In re Gagnon

• Decision Date: 23 October 1917
• Citation: 228 Mass. 334,117 N.E. 321
• Parties: In re GAGNON. In re MASSACHUSETTS BONDING & INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 334

117 N.E. 321

In re GAGNON. In re MASSACHUSETTS BONDING & INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 23, 1917.

Appeal from Superior Court, Worcester County; Philip J. O'Connell, Judge.

Proceedings under the Workmen's Compensation Act by Raymond Gagnon, to obtain compensation for personal injuries, against the Stoddard Rubber Company, the employer, and the Massachusetts Bonding and Insurance Company. Compensation was awarded, and the Insurance Company appeals. Decree reversed.

Alex. H. Bullock, John M. Thayer, and Edwd. C. Thayer, all of Worcester, for appellant.

Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for employé.

RUGG, C. J.

This case involves the construction of St. 1915, c. 236. It is in these words:

‘Whenever an employé is injured under circumstances that would entitle him to compensation under the provisions of chapter seven hundred and fifty-one of the acts of the year nineteen hundred and eleven, and acts in amendment thereof and in addition thereto, if it be established that the injured employé was of such age and experience when injured that, under natural conditions, his wages would be expected to increase that fact may be taken into consideration in determining his weekly wages.’

The purpose of the Workmen's Compensation Act was to substitute, as between employé and employer in the cases to which it is applicable, for common law or statutory rights of action and grounds of liability, a system of money payments based upon the loss of wages. It was stated in the ‘Report of the Commission on Compensation for Industrial Accidents,’ at page 46 in submitting to the Legislature in 1912 a commentary on the Workmen's Compensation Act, that:

‘The basic principle of the act is that the cost of the injuries incidental to modern industry should be treated as a part of the cost of production. The act was framed with that end in view.’

Doubtless this was one of the chief causes moving the Legislature to the enactment of the statute. The act makes all payments of compensation within certain limitations depend absolutely upon the ‘average weekly wages' received by the employé. St. 1911, c. 751, part 2, §§ 6, 9, 10, and 11, as amended by St. 1914, c. 708, §§ 2, 4, 5, and 6. Those words are defined in part 5, § 2, as follows:

“Average weekly wages' shall mean the earnings of the injured employé during the period of twelve calendarmonths 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. 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; or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.'

It is plain that this definition confines the ascertainment of wages to the actual employment at the time of the injury, save in the single instance where that is impossible by reason of brief employment in a line of work unusual to the employer. This exception no doubt is almost negligible in comparison with the general scope of the act. Even this exception refers to the same class of employment in the neighborhood for the ascertainment of its standard. All our decisions touching this matter go upon that footing. Gillen's case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371; Gove's Case, 223 Mass. 187, 111 N. E. 702; Bartoni's Case, 225 Mass. 349, 114 N. E. 663. This...