In re Bartoni

• Decision Date: 15 December 1916
• Citation: 225 Mass. 349,114 N.E. 663
• Parties: In re BARTONI. Appeal of EMPLOYERS' LIABILITY ASSUR. CORP., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 349

114 N.E. 663

In re BARTONI. Appeal of EMPLOYERS' LIABILITY ASSUR. CORP., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 15, 1916.

Appeal from Superior Court, Suffolk County.

Proceeding under Workmen's Compensation Act by Joseph Bartoni, administrator, for compensation for the death of John Bartoni, opposed by the Rockport Granite Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. Compensation was awarded, and from the decree of the superior court, the insurer appeals. Reversed, and case remanded to the Industrial Accident Board, with leave to move for further hearing and for the exercise of the Board's supervisory power.Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellant.

J. M. Marshall, of Gloucester, for appellee.

RUGG, C. J.

One question presented on this record is the meaning of ‘average weekly wages' in the Workmen's Compensation Act. The pertinent facts in that connection are that the deceased, who received a mortal injury arising out of and in the course of his employment, was a laborer at the granite works of the subscriber. During the year preceding his injury he had not worked for a period of 12.97 weeks, because the weather did not permit. He worked exclusively for the subscriber, and when he did not work it was because of the weather and for no other reason. Since he was a laborer in granite works, the assumption seems necessary that the inclement weather, which was the cause for his not working for 12.97 weeks, was a cause common to the employment and not peculiar to the employé. His total earnings for the year were $449.76. The governing words are found in St. 1911, c. 751, pt. 5, § 2:

‘'Average weekly wages' shall mean the 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.’

This definition is significantly unlike any provision in the English act. It there is provided that

‘average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated.’ 6 Edward VII, c. 58, Schedule I, (2)(a).

It was pointed out in Gove's Case, 223 Mass. 187, 192 to 194, 111 N. E. 702, that the measure of compensation provided by our act is quite different from that established by the English act. Therefore, decisions of the English courts can throw no light upon the point we have to decide. That portion of the sentence in the definition of average weekly wages following that just quoted, and relating to continuous work of a specified kind for different employers was under consideration in Gillen's Case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371, but it affords no assistance in deciding the case at bar.

The broad question, then, is the meaning of the words ‘average weekly wages' in the act as applied to kinds of employment where it is a necessary condition that by reason of inclement weather the employés should lose in each year a substantial aggregate of time. When our Workmen's Compensation Act was adopted it was obvious that the lack of accurate definition of average weekly wage in the English statute had given rise to considerable litigation. The English act was uncertain in this regard. It would have been an invitation to continued actions in the courts to have imported its words into our act. Doubtless those who framed our act were aware of this embarrassment in the administration of the English act. In establishing a new definition of ‘average weekly wages' for our act it well may have been intended to obviate many of the difficulties which had been developed by experience under the English act. See report of Commission on Compensation for Industrial Accidents, 1912, page 53. The definition (part 5, § 2) in effect means that where a man works regularly for every working day for 12 calendar months preceding his injury, then his total wages received during that time are to be divided by 52 weeks, in order to ascertain his average weekly wage. The same rule is followed when no more than 2 weeks are lost by the employé during that 12 months. Thus wages are averaged for a year for such an employé. But where more than 2 weeks are lost during the 12 calendar months preceding the injury, then the ‘average weekly wages,’ on which the compensation payable under the act is based, is found in a different way. It is ascertained simply by dividing the total amount received as wages during the 12 months by the weeks during which labor actually is rendered. That is not an average weekly wage for a year. It is an arbitrary definition of average weekly wage. In a sense it is an artificial average. But it is the standard established by the act. Whatever apparent confusion there may be in the definition arises from a preconception that the period over which the wages are to be divided must be the same in all cases in order to obtain an average. But that is not the theory of the definition. Whatever criticism may be made of the definition as thus interpreted, it at least has the merit of simplicity. It is explicit and readily understood. It is applicable to numerous craftsmen who are liable to lose much time during any period of 12 calendar months because of bad weather. It may have been thought by the Legislature that in case of injury to them the compensation payable under the act should be based on the wages which they receive when actually at work, rather than upon what would be a weekly average of their wages spread over the whole year, including the days when they do not work as well as the days when they do work.

It has been argued that the words ‘time so lost’ in the definition do not describe time during which...