Nat'l Pressure Cooker Co. v. Indus. Comm'n

• Citation: 24 N.W.2d 697,249 Wis. 381
• Parties: NATIONAL PRESSURE COOKER CO. et al. v. INDUSTRIAL COMMISSION et al.
• Decision Date: 22 October 1946
• Court: United States State Supreme Court of Wisconsin

249 Wis. 381

24 N.W.2d 697

NATIONAL PRESSURE COOKER CO. et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Oct. 22, 1946.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

Action by appellants National Pressure Cooker Company and Employers Mutual Liability Insurance Company to review an order of the industrial commission awarding respondent Betty Severson compensation in excess of that claimed by appellants to be due her. This appeal is from a judgment affirming the commission's award.

Respondent Severson was employed by the appellant National Pressure Cooker Company from April 5 to June 29, 1945, when she was injured. During the period of her employment the company was bound by a union contract which in part provided:

‘Eight hours shall constitute a regular working day and 40 hours a regular work week for all employees. Time and a half shall be paid for all overtime over the specified eight hours in any one day and over the specified 40 hours worked in any work week.'

The company was engaged in both intrastate and interstate commerce. Prior to the passage of the federal Wage and Hour Act^* in 1938, it paid straight time for hours worked beyond 40 hours a week. After that it operated for some time on a 40-hour week basis. In October, 1941 it went on a 48-hour week schedule which was in effect at the time of the injury. During the time of her employment the respondent Severson was paid 55¢ per hour for the first 40 hours and 82 1/2¢ an hour for the additional eight hours worked each week. The 48-hour week was divided into six 8-hour days.

Wilkie, Toebaas, Hart & Jackman, of Madison, for appellant.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent.

RECTOR, Justice.

The only question in this case concerns the amount of compensation to which respondent Severson is entitled. The company contends that her weekly benefits should have been computed on an average weekly earning of $26.40, whereas they were computed on the basis of an average weekly earning of $28.60. The difference in the two figures exists because of the difference in the rate at which the weekly compensation is figured.

The statute relating to the computation of earnings, so far as material, reads:

102.11(1)(a) ‘Daily earnings shall mean the daily earnings of the employe at the time of the injury in the employment in which he was then engaged. In determining daily earnings under this paragraph, overtime shall not be considered. * * * The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of his injury.'

The company contends that average weekly earnings should be figured by computing the compensation for an 8-hour day at 55¢ an hour and multiplying this figure by six, the number of 8-hour days in the work week. The commission included in its computation the extra rate of pay required by the federal Wage and Hour Act and by the union contract to which reference has been made. Thus, it figured...