Francis, Waugh and Smith. The opinion of the court was delivered by Francis, S.j.a.d. Waugh, J.s.c. (temporarily assigned), (dissenting).
Petitioner, Edith Engelbretson (apparently should be Engebretsen), suffered a compensable accident while in the employ of American Stores, for which she received an award based upon total and permanent disability. The appeal presents only one issue, that is, the legal propriety of the weekly rate at which the compensation is to be paid. Both the Division of Workmen's Compensation and the County Court fixed it at $30 weekly; the employer maintains it should be $15.33.
Mrs. Engelbretson, who was 70 years of age at the time of the hearing, entered the employ of American Stores in 1942 or 1943. At the time it was difficult to get help on account of the war and she was engaged to work whenever she was needed. No arrangement was made as to the number of hours or days per week to be worked; she was to be subject to call and "supposed to work as long as [she] was needed." The daily and weekly details were left to the discretion of the employer. The rate of pay was $.80 an hour, although at the time of the accident in 1954, it had been increased to $1.15. Her husband was the manager
of the meat department in the store at 462 Central Avenue, East Orange, New Jersey, and she was to assist, and thereafter did assist, in that department. Her labors were performed behind the butcher counter, cutting meat and waiting on customers. She was so occupied continuously under the same arrangement until June 3, 1954, the date of her accident.
The meat department operated six days a week, although the regular work week of the employees was five nine-hour days.
In the beginning Mrs. Engelbretson worked four and, apparently, occasionally five days a week. She put in the number of hours requested by her superior; sometimes it was the whole day, nine hours; other times it was less. On reporting for duty, usually she and the employer's representative signed a card which set forth the days and hours of the employment. A sample thereof appearing in the appendix shows, among other things, the dates: "6/2, 6/3," and
"Will work with you from 2 o'clock Wed. and Thurs. until closing time 6 p.m."
The employer produced the work records for 1951, 1953 and 1954. No explanation was given as to the reason for the absence of those relating to the years previous to 1951 or for 1952. However, the company does not dispute that she regularly put in longer days in and prior to 1953.
In 1954, although engaged almost every week (20 weeks between January and the week ending June 5), most of the time (15 weeks) she worked on Wednesday and Thursday for four hours each day. During the other five weeks the work period was two hours each on Wednesday and Thursday in two of them and four or five hours on Thursdays in the remaining three.
On this record, the employer contends that a part time customary work pattern of two four-hour days weekly was established and therefore under N.J.S.A. 34:15-37 the compensation rate should be computed by using the formula:
4 hours per day x $1.15 per hour times 5 days a week or $23 weekly. This would produce a compensation rate of $15.33 ($23 x 2/3). The Deputy Director felt that the statute required a different equation, namely, nine hours per day at $1.15 per hour times a five-day week, or weekly wage of $51.75, and a compensation rate of $30 weekly ($51.75 x 2/3 limited to the maximum of $30. L. 1951, c. 105). The County Court did not set out a specific formula but agreed that a work week of five days of at least eight hours daily was in order, and called for payment of the maximum rate of $30.
The statute, N.J.S.A. 34:15-37, around which the controversy centers, provides inter alia:
"'Wages' * * * shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. * * * Where the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by five, or if the employee worked a greater proportion of the week regularly, then by five and one-half, six, six and one-half or seven, according to the customary number of working days constituting an ordinary week in the character of work involved. Five days shall constitute a minimum work week. * * *." (Emphasis supplied)
As indicated, the employer maintains that the legislative language requires the daily wage to be ascertained by multiplying petitioner's hourly rate of pay by the number of hours she customarily worked at the time of the accident, i.e. , $1.15 x 4 which results in a weekly wage of $23 and a compensation rate of $15.33. The argument is that the direction to use as the multiplier the " customary number of working hours constituting an ordinary day in the character of the work involved " means the number of hours usually worked by the particular employee involved, and not the number of hours customarily or normally worked by employees generally in the type operation in which the employer is engaged. More specifically, the claim is that in the administration of this portion of the Workmen's
Compensation Act, the rate of payment is not arrived at by using the number of hours constituting the normal or regular work day as fixed by the employer's custom or practice in the kind of operation involved but on the basis of the customary experience of the particular employee (who is seeking compensation) with respect to hours of employment.
Some support for the employer's position is found in Langheld v. Federal Shipbuilding and Dry Dock Co. , 25 N.J. Misc. 159 (Com. Pl. 1947), where the proof showed that the employee was hired as a part-time canteen worker for four hours daily at $.65 1/2 per hour. The court held that the customary number of hours constituting an ordinary day in the character of the work involved was four hours. It was said among other things that the petitioner had contracted and started her initial period of hiring on the basis of a customary and ordinary working day of four hours and the view was taken that
"* * * the statute contemplates compensation on the basis of the earnings of the employee herself, rather than upon that of herself and other employees combined. If this be true then the issue resolves itself into a question of fact, to wit, what was the customary number of working hours constituting an ordinary day in the petitioner's experience during the period of her employment with respondent?"
This decision was not reviewed by an appellate tribunal. However, it was used as a precedent by the employer in Mahoney v. Nitroform Co. , 20 N.J. 499 (1956). In that case it appeared that the decedent Mahoney, who had a full-time occupation elsewhere, worked in his spare time nights, weekends and holidays, an average of 20 hours a week for a corporation which he and others had organized. Citing the Langheld case, the employer claimed compensation should be predicated on five four-hour days and the rate fixed on the basis of 40% (the pertinent death case allowance) of 20 x the hourly rate. The Supreme Court neither approved nor disapproved the Langheld doctrine in its own factual setting but sustained an award resting on a
full eight-hour, five-day week, saying that to ignore the contemporaneous full-time employment would "obviously frustrate the objective of wage calculation sought to be attained by the statute." 20 N.J. at page 510. Favorable reference was made to Bennett v. Fertig , 10 N.J. Misc. 1021 (Sup. Ct. 1932), affirmed per curiam 110 N.J.L. 510 (E. & A. 1933), where the employee worked ...