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Maver v. Dwelling Managers Co.

Decided: February 8, 1960.

MARJORIE MAVER, PETITIONER-RESPONDENT,
v.
DWELLING MANAGERS CO., AND FIDELITY CASUALTY CO. OF NEW YORK, RESPONDENT-APPELLANT



On appeal from Workmen's Compensation Division.

Lyons, J.c.c.

Lyons

The matter here in controversy is the proper method of computing the wages of the deceased employee under the circumstances found in this case.

Decedent died as the result of a heart attack suffered while he was repairing a sink in the apartment house where he and his wife were jointly employed as janitors. Deceased was regularly employed by another employer as a boilermaker-welder. In determining the rate of compensation to be awarded the petitioner-widow the Deputy Director combined the wages from the boilermaker's job and one-half of the income received by decedent and petitioner for their janitorial services.

The respondent challenges the propriety of massing the earnings from two separate and distinct employments in establishing the rate of wages. The petitioner, on the other hand, makes the broad claim that such a practice has long been the law where the concurrent employments are similar in nature. It appears, however, that the only case in this

State dealing with a similar problem is Knight v. Cohen , 56 N.J. Super. 516 (App. Div. 1959). There the court determined that it was improper to combine the wages received by an employee from his employment as a truck driver and from employment where he performed household and gardening chores, for the reason that the employments were "unrelated in type of work." The court did not determine, however, whether the rule providing for the combining of wages from separate, similar employments would find acceptance in this jurisdiction under the terms of our statute.

The petitioner's argument in support of the award really rests upon favorable declarations found in other jurisdictions to the effect that where an injured employee is engaged in collateral employments which are similar in nature, the wage base shall be computed by aggregating the wages paid in the similar employments. Thus, aggregation of wages was held proper where: deceased had been employed by four separate employers as a watchman, Moochler v. A. H. Herrick & Son , 274 App. Div. 841, 286 N.Y.S. 397 (App. Div. 1936), affirmed 272 N.Y. 545, 4 N.E. 2 d 729 (Ct. App. 1936); a school dietitian was also employed by a church to look after the preparation of dinners served by the various church societies about 10 or 12 times a year, McDowell v. Flatbush Congregational Church , 252 App. Div. 799, 298 N.Y.S. 892 (App. Div. 1937), affirmed 277 N.Y. 536, 13 N.E. 2 d 462 (Ct. App. 1938); deceased was employed as a night watchman by six employers, Western Metal Supply Co. v. Pillsbury , 172 Cal. 407, 156 P. 491 (Sup. Ct. 1916); decedent was employed by three employers as janitor, In re Howard , 71 Ind. App. 557, 125 N.E. 215 (App. Ct. 1919); decedent had been working in three jobs as a retail salesman, two in liquor stores, one in a clothing store, St. Paul-Mercury Indemnity Co. v. Idov , 88 Ga. App. 697, 77 S.E. 2 d 327 (Ct. App. 1953). Conversely, it is generally held that combining of wages cannot take place where the jobs performed are dissimilar in nature, as where

the occupations were those of janitor and barber, Birch v. Budd , 256 App. Div. 53, 8 N.Y.S. 2 d 781 (App. Div. 1939). In some few jurisdictions dissimilarity has not barred the grossing of wages from collateral employments. In Juan's Case , 125 Me. 361, 134 A. 161 (Sup. Jud. Ct. 1926), there was approval of combining wages from the employments of caretaker, janitor, fireman and mason's tender. In McCummings v. Anderson Theatre Co. , 225 S.C. 187, 81 S.E. 2 d 348 (Sup. Ct. 1954), a like result was reached, but there the facts showed that the petitioner was injured on a job where he worked but one day a week as a projectionist, earning $6 therefor, while at his regular job as bricklayer he averaged in the neighborhood of $60 per week. But the court there relied on a special provision of the statute to the effect that where the usual method of computing average wages "would be unfair," "such other method * * * may be resorted to as will most readily approximate the amount which the injured employee would be earning were it not for the injury."

The petitioner argues that the facts developed in the trial of this case bring her within the "similar occupation" rule. The record reveals that in their joint employment as janitors, the petitioner and decedent performed a great variety of duties: collecting rents and keeping the books relating thereto, cleaning and washing halls, cleaning the incinerator, taking out garbage twice a week, shoveling snow, installing and removing screens, repairing roof leaks, replacing washers and doing some plumbing jobs, doing work on the boiler when it broke down, and repairing electrical switches. In connection with the boiler work the petitioner related that it broke down "frequently," "off and on" during the winter, and that decedent would sometimes have to get up at 3 A.M., shut off the fire, and work inside the boiler for "2 or 3 hours." The deceased performed all of the heavy work incident to the janitorial job and this would consume an average of two hours a day, save when the boiler needed attention. A partner in the respondent

company testified that the boiler had caused a "lot of inconvenience and extra work for the superintendent," and that it had also necessitated the calling-in of service men and boiler welders to put tubes in the boiler. He agreed that the decedent must have ...


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