Gillen v. Ocean Acc. & Guarantee Corp.

• Decision Date: 24 May 1913
• Citation: 215 Mass. 96,102 N.E. 346
• Parties: GILLEN v. OCEAN ACCIDENT & GUARANTEE CORP., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 96

102 N.E. 346

GILLEN v. OCEAN ACCIDENT & GUARANTEE CORP., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913

COUNSEL

James

T. Connolly, of Boston, for appellant.

James E. McConnell, of Boston, for appellee.

OPINION

RUGG C.J.

This is an appeal under the Workmen's Compensation Act (St. 1911 c. 751). The employé, a longshoreman, was injured in the course of his employment by the Canada, Atlantic & Plant Steamship Company, which was insured under the act with the insurer. The facts are that the steamship company operates a line between Boston and Halifax, one boat arriving at and leaving Boston each week in winter, and two boats each week in the summer. The longshoremen in its employ work on an average of 15 to 20 hours weekly, and receive from it not more than $8 a week. The employé like other longshoremen, worked for many other employers during a day or group of days, and earned by the year by his services an average weekly wage of $13, which was the average weekly wage earned by other longshoremen in the same class of employment and in the same district. The insurer contends that the employé was not a regular employé of the steamship company and that his average weekly wages must be the average amount per week which during the 12 months previous to the injury was being earned by a person in the same grade, employed at the same work by the same employer. If this contention is sound the employé would be entitled to $4 per week. The employé contends, however, that inasmuch as he worked continuously at his occupation as longshoreman for different employers according to the custom of his craft, he is entitled to receive $6.50, being one-half his average weekly earnings as longshoreman from all sources.

The decision depends upon the meaning of 'average weekly wages' and the method of their ascertainment as set out in part 5, § 2, of the act. Average weekly wages are there defined to mean 'earnings of the injured employé during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employé lost more than two weeks' time during such period then the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted.' It is apparent that this sentence applies to a continuous employment throughout the year. While the language is not amplified, it refers to substantially uninterrupted work in a particular employment from which the wages of the employé are derived. The basis is the earning capacity of the workman as shown by such employment. The next clause of the section is 'Where, by reason of the shortness of the time during which the employé has been in the employment of his employer or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer.' This clause provides a method for the determination of average weekly wages, where the employé for the reasons stated has not been in the service for a year, by reference to the wages of others whose employment is substantially continuous. It affords a guide by which to...