On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling and Proctor. For modification -- Justice Heher. Heher, J. (dissenting).
The judgment is affirmed for the reasons expressed in the opinion of Judge Francis in the Appellate Division, reported at 49 N.J. Super. 19 (1957).
The issue here concerns an assessment of the quality of R.S. 34:15-37, as amended by L. 1945, c. 74, providing thus: "'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," and five days "shall constitute a minimum week."
The Appellate Division agreed on the nature of the hiring, but divided on the significance of the statute. The majority found that "[i]n 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"; "[d]uring 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 Thursday in the remaining three"; and, finally, "the duties of the employment were performed over two four-hour days rather than one day of eight hours duration"; and this is the hypothesis of fact upon which the majority proceeded to judgment.
The claimant was 68 years of age at the time of the accident, June 3, 1954, 70 at the time of the hearing. Her employment by American Stores began in 1942 or 1943, during the period of a labor shortage under the war economy; her husband was then American's "meat manager" in its East Orange store; there was no agreement as to the "number of hours" of the work day or the number of work days per week; she worked "whenever [she] was needed"; "whenever [she] was needed, [she] was called"; as to the daily service hours, she "was supposed to work as long as [she] was needed." The rate of pay was then 80 cents per hour; the hourly rate was $1.15 at the time of the mishap. At the outset, she worked four days per week, or more if needed, "behind the butcher counter," cutting meat and serving the trade; the meat department was in operation eight hours per day, six days a week. But whatever the daily and weekly hours of service at the beginning, there can be no doubt that long before the accident the service period had fallen into the settled pattern of two four-hour days per week, a relation basic to the claimant's employment that in all likelihood would continue.
The majority of the Appellate Division concluded, "contrary to Langheld v. Federal Shipbuilding and Drydock Co., 25 N.J. Misc. 159 (Com. Pl. 1947)," that "in establishing the basis for computing the daily wages for an employee hired at an hourly rate of pay, the [statutory] allusion to the 'customary number of working hours constituting an ordinary day in the character of the work involved ' has
reference to the regular or normal working day followed by the employer in the line or type of work in which the particular employee is engaged," citing Ostatnik v. Hamilton, 43 N.J. Super. 469 (Cty. Ct. 1957), and "[c]onversely, in our opinion the reference is not to the number of hours in a day the employee is called upon to work under his contract -- unless the type of occupation is such that a lesser number of hours than eight are customary or perhaps necessary because of its nature."
Applying this interpretation, the holding was that the "undisputed proof shows the character of the work involved to be such that the customary number of hours in the ordinary work day is nine and the customary number of days in the work week is five," and "[a]ccordingly, petitioner's compensation rate must be reached on the basis of that work day," and "[t]he fact that the weekly rate of $30 will give the petitioner more as compensation than she was ever paid as wages" by American "cannot be regarded as significant in the exercise of our judicial function"; "[o]ur task is to construe and give effect to the intention and mandate of the Legislature," citing Carter v. Ocean Accident & Guarantee Corporation, 190 Ga. 857, 11 S.E. 2 d 16 (Sup. Ct. 1940); Morrison-Merrill & Co. v. Industrial Commission of Utah, 81 Utah 363, 18 P. 2 d 295 (Sup. Ct. 1933), and it is "perfectly obvious that if she was engaged to work one eight-hour day doing the very same work, the compensation rate would be $30 weekly (9 hours x $1.15 per hour x 5 days x 2/3, but reduced to the statutory maximum of $30)," and having in mind the character of the ...