Casey v. Board of Education, 219 N.C. 739 (1941)

May 31, 1941 · Supreme Court of North Carolina

219 N.C. 739

S. E. CASEY, Employee, v. BOARD OF EDUCATION OF THE CITY OF DURHAM, Employer, and THE TRAVELERS INSURANCE COMPANY, Carrier, and THE STATE SCHOOL COMMISSION, Self-Insurer.

(Filed 31 May, 1941.)

1. Master and Servant § 55d—

Findings of fact by tbe Industrial Commission, supported by competent evidence, are binding- upon the courts upon appeal.

2. Master and Servant § 39d — Finding that employee was injured in course of his employment by municipal board of education held conclusive.

The findings of fact of the Industrial Commission, supported by evidence, were to the effect that claimant employee was employed as janitor of a school for 8 months out of the year, his salary for this work being paid in part by the State School Commission, and was also employed in school maintenance work outside of his regular working hours as janitor and during the remaining four months of the year, his compensation for maintenance work being paid exclusively by the municipal board of education, and that he was injured in the course of his employment in maintenance work after regular hours in a school of which he was not custodian. Held: The findings support the conclusion of law that he was injured during his employment by the municipal board of education and that the municipal board and its carrier are solely liable for compensation for his injury. Ch. 358, sec. 22, Public Laws 1939.

3. Master and Servant § 41a—

Claimant was employed as janitor, his compensation for such work being paid in part by the State School Commission, and was also employed in school maintenance work, his compensation for the maintenance work being paid exclusively by the municipal board of education. He was injured while engaged in duties pertaining exclusively to school maintenance work. Held: An award computed on the basis of the total compensation customarily earned by claimant, rather than the compensation earned solely in school maintenance work, upon the Commission’s finding of exceptional conditions, is upheld. Ch. 120, see. 2 (e), Public Laws 1929.

4. Master and Servant § 45b—

A condition in a compensation insurance policy issued to a municipal board of education, relieving or lessening tbe carrier’s liability in cases where an employee receives bis remuneration in whole or in part from tbe State, has no application when tbe employee is injured while engaged solely in maintenance work paid for exclusively by the municipal board.

Appeal by tbe Board of Education of tbe city of Durham and tbe Travelers Insurance Company from Grady, Emergency Judge, at March Term, 1941, of DuhhaM.

This is a proceeding under tbe North Carolina "Workmen’s Compensation Act to determine tbe liability for injuries received by tbe plaintiff from an accident arising out of and in tbe course of bis employment.

Tbe facts found by tbe individual Commissioner and adopted and affirmed upon appeal by tbe Full Commission and by tbe judge of tbe Superior Court are as follows:

“1. That tbe Board of Education, City of Durham, bas accepted tbe provisions of tbe Compensation Law and tbe Travelers Insurance Company is tbe carrier.

“2. That tbe plaintiff, S. E. Casey, was employed as janitor or custodian of tbe Soutbside School, Durham, on a 12-months basis, and for eight months of this time was in part paid by tbe State School Commission, tbe remaining four months was paid from tbe local funds furnished through the Board of Education, City of Durham, and in addition thereto, was paid through the Board of Education, City of Durham’s special funds for extra maintenance work performed out of regular hours; that for bis services as custodian be received $18.00 per week, and for bis extra work, approximately 30c per hour.

“3. That the plaintiff, S. E. Casey, and P. H. Melvin, night watchman of tbe Junior High School, Durham, were properly requested by tbe school officials to do some painting- and maintenance work in a room at tbe Durham Junior High School on tbe night of November 29, 1939, so that tbe room would be ready for tbe use of tbe band following Thanksgiving; that on said night Casey, along with other custodians, attended a custodian’s school, and at tbe conclusion of tbe school be and Melvin went to tbe premises of tbe Junior High School to engage in tbe work, when Casey accidentally fell from one concrete walk, which was elevated, onto another, about 9:30 p.m., falling on his right arm and shoulder; that said injury was by accident arising out of and in the course of said Casey’s employment by the Board of Education, City of Durham; and, that as a result of said injury he was totally disabled for a week and a half, when he returned to his former employment, doing selective work, and receiving full wages until June 1, 1940, when he was laid off because of his inability to do the more laborious maintenance work during the summer season; tbat tbe plaintiff bas definite limitation of tbe use of tbe injured right arm at tbe present time due to tbe injury by accident and tbat be is entitled to further medical care.

“4. Tbat said Casey was not working for and was not being paid by tbe State School Commission at tbe time of bis injury by accident, November 29, 1939.

“5. Tbat for exceptional reasons it would be unfair to tbe employee to take bis earnings for tbe extra work be was doing at tbe time of bis injury to establish bis average weekly wage, and, it is, therefore, necessary to use bis full earnings to establish a wage that will most nearly approximate bis earnings if be were not injured.”

From judgment of tbe Superior Court affirming tbe award of tbe Full Commission “tbat said Board (Board of Education of tbe City of Durham) pay to tbe plaintiff compensation at tbe rate of $10.80 per week, for a week and a half’s total disability, beginning November 29, 1939, and thereafter at said rate beginning as of June 1, 1940, and in addition thereto, furnish tbe plaintiff with additional, reasonable, medical, surgical, and hospital care as may be necessary and pay for same after bills have been submitted to and approved by tbe Commission, and specifically furnish reasonable treatment necessary for tbe injured shoulder. Tbe question of permanent disability will be determined at a later date, if there is any,” and dismissing tbe State School Commission as a party defendant, appeal was taken by tbe city board of education and its insurance carrier.

Hedrick & Hall for plaintiff, appellee.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for State School Commission, appellee.

Sapp, Sapp & Atkinson for defendants, appellants.

ScheNck, J.

Tbe findings of fact are amply supported by competent evidence, and were therefore binding upon tbe Superior Court and upon this Court. Public Laws 1929, cb. 120, sec. 60 (N. C. Code of 1939 [Micbie], 8081 [ppp]); Early v. Basnight & Co., 214 N. C., 103, 198 S. E., 577; Saunders v. Allen, 208 N. C., 189, 179 S. E., 754; Buchanan v. Highway Commission, 217 N. C., 173, 7 S. E. (2d), 382.

Tbe Workmen’s Compensation Act is applicable to tbe State School Commission and to county and city administrative school units. Cb. 358, see. 22, Public Laws 1939. Tbe pertinent portion of said section of said act being as follows: “Liability of tbe State for compensation shall be confined to school employees paid by tbe State from State School funds for injuries or death caused by accident arising out of and in tbe course of their employment in connection with tbe State operated eight months school term. . . . The County and City administrative units shall be liable for 'Workmen’s Compensation for school employees whose salaries or wages are paid by such local units from local funds, . . .”

According to the findings of fact by the Commission the plaintiff was not working for and was not being paid by the State School Commission at the time of his injury by accident. He was engaged in the performance of his duties incident to school plant maintenance, for which the State School Commission was in no wise responsible and for which employment the State School Commission was not liable. He was engaged in this work at night, under a separate contract of employment with the Board of Education of the city of Durham, in a school building of which he was not the custodian, and while so1 engaged in the employment of the city board he sustained an injury arising out of and in the course of such employment. The facts found support the conclusion of law reached and the award made.

It would seem that the principal question involved in this appeal is whether the Commission employed a proper method in the computation of the average weekly wage of the plaintiff. The pertinent provision of the Workmen’s Compensation Act for determining the average weekly wage of an injured employee is found in chapter 120, section 2, subsection (e), of the Workmen’s Compensation Act of 1929. That section, after providing for the methods of computing the average weekly wage which are not applicable to this case, provides as follows: “But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computation of 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 his injury.”

The Commission found as a fact that on account of exceptional reasons, arising upon the facts, it would be unfair to the employee to employ the other methods for computing the average weekly wage and that it would be fair to compute such wage upon the basis of the amount customarily earned. It would seem that upon the facts found the Commission, in the exercise of its broad administrative powers, adopted a fair method of computing the average weekly wage of the plaintiff by ascertaining the approximate amount the plaintiff would have earned had he not been injured. Early v. Basnight & Co., supra.

The endorsement 1721 attached to the policy issued by appealing insurance carrier, which relieves or lessens the carrier’s liability in cases where the employee receives his remuneration in whole or in part from the State, would seem to have no application in this case, since the Commission has found, upon competent evidence, that the plaintiff’s accident arose out of and in the course of his employment by the city board, in the payment of the remuneration for such employment the State had no part.

The judgment of the Superior Court is

Affirmed.