Decided: May 20, 1941.
ADOLPH DAVIDSON, PETITIONER-DEFENDANT,
NATHANSON FURNITURE STORES, INC., RESPONDENT-PROSECUTOR
For the prosecutor, McCarter, English & Egner (Verling C. Enteman).
For the defendant, Adrian Michaelson, Morris Edelstein and Thomas F. Meehan.
Before Justices Bodine, Perskie and Porter.
[126 NJL Page 430]
BODINE, J. The sole question suggested in this case is the meaning of the words "actually employed" as used in N.J.S.A. 34:15-37, which so far as pertinent to the present case is as follows: "Where prior to the accident, the rate of wages is fixed by the output of the employe, the daily wage shall be calculated by dividing the number of days the workman was actually employed into the total amount the employe earned during the preceding six months, or so much thereof as shall refer to employment by the same employer."
The prosecutor employed Adolph Davidson October 16th, 1939, as a salesman, giving him his samples, &c. Davidson appears not to have gone on the road till the next week when he earned $26.30. If actually employed for one week, he is entitled to compensation at one rate, but if employed for two weeks the figure is much less. The statute says, when the rate of wages is fixed by the output the daily wage is calculated by dividing the number of days actually employed into the total earnings.
[126 NJL Page 431]
In Highway Freight Co. v. Workmen's Compensation Bureau, 125 N.J.L. 168 (unanimously affirmed in 126 Id. 367), Mr. Justice Parker in construing the above quoted portion of the statute said: "the number of days the workman was actually employed" means "the number of days on which the workman was actually employed." In other words, it is not the day of hiring that controls, but rather the days on which the workman was actually employed. This was the rule followed in the Bureau and the Court of Common Pleas.
The writ will be denied.