘seized.’ airport] Atlanta the defendant 614) (1984). ters, (2), stating order On the trial court issued another June having that no further evidence would parties agreed that both offered, previously transcript it would consider the evidence suppress rendering to its decision to the filed the motion DEA remaining to court found that other issues be decided. deplaned as he in Atlanta from Agent recognized Markonni defendant information from the Savannah law enforcement officials received identification, his approached question him where about money his brief- why carrying large had been he was sum case; by de- subsequent explanation given that conversation defendant’s consent Agent requesting fendant led to Markonni’s briefcase, was found gave; that search his defendant pen containing a along ballpoint with the shell of a briefcase powder suspected, proved, and later cocaine. white substance time in- not at The court further found that defendant was arrest, although Agent Markonni did formed he was under if he would then consent let him leave asked intend to defendant his obliged by raising person, which defendant search his