Lovette v. Reliable Manufacturing Company

136 S.E.2d 685 (1964)

262 N.C. 288

Eloise LOVETTE, Mother, John Lovette, Brother, Eloise J. Levette and Samuel Lovette, Deceased, Employee, v. RELIABLE MANUFACTURING COMPANY, Employer, and Employers Mutual Casualty Company, Carrier.

No. 594.

Supreme Court of North Carolina.

June 12, 1964.

*686 Schoch & Schoch, by Arch K. Schoch, High Point, for plaintiff.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendants.

SHARP, Justice.

Under the North Carolina Workmen's Compensation Act, compensation for the injury or death of an employee is based on his average weekly wages. These must ordinarily be determined by the employee's actual earnings in the employment in which he was injured during the fifty-two weeks, or such lesser period as he may have worked, immediately preceding his injury. G.S. § 97-2(5); Liles v. Faulkner Neon & Electric Co., 244 N.C. 653, 94 S.E.2d 790. The purpose of the statute is to base compensation upon the normal income which the employee derived from his employment. To provide for situations in which, because of the shortness of time during which the employee has worked for his employer or the casual nature or terms of his employment, it would be impractical or unjust to compute the average weekly wages as above defined, the statute requires that "regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by *687 a person of the same grade and character employed in the same class of employment in the same locality or community."

In the instant case, the only evidence in the record tending to show the average weekly amount being earned at any time before Lovette's injury by casual employees of his grade and character and employed in the locality to unload orders of furniture to be delivered by truck from the factory to the retailer, was that concerning the wages which Harris paid Dumassix dollars and subsistence of two dollars a day. There is evidence of the hourly wage paid other such workers but not the weekly wage. Lovette was, at most, a casual employee of the Company and, except for the stipulation, he would have been outside the purview of the Act. Under the circumstances of this case, no reason appears why the wages he had actually received during that week, $10.67, should not be determinative of his average weekly wages unless, as plaintiff contends, compensation under the North Carolina Act is subject to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219, which then required that a minimum hourly wage of one dollar be paid employees engaged in interstate commerce. 29 U.S. C.A. § 206.

Thus, this appeal presents the single question: Is the Fair Labor Standards Act of 1938 applicable to awards made pursuant to the North Carolina Workmen's Compensation Act? We concur in the answer which the Supreme Court of Georgia made when the question was presented to it: "As we view the matter, the Federal wage and hour law has no bearing whatever upon compensation for injury, except that because of it the employee may have been receiving a different wage. * * * The question at last is as to the weekly wage, for it is this and this alone that will determine the compensation * * *." Bituminous Casualty Corp. v. Sapp, 196 Ga. 431, 26 S.E.2d 724; 99 C.J.S. Workmen's Compensation, § 292b.

In Miami Copper Co. v. Schoonover, 65 Ariz. 239, 178 P.2d 554, a claimant under the Arizona Compensation Act was injured while working in interstate commerce under a collective bargaining agreement between the union and his employer which provided for incentive bonus payments in addition to a guaranteed base wage. In such situations the Arizona law provided that an injured employee should "receive compensation on the basis only of the guaranteed wage as set out in the contract of employment." The contract was made pursuant to the requirements of "the Wagner Act, the Wage Stabilization Act, the Fair Labor Standards Act, and the Wage and Hour Law." The plaintiff contended that the Federal law determined the amount of the monthly wage which was the basis of his compensation and not the Arizona Workmen's Compensation Act. In disposing of this contention the Court said:

"* * * If rights under those Acts were here involved, unquestionably the extra wages or remuneration earned by the employee as a result of his personal efforts would constitute a part of his average monthly wage. "* * * No issue is here presented, nor could it be, that the Company has in any respect failed to comply with all of the Federal acts above enumerated. Certainly Federal enactments would control where any violations of those laws were involved. * * * "The Federal Government has moved into the field of minimum wages and maximum hours where employees are engaged in interstate commerce. It has not moved into the field of disability compensation. The Arizona Workmen's Compensation Law, Code 1939, § 56-901, et seq., is clearly within the field of permissible state legislation under its police power. Ocean Accident & Guarantee Corp. v. Industrial Commission of Arizona, 32 Ariz. 275, 257 P. 644. The decision that is most nearly in point on the question here involved *688 is from the Georgia Supreme Court, Bituminous Casualty Corp. v. Sapp, 1943, 196 Ga. 431, 26 S.E.2d 724, 725."

We hold that the Federal statutes do not affect the amount of compensation claimant is entitled to receive under the provisions of the North Carolina Workmen's Compensation Act. Under G.S. § 97-38 she is entitled to receive compensation at the minimum rate of ten dollars a week.

The judgment of the Superior Court is

Affirmed.