[Plaintiff, Appellant]
[Defendant, Appellee] Samsun Transportation Co., Ltd. (삼선운수주식회사), Litigation Representative Attorney Cho Hui-jong (조희종)
[Prior Judgment]
Seoul High Court, Judgment rendered on October 15, 1987, Case No. 87Na1544
[Order]
The part of the judgment below concerning the plaintiff's loss on the claim for property damages is reversed, and this part of the case is remanded to the Seoul High Court.
The remainder of the plaintiff's appeal is dismissed.
The costs of the dismissed portion of the appeal shall be borne by the plaintiff.
[Reasoning] As to the grounds of appeal by the plaintiff's litigation representative:
1. In calculating the amount of the plaintiff's property damage arising from this traffic accident, the court below found the following facts: the plaintiff joined Taeseon Co., Ltd. (주식회사 태선), a leather manufacturing company, on November 1, 1984, and worked as a leather painter; on August 23, 1985, while driving a power tiller, he was struck by a truck owned by the defendant and suffered injuries; due to the aftereffects of the injuries, he lost his working capacity and resigned on April 6, 1986; immediately before the accident, he received wages of 308,760 won in May 1985, 243,410 won in June, 244,440 won in July, and 259,590 won in August 1985; and he received bonuses equivalent to the monthly base salary of 220,500 won each June and December. Based on these facts, the court below determined the average monthly income to be 288,060 won and used this as the basis for calculating the damages equivalent to lost income and lost retirement allowance. The calculation method set out in the judgment was as follows:
(308,760 × 8/31 + 243,410 + 244,440 + 259,590 × 23/31) ÷ 92 × 365/12 + (220,500 × 2 ÷ 12)
Article 19, Paragraph 1, first clause of the Labor Standards Act (근로기준법) provides that "average wage" means the amount obtained by dividing the total amount of wages paid to the worker during the three months preceding the date on which the cause requiring the calculation arose, by the total number of days in that period. In calculating the three months preceding the date on which the aforementioned cause arose, the first day, i.e., the date on which the cause arose, must not be included in the calculation (Article 157 of the Civil Act (민법)). Therefore, in this case, the three calendar months must be calculated retroactively from the day before the date on which the cause arose, that is, from August 22, 1985.
Accordingly, in the calculation formula of the court below, "the 8th of May" and "the 23rd of August" should correctly have been "the 9th" and "the 22nd," respectively. Furthermore, while the court below recognized that bonuses constitute part of the wages forming the basis for calculating the average wage, it adopted a calculation method whereby the total monthly wages, excluding bonuses, were divided by 92, the number of days in the calculation period, to derive a daily average amount, from which the monthly wage amount was calculated; the bonus amount was separately calculated by dividing its total by 12 to obtain a monthly equivalent amount, which was then added to the average monthly wage amount. Although this calculation method alone is disadvantageous to the plaintiff,
insofar as bonuses are to be regarded as a type of wage, the more reasonable calculation method would be to first include the bonuses for the three months preceding the date on which the cause under Article 19 of the Labor Standards Act arose within the total amount of wages, and then divide that total amount by the total number of days in that period. Using the correct calculation method as set forth above
([(308,760×9/31+243,410+244,440+259,590×22/31)+(220,500×2×3/12)]÷92×365/12),
the resulting figure of 288,258 won is 198 won greater than the plaintiff's average monthly income of 288,060 won derived from the formula adopted by the court below. This discrepancy affects the outcome of the judgment, and therefore this ground of appeal has merit.
2. The court below deducted the retirement allowance already received by the plaintiff from the damages equivalent to the lost retirement allowance and recognized an amount corresponding to the rate of the plaintiff's diminished working capacity applied to that amount. This is proper (see this Court's Judgment of June 14, 1988, Case No. 88Daka3656), and there is no error of misapplication of law as argued. Furthermore, there is no violation of the rules of evidence, as argued, in the court below's process of determining the degree of the plaintiff's diminished working capacity. This ground of appeal is without merit.
3. The court below, comprehensively considering the undisputed authenticity of Defendant's Exhibits No. 2-1 through 2-6 and the overall purport of the pleadings, found that the National Freight Trucking Mutual Aid Association (전국화물자동차공제조합), of which the defendant was a member, paid 756,000 won to the plaintiff on behalf of the defendant as part of the damages, and deducted this amount from the property damages to be awarded to the plaintiff.
However, the plaintiff argued before the court below that the said 756,000 won was paid by the mutual aid association as nursing care fees for the period during which the plaintiff's wife provided nursing care to the plaintiff while he was hospitalized as a serious patient undergoing two brain surgeries, and therefore should not be deducted from the damages equivalent to future medical expenses and lost income. The plaintiff also raised an objection regarding the evidence, stating that the said Exhibit had originally borne the description "nursing care settlement money, etc.," but that a piece of paper stating "part of the damages" had been affixed over it. It is clear from the record that the plaintiff further stated that the original document could not be produced because it could not be located due to personnel changes among the defendant's relevant staff.
Examining the said documentary evidence, it is clearly apparent, even on its face, that a portion of the original page had been separately covered and a new slip affixed, as argued by the plaintiff. Moreover, according to the testimony of witness Jeon Yeong-cheol before the court below, which the court below did not reject, the National Freight Trucking Mutual Aid Association pays nursing care fees at the rate of 3,600 won per day, amounting to 108,000 won per month, which coincides with the amount stated in the said Exhibit. Nevertheless, the court below disregarded the plaintiff's objection regarding document alteration and rendered its judgment on the premise that the entire documentary evidence was authentic. Not only was this measure erroneous, but the court below's conclusion also fails to conform to the purport of the documentary evidence itself. This constitutes an omission of judgment and a violation of the rules of evidence; insofar as the amount in question corresponds to nursing care fees, the court below erred, in a manner affecting the judgment, by treating it as though the plaintiff had received it as part of the property damages not claimed by the plaintiff, and by taking this into account in calculating the amount of damages. This ground of appeal has merit.
Accordingly, the portion of the judgment below concerning the plaintiff's loss on the claim for property damages falls under Article 12, Paragraph 2 of the Act on Special Cases Concerning Expedition of Legal Proceedings (소송촉진등에관한특례법), and thus cannot avoid reversal; this portion is therefore remanded to the court below. As for the portion concerning consolation money (solatium) awarded to the plaintiff, since no grounds of appeal were raised against it, this portion of the appeal is dismissed, and the costs of this dismissed portion of the appeal shall be borne by the plaintiff. It is so ordered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Yoon Young-cheol (Presiding Justice), Justice Park Woo-dong, Justice Lee Jae-seong, Justice Kim Yong-jun