Langheld v. Fed. Shipbldg. & Dry Dock Co.

• Decision Date: 20 January 1947
• Citation: 51 A.2d 533
• Parties: LANGHELD v. FEDERAL SHIPBUILDING & DRY DOCK CO.
• Court: New Jersey Court of Common Pleas

51 A.2d 533

LANGHELD

v.FEDERAL SHIPBUILDING & DRY DOCK CO.

Court of Common Pleas of New Jersey, Essex County.

Jan. 20, 1947.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Mary E. Langheld, employee, opposed by the Federal Shipbuilding & Dry Dock Company, employer. From an award of compensation by the Workmen's Compensation Bureau, the employer appeals.

Award affirmed.

David Z. Jeselsohn and Louis C. Jacobson, both of Newark, for petitioner-appellee.

Stryker, Tams & Horner, of Newark, Thomas Moloney, of Orange, and John J. Monigan, of Newark, for respondent-appellant.

FLANNAGAN, Judge.

The petitioner was employed as a part-time canteen worker at an hourly rate. She was injured in the course of the performance of the duties of her employment, and it is conceded that she is entitled to compensation for her injury. The only difference arising between the contesting parties on this appeal is as to the method of computing the petitioner's ‘daily wage’ rate under the provisions of the statute, R.S. 34:15-37, N.J.S.A., which provides that 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.’

It is said that the words ‘ordinary day in the character of the work involved’ refer to employees in general doing work of the same character in the same plant, rather than to the ordinary day of the particular employee who has sustained injury. I am of the opinion that the statute contemplates compensation on the basis of the earnings of the employee herself, rather than upon that of herself and other employees combined. If this be true then the issue resolves itself into a question of fact, to wit, what was the customary number of working hours constituting an ordinary day in the petitioner's experience during the period of her employment with respondent?

The petitioner was hired in the beginning of November, 1942, and worked for respondent until November 19, 1943, when her injury occurred, a period of substantially one year.

She was hired as a part-time canteen worker for four hours per day at 65 1/2 cents per hour. So that the initial period of her association with respondent was on the basis of four hours work per day. Her hourly rate continued the same throughout the entire period of her employment regardless of the nature of the duties performed.

During the concluding period of her employment she was likewise employed on the basis of four hours per day of service, and was working as a canteen worker, although she had in the intervening period worked for a time as a cafeteria worker.

The unusual and extraordinary may, by sufficient repetition, recurrence, or period involved, become the customary and ordinary.

The question is whether petitioner, having contracted,...