Maver v. Dwelling Managers Co.

• Decision Date: 10 April 1961
• Docket Number: No. A--93,A--93
• Citation: 170 A.2d 35,34 N.J. 440
• Parties: Marjorie MAVER, Petitioner-Appellant, v. DWELLING MANAGERS CO., and Fidelity & Casualty Co. of New York, respondents-Respondents.
• Court: New Jersey Supreme Court

Page 440

34 N.J. 440

170 A.2d 35

Marjorie MAVER, Petitioner-Appellant, v. DWELLING MANAGERS CO., and Fidelity & Casualty Co. of New York, respondents-Respondents.

No. A--93.

Supreme Court of New Jersey.

Argued Feb. 21, 1961.

Decided April 10, 1961.

Seymour B. Jacobs, Newark, for petitioner-appellant (Jacob L. Balk, Newark, attorney; Seymour B. Jacobs, Newark, of counsel and on the brief).

Isidor Kalisch, Newark, for respondents-respondents.

The opinion of the court was delivered by

WEINTRAUB, C.J.

The principal issue is the amount of workmen's compensation payable to the widow of the deceased employee. The widow and the decedent were jointly employed as superintendents of an apartment house, receiving $130 per month, an apartment valued at $80 per month, and gas, electric, and telephone service worth the further sum of $10 per month. The decedent was also regularly employed elsewhere as a boilermaker, at which employment he earned $4.46 per hour, working a 35-hour week. The deputy director aggregated the earnings of the husband in both employments and awarded the maximum rate of $40 per week. The County Court considered solely the husband's Pro rata share of the remuneration received from the respondent-employer and awarded the minimum rate of $10. The Appellate Division affirmed the County Court, 63 N.J.Super. 304, 164 A.2d 643, (App.Div.1960), and we granted certification, 34 N.J. 64, 167 A.2d 54 (1961).

The Appellate Division held decedent's employment as superintendent was fulltime and reached its ultimate conclusion upon that premise. We are unable to accept the premise. The couple were initially engaged by the former owner of the apartment house, and the evidence is uncontradicted that the employment of decedent as superintendent was then understood to be part-time only. Respondent continued the employment of the couple, and its representative acknowledged he knew decedent had another regular job. After the fatal accident, the witness offered to continue the basic arrangement if the son, age 34, would assume the role theretofore performed by his father, to which the parties agreed, and again respondent understood the son would, as in the case of the father, continue full-time work elsewhere. Hence we think it clear the employment here was part-time.

I.

The statute nowhere provides for compensation benefits limited or geared to part-time earnings. On the contrary the central theme of R.S. 34:15--37, as amended, N.J.S.A., is that the earnings paid shall be translated into a 'weekly wage.' Mahoney v. Nitroform Co., 20 N.J. 499, 509, 120 A.2d 454 (1956). It provides that where the rate is fixed by the output of the employee, 'the daily wage' shall be calculated by dividing the total earnings for the preceding six months by 'the number of days the workman was actually employed'; and that where the rate is fixed by the hour, 'the daily wage' shall be computed 'by multiplying the hourly rate by the Customary number of working hours Constituting an ordinary day in the character of the work involved.' The statute then requires 'the daily wage' to be multiplied '(i)n any case * * * by five, or if the employee worked a greater proportion of the week regularly, then by five and one-half, six, six and one-half or seven, according to the Customary number of working days constituting An ordinary week in the character of the work involved,' adding that 'Five days shall constitute a minimum week.' (Emphasis added.) The compensation benefits are then determined under N.J.S.A. 34:15--12 and 13 upon the basis of the weekly wage. Hence there is no warrant for accepting as the 'weekly wage' such sum as may have been paid During a week when the period of actual work was less than in the customary workweek for work of the character involved.

The reason for the statutory plan is clear. The workmen's compensation act substituted a finite schedule of liability for the vagaries of a common law action. The employer is liable without fault, but even if at fault, he may pay much less than a damage award at law. The object of the statute is to compensate for the inroad upon the full-time earning capacity of the victim of industrial mishap upon an adjusted schedule of benefits, and of course a part-time job may be the setting of the destruction of an earning unit capable of full-time work, as in the case before us. At a glance, it may seem harsh to impose the liability of a full-time employer upon a part-time employer and its carrier. This is but superficially so, since the employer pays premiums only upon his actual payroll figure; and as to the carrier which receives premiums on that limited basis the compensating factor is that the chance of injury is reduced by the brevity of the actual period of work. If a man is employed for 5 hours rather than 40, the likelihood of injury is but one-eighth of what it would be in a full week of work.

Hence the legislative decision was to deal with a constructed weekly wage rather than the actual wage paid during a week for part-time work, and this is the view of the statute settled by engelbretson v. American Stores, 49 N.J.Super. 19, 139 A.2d 10 (App.Div.1957), affirmed on opinion below, 26 N.J. 106, 139 A.2d 19 (1958), and Knight v. Cohen, 32 N.J. 497, 161 A.2d 473 (1960).

II.

We come next to the problem of multiple employments, and specifically to the question whether the pay from all employments should be aggregated or whether the weekly rate should be found on the basis of the rate of pay for the work in which the accident occurred.

A distinction may be drawn at once between employments which are Joint and employments which are concurrent but independent. Where an employee's full time is jointly engaged by a number of employers, the total remuneration received from all satisfies the statutory objective. Cser v. Silverman, 46 N.J.Super 599, 135 A.2d 52 (Cty.Ct.1957), affirmed, 50 N.J.Super. 125, 141 A.2d 61 (App.Div.1958); see Scott v. Public Service Interstate Transp. Co., 6 N.J.Super. 226, 70 A.2d 882 (App.Div.1950). But employments which are independent present a different situation.

Some jurisdictions distinguish between separate employments which are similar and separate employments which are dissimilar, aggregation of pay being permitted in the former but not in the latter. 2 Larson, Workmen's Compensation § 60.31, p. 78 (1952). Where the employments are similar, aggregation would yield the same result which would be reached if our statutory method described above were applied to the pay rate of the employment of injury alone, at least if the total hours of work did not exceed the ordinary work-week and the rates of pay were not significantly diverse. The difficult situation is the one before us, where the pay rates are distinctly different, and where, in addition, the aggregated pay would exceed the remuneration for the ordinary full-week in each occupation.

Where the separate employments are dissimilar, the carrier or employee may profit at the expense of the other if the remunerations are aggregated. For example, if the employee is injured in the employment of higher rate of pay, it is to his advantage to seek a weekly wage based on the higher unit rate, whereas the carrier would gain if the...