La Rue v. Johnson

• Citation: 141 P.2d 321,47 N.M. 260,1943 -NMSC- 031
• Decision Date: 14 September 1943
• Docket Number: 4736.
• Parties: LA RUE v. JOHNSON et al.
• Court: New Mexico Supreme Court

141 P.2d 321

47 N.M. 260, 1943 -NMSC- 031

LA RUE
v.
JOHNSON et al.

No. 4736.

Supreme Court of New Mexico

September 14, 1943

Appeal from District Court, Socorro County; Lujan, Judge.

Proceeding under the Workmen's Compensation Act by Anna La Rue, compensation claimant, opposed by Edgar Johnson and Irene Johnson, doing business as Socorro Steam Laundry, employer, and the Pioneer Mutual Compensation Company, insurer, to recover for total and permanent disability. From a judgment in favor of the claimant, the employer and its insurer appeal.

Judgment affirmed as to allowance of compensation and attorney fees, but remanded with instructions to reform judgment in accordance with opinion.

Dailey & Rogers, of Albuquerque, for appellants.

Howard M. Rosenthal, of Socorro, for appellee.

BRICE, Justice.

This is a workman's compensation case, the facts of which are as follows:

The appellants Johnson owned a laundry and appellee was employed therein as an ironer and mangler from April 1 1941, to July 31, 1941, at a wage of 20¢ per hour. On and between these dates she worked six days per week, or 104 days, averaging 3.68 hours per day. The wages paid her during the time aggregated $74.43, or $4.36 per week. On July 31, 1941, she suffered an injury to her dexterous hand (which injury [141 P.2d 322] arose out of and in the course of her employment), that totally and permanently disabled her. The trial court concluded that she was entitled to compensation in the sum of $8.40 per week for 550 weeks, and entered judgment therefor, together with $400 for medical and surgical care and hospitalization; and $250 for attorney's fees to be paid to her counsel for her representation in the district court.

Appellants agree that as appellee's average weekly earnings were less than $10 per week the compensation to be paid appellee shall be "the full amount of such weekly earnings," Sec. 57-918(a), N.M.Sts. 1941, but assert that the trial court erred in its finding and conclusion that appellee's "average weekly wage" was $8.40; that in fact it was $4.36. As the average weekly wage of an injured employee is the basis upon which compensation payments are determined, the solution must be found by a construction of Sec. 57-912(m), the pertinent parts of which are as follows:

"(m) The average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments and shall be determined as follows:

"(1) Whenever the term 'wages' is used, it shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the accident, either express or implied, ***

"(2) Average weekly wages for the purpose of computing benefits provided in this Act, *** shall, except as hereinafter provided, be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or killed employee was receiving at the time of the injury, and in the following manner, to-wit:

"a. Where the employee is being paid by the month for his services under a contract of hire, the weekly wage shall be determined by multiplying the monthly wage or salary at the time of the accident, by twelve and dividing by fifty-two.

"b. Where the employee is being paid by the week for his services under a contract of hire, said weekly remuneration at the time of the accident shall be deemed to be the weekly wage for the purposes of the Act.

"c. Where the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days and fractions of days in the week during which the employee under a contract of hire was working at the time of the accident, or would have worked if the accident had not intervened; provided, however, that in no case shall the daily wage be multiplied by less than three for the purpose of determining the weekly wage.

"d. Where the employee is being paid by the hour, the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the accident, or would have worked if the accident had not intervened, to determine the daily wage; then the weekly wage shall be determined from said daily wage in the manner set forth in sub-paragraph (c) hereof; provided, that in no case shall the hourly rate be multiplied by less than seven.

******

"(3) Provided further, however, that in any case where the foregoing methods of computing the average weekly wage of the employee by reason of the nature of the employment or the fact that the injured employee has not worked a sufficient length of time to enable his earnings to be fairly computed thereunder, or has been ill or in business for himself, or where for any other reason said methods will not fairly compute the average weekly wage; in each particular case computation of the average weekly wage of said employee in such other manner and by such other method as will be based upon the facts presented fairly determine such employee's average weekly wage."

The contention of appellants is that the trial court determined the average weekly wage as provided in sub-section (2)d, heretofore quoted; whereas the use of such formula (it is said) is unfair to appellants; and therefore the average weekly wage should have been determined as provided in paragraph (3) supra.

The statutes quoted were adopted practically verbatim from the laws of Colorado, but we do not find from our research that either subsection c or d has been construed by the Supreme Court of that state. But similar statutes of other states have been construed in the following cases: Franklin v. Floria & Co., La.App., 158 So. 591; Ricks...