Smolenski v. Eastern Coal Dock Co.

The opinion of the court was delivered by Swayze, J. The statute enacts (Pamph. L. 1913, p. 313) that the term "wages” shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident; that where the rate of wages is fixed by the output of the employe, his weekly wages shall be taken to be six times his average daily earnings for a working day of ordinary length, excluding [28] overtime; and that this rate of weekly wages shall he calculated by dividing the total value of the employe’s output during the actual number of full working days during the -preceding six months by the number of days the workman was actually employed. Fone of these provisions are precisely applicable to this case. The reference to output naturally points to piece work, and it would be difficult to hold that work by the hour was piece work, since the earnings by the hour are fixed. The earnings by output are not fixed, but depend upon the capacity, success or good fortune of the worker. The language does, however, indicate that in a case where weekty wages are not fixed, they shall be taken to be six times the daily wages, and that the daily wages shall be the wages for a working day of ordinary length, excluding overtime. We think it may fairly be held that the legislature meant that the daily wages should be taken to be what would be earned by working for the ordinary number of hours and that the employe was not to lose by reason of enforced idleness during some of those hours, nor to gain because on some days he worked overtime. Wages, the legislature said, must be construed to be the money rate at which the services were recompensed. What is to be considered is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact realized for the whole time or not. We think that in an employment and a 'community where the regular working week was six days of ten hours each and the workman was paid twenty-five cents an hour the natural conclusion of most men, if they tried to reduce the hourly rate to- a weekly rate, would be that the weekly rate was $15. The truth is there is no weekly rate, but we are forced by the statute to fix one in order to determine the compensation to which the workman or his dependents are entitled. Under this compulsion we can think of no better method. There was evidence justifying the trial judge in finding that ten hours was a working day of ordinary length. ' We find no error and the judgment is affirmed, with costs.