Rue v. Johnson

• Citation: 47 N.M. 260,141 P.2d 321
• Decision Date: 14 September 1943
• Docket Number: No. 4736.,4736.
• Parties: LA RUEv.JOHNSON et al.
• Court: Supreme Court of New Mexico

47 N.M. 260

141 P.2d 321

LA RUE

v.JOHNSON et al.

No. 4736.

Supreme Court of New Mexico.

Sept. 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.

The right to contest question of total and permanent disability is statutory, and exists even though judgment awarding compensation for total and permanent disability is absolute in form. 1941 Comp. § 57-916.

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 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 v. Crowell & Spencer Lbr. Co., La. App., 189 So. 466; Modin v. City Land Co., 189 Minn. 517, 520, 250 N.W. 73; Ferch v. Great Atlantic & Pacific Tea Co., 208 Minn. 9, 292 N.W. 424; Bennett v. Fertig, 162 A. 95, 10 N.J.Misc. 1021; Jensen v. Atlantic Refining Co., 262 Pa. 374, 105 A. 545; Romig v. Champion, etc., Co., 315 Pa. 97, 172 A. 293; Texas Employers Ins. Ass'n v. Thrash, Tex.Civ.App., 136 S.W.2d 905; Texas Employers' Ins. Ass'n v. Peppers, Tex.Civ.App., 133 S.W.2d 165; American Smelting & Refining Co. v. Industrial Comm., 92 Utah 444, 69 P.2d 271; Royal Canning Corp. v. Industrial Comm., 101 Utah 323, 121 P.2d 406; Shuttleworth v. Interstate Power Co., 217 Iowa 398, 251 N.W. 727; Truax-Traer Coal Co. v. Industrial Comm., 362 Ill. 75, 199 N.E. 113; Chatfield v. Jellico Coal Min. Co., 205 Ky. 415, 265 S.W. 943; Black Mountain Corp. v. Adkins, 280 Ky. 617, 133 S.W.2d 900; Benito Min. Co. v. Girdner, 271 Ky. 87, 111 S.W.2d 571; Baker v. Western Power & Light Co., 147 Kan. 571, 78 P.2d 36; Morris v. Garden City Co., 144 Kan. 790, 62 P.2d 920.

In none of these cases has a similar formula been rejected upon a theory of unfairness.

The Louisiana statute, Act No. 20 of 1914, is similar to that of New Mexico. It was held in Franklin v. Floria & Co., supra, that although the employee had not worked so much as eight hours (a full day) during any one day for sometime preceding the date of his injury, yet he was entitled to compensation based on a weekly wage of six days of eight hours each. The court said : “The rule is well settled that, whether the claimant had actually worked fewer than the normal number of hours customary in the particular kind of work involved, nevertheless the daily rate of pay, as contemplated by the act, is obtained by multiplying the hourly rate by the number of hours in the normal working day. There is evidence, which is not rebutted, that eight hours is considered a normal working day and six days is a normal working week for longshoremen and stevedores and we, therefore, conclude that the average weekly wage of Franklin, for the purpose of fixing compensation, must be presumed to be six times $5.20, or $31.20. The compensation is, therefore, the maximum, or $20, per week.”

The Minnesota statute provides “that the weekly wage shall not be less than five and one-half times the daily wage.” Minn. St.1927, § 4325. In Modin v. City Land Co., supra, the employee worked only three days per week. It was held that his weekly wage was 5 1/2 times $4 (his daily wage). In Ferch v. Great Atlantic & Pacific Tea Co., supra, the employee worked Saturdays only in a store that was usually operated six days a week. He earned 38¢ an hour and normally worked nine hours a day, earning $3.42. It was held that in determining his weekly wage for compensation the $3.42 should be multiplied by six.

The laws of New Jersey, N.J.S.A. 34:15-37, provide that five days shall constitute a minimum week, for compensation purposes, and in Bennett v. Fertig, supra, it was held that although the employee had worked only two days a week for $1.50 per day, that his weekly wage for compensation was five times the daily wage, or $7.50 per week.

The laws of Pennsylvania, 77 P.S. § 582, provide that an employee's weekly wage shall be taken to be 5 1/2 times his average earnings at such rate for a working day of ordinary length. In Jensen v. Atlantic Refining Co., supra, the employee worked for a period of thirty-eight calendar days during which time he lost eight days on account of sickness. It was held that his weekly wage should be determined by multiplying his daily wage of $3.39 by 5 1/2, the usual number of days worked in a week, notwithstanding he had worked a less number of days.

In American Smelting & Refining Co. v. Industrial Commission, supra, it was held that although the employee had worked but five days a week, that under the statute, Rev.St.1933, 42-1-70, which provides that a full time basis shall be used for determining the weekly wage for compensation purposes, that the employee's...