Opinion
20555.
SUBMITTED SEPTEMBER 14, 1959.
DECIDED NOVEMBER 4, 1959. REHEARING DENIED NOVEMBER 19, 1959.
Certiorari to the Court of Appeals of Georgia — 99 Ga. App. 534 ( 109 S.E.2d 74).
Nall, Miller, Cadenhead Dennis, B. Carl Buice, for plaintiff in error.
B. C. Gardner, Jr., H. P. Burt, Smith, Gardner, Kelly Wiggins, contra.
There was no competent evidence to sustain the award made by the Director of the State Board of Workmen's Compensation.
SUBMITTED SEPTEMBER 14, 1959 — DECIDED NOVEMBER 4, 1959 — REHEARING DENIED NOVEMBER 19, 1959.
The Court of Appeals affirmed the judgment of the superior court, which judgment affirmed the action of the State Board of Workmen's Compensation in approving the findings of fact and award of compensation by the hearing director of the board. This court granted certiorari on the sole issue as to whether or not there was any competent evidence to support the award. In so far as germane on the issue before this court, the findings of fact by the hearing director were as follows:
"From the evidence presented at the hearing, I find that the deceased had been an employee of the Atlantic Company for fifteen years or more prior to his death and that he had been paid a salary up to July, 1956, as an employee. His duties as an employee consisted of the delivering of ice and coal for the Atlantic Company to customers in certain area of Albany, Georgia. I further find that in July, 1956, the deceased became what was called a `semi peddler' and served in that capacity until the latter part of August 1956. During that period of time the Atlantic Company furnished him a truck to deliver ice to customers, paid him no salary but paid him a commission on ice sold. From the latter part of August to the middle of October the deceased was still a semi-peddler, and during that time the Atlantic Company furnished him a truck to deliver ice and paid him a salary of $7.00 per week in addition to commission. Beginning October 18, 1956, the deceased became what was called a `peddler.' The Atlantic Company purportedly sold the truck used for delivering ice to the deceased, paid him no salary and allowed him to buy ice from them at the rate of 40 ¢ per hundred pounds for re-sale . . . However, from the evidence presented I find as a matter of fact that during the period that the deceased was denominated `peddler' he received the ice for delivery in the same manner as when he was an employee and a semi-peddler and at the same time of the day, and I further find that he was directed by the Atlantic Company to deliver ice to specific customers when customers called to the ice company and placed their orders for ice . . . I further fond from the evidence that although a formal sale contract was entered between the Atlantic Company and the deceased for the sale and purchase of the truck used by the deceased by its conduct the employer did not consider it valid. The conduct referred to on the part of the Atlantic Company is their failure to require the deceased to make each payment as provided in said contract, that is, payment in the amount of $60.00 per month. I further find from the evidence presented by the defendant and marked defendant's exhibit No. 1 that between the time of the sale of the truck and the time of the death of the deceased, the deceased had paid to the Atlantic Company only the amount of $47.00. Further the employer by its conduct upon the death of the deceased Moseley when it picked up the truck they purportedly sold to Moseley, carried it to its truck yard and subsequently used the same in its business and then re-sold it without formally foreclosing the retention title contract, indicates that the employer did not consider the sale of the truck a valid sale. In short, it appears that this arrangement under which employees of the Atlantic Company are made `peddlers' of ice is nothing more than a stratagem devised for the purpose of evading liability under the Workmen's Compensation Act. Based on all the evidence, I find as a matter of fact that Charles James Moseley was an employee of the Atlantic Company on December 7, 1956, earning an average weekly wage of $39.28. This average weekly wage is derived from evidence stipulated at the hearing concerning the amount of ice delivered to the deceased for the thirteen weeks immediately prior to death. For the period September 7, 1956, through October 26, 1956, the employee was delivered 89,200 lbs. of ice. The deceased was charged 55 ¢ per hundred for the ice and re-sold it for the standard rate of 80 ¢ per hundred lbs. The profit rate of 25 ¢ per hundred the employee earned $223.00 during that period from the sale of ice. During that period of time for the week ending October 5, 1956, the employee was paid by the Atlantic Company $6.50 for services rendered and for the two weeks period ending September 21, 1956, the deceased was paid the sum of $14.00 by the Atlantic Company for services rendered. For the period October 26, 1956, through December 7, 1956, a total of 65,525 pounds of ice was delivered to Charles James Moseley and he was charged at the rate of 40 ¢ per hundred lbs. for that ice. He resold this ice at the standard rate of 80 ¢ per hundred, and therefore earned the sum of $267.10 for that period of time. By adding the $223.00 and $20.50 earned while the deceased was called a semipeddler and $267.10 earned while he was called peddler and dividing that total by 13 we arrive at the average weekly wage of $39.28. While it may be true that Moseley did not sell all of the ice delivered to and in fact returned some of the ice for credit, such information was not produced at the hearing or by stipulation subsequent to the hearing."
Findings of fact by a Director of the State Board of Workmen's Compensation, and approved by the full board, are conclusive on appeal if supported by any competent evidence. Thompson-Starrett Co. v. Johnson, 174 Ga. 656 ( 163 S.E. 745); Fried v. United States Fidelity Guaranty Co., 192 Ga. 492 ( 15 S.E.2d 704); Royal Indemnity Co. v. Coulter, 213 Ga. 277 ( 98 S.E.2d 899).
The amount of compensation due under our Workmen's Compensation Law (where the claimant is entitled thereto) is to be calculated upon the average weekly wages of the employee, the average weekly wage being 1/13 of the wages earned in the 13 weeks immediately preceding the injury. Ga. L. 1945, p. 486; Code (Ann.) § 114-402. In the present case, the hearing director found that the sole wages paid as such to the deceased by the employer in the 13 weeks preceding the employee's death totaled $20.50. This finding is not only authorized by the evidence, but is demanded, since there is no conflict as to the amount. Whether or not the calculation made by the director as to the earnings of the deceased as a peddler is correct and supported by the evidence, need not be determined. Clearly such amounts, if made by the deceased, do not fall within the term "average weekly wages" under the Workmen's Compensation Law.
"Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen's compensation act, which contemplates that compensation shall be fixed in proportion to the employee's wages as applied to the particular injury." Georgia Ry. Power Co. v. Middlebrooks, 34 Ga. App. 156 ( 128 S.E. 777); Fidelity c. Co. of N. Y. v. Windham, 209 Ga. 592 ( 74 S.E.2d 835); West End Cab Co. v. Stovall, 98 Ga. App. 724 ( 106 S.E.2d 810).
The powers of all public officers are defined by law. Code § 89-903; Carter v. Johnson, 186 Ga. 167 ( 197 S.E. 258); McCallum v. Almand, 213 Ga. 701, 705 ( 100 S.E.2d 924). The Workmen's Compensation Law does not vest in the board, or any director thereof, authority to classify the earnings of a peddler as wages so as to extend liability or coverage under the law.
Judgment reversed. All the Justices concur, except Wyatt, P. J., who dissents.