regularly receives twenty cents an hour wages, but on an extraordinary occasion, in which he is injured, is paid one dollar an hour, the extraordinary remuneration should be disregarded in fixing his average earnings. Where, in a New York case, it appeared that a motorman on a street car had been shifted to a new run a month

46

ployer in which he was engaged when injured, are the only earnings or wages that shall be considered in computing average monthly wages. No additional source of income or earning power shall be considered. 'Average monthly earnings' shall have the same meaning as 'average monthly wages.'" Nev. Indus. Com., 1913-14, p. 21.

Rep.

Where the deceased workman had worked for his employer only a short time, his average annual earnings were computed from the amount paid other employés in the same or similar employment who had worked substantially a whole year. Nycek v. C. Reiss Coal Co., Bul. Wis. Indus. Com. 1912-13, p. 23. Average wages in grade and personal element. “Having found that a man has a particular grade and what are the average wages in that grade, there is no obligation to adopt those average wages as the basis of compensation. The personal element then comes in. It will still be open to consider whether the individual workman is an average man, or below an average man. This must be so where men in a particular grade are employed in piece work. You cannot reject evidence of the skill and efficiency of the individual workman; where payment is at so much an hour for every man in a particular grade, the skill and efficiency of the individual may perhaps be disregarded, though I am not prepared to say that the age and the habits of the individual may not have such an influence upon his chance of employment as to deserve consideration." Cozens-Hardy, M. R., in Perry v. Wright (1909) 1 B. W. C. C. 354. Where the wages of a casual dock laborer averaged £2 a week for a year, whereas the average wages of the whole class of dock laborers averaged only 25s. a week, the judge should have considered this element in awarding compensation, instead of merely allowing him half of the class average wage. Snell v. Bristol Corporation (1914) 7 B. W. C. C. 236, C. A. Where a casual laborer's compensation was based upon his average weekly earnings under the proviso of the schedule, disregarding the fact that when working for other employers he showed himself able to earn more than the average, such personal qualifications must be taken into consideration. Cue v. Port of London Authority (1914) 7 B. W. C. C. 447, C. A. Where a county judge, holding casual and regular shipwrights to be distinct grades, awarded for the death of a casual shipwright the average wages of a good workman of that grade, there being no evidence as to whether the particular workman was above or below the average, his award was without error. Cain v. Leyland & Co., Ltd. (1909) 1 B. W. C. C. 351, 368, C. A.

46 Mazzini v. Pacific Coast Ry., 2 Cal. I. A. C. Dec. 962.

47

before the accident, at an increase per hour in wages, and there was evidence that it was customary to pay motormen in the service as long as the claimant had been the rate he was getting in the later employment, his wages were to be taken as of the date of the injury, and not those earned during the entire preceding year, part of which were earned on the other run. Under the California Act, the weekly payments of permanent partial disability indemnity in case of a minor are to be assessed at the probable earnings of the minor after reaching the age of twenty-one, in the occupation in which he was employed at the time of his injury, in the usual course of promotion, if he had not been injured. Where at the time of the death of a minor iron worker he had been promised that, if he showed greater proficiency in operating a riveter, he would in two months receive forty cents an hour, and it is shown that this is five cents an hour greater than the average adult wage for the same kind of work, the average adult wage must be the basis of computation, and not possible earnings for unusual efficiency.** In New Jersey, compensation for the death of an employé should be calculated on the wages being received by him at the time of his death, and not limited to his average wages.50

48

The "average weekly earnings," sometimes the proper basis of the award, signify the average earnings which the workman would

51

47 Fredenburg v. Empire United Rys., Inc., 168 App. Div. 618, 154 N. Y. Supp. 351.

48 (Wk. Comp., etc., Act, § 17, [c]) Collins v. York Bradford Co., Inc., 2 Cal. I. A. C. Dec. 220.

49 Mashburn v. California-Portland Cement Co., 2 Cal. I. A. C. Dec. 613.

50 (P. L. 1911, p. 137, § 2, par. 12) Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law, 688, 94 Atl. 309, following Huyett v. Pennsylvania R. R. Co., 86 N. J. Law, 683, 92 Atl. 58, stating such to be the law, though injustice

$1 (Wk. Comp. Act, pt. 2, § 11) Linsteadt v. Louis Sands Salt & Lumber Co. (Mich.) 157 N. W. 64.

HON.COMP.-38

53

make in a normal week if he were employed on the terms prevailing before and up to the time of the accident,52 and where he has been regularly employed at the same employment for a longer period than one year, are to be determined by dividing the aggregate amount of his earnings for the year preceding his death by fifty-two. Periods of slackness in the trade, which are incidental to the trade, causing a workman's idleness a part of the year, must be taken into account in figuring his average weekly earnings." In some states, where he has been continuously employed for a considerable period of time, but not for an entire year, his average. weekly wage is determined by dividing the aggregate amount of his earnings by the number of weeks he was employed.55

54

result to the employer when the employé is paid by the piece and his earnings are unusually high at the time of injury, and to the employé when his earnings are unusually low; the correcting of the defect being for the Legislature, not for the court.

52 Bailey v. Kenworthy (1909) 1 B. W. C. C. 351, 371, C. A.

In Silveria v. Connecticut Quarries Co., 1 Conn. Comp. Dec. 509, where, though the deceased workman had earned an average weekly wage of $12.05 during the 13 weeks preceding the injury, he had been irregularly employed before that, and had not done or tried to obtain work during these periods of idleness, the commissioner held his average weekly earnings should be computed by dividing the total amount earned during the twenty-six weeks preceding the injury by 18, the number of weeks during some part of which he had worked. (Wk. Comp. Act, pt. B, § 13.) In Cheski v. Connecticut Mills Co., 1 Conn. Comp. Dec. 213, where an employé had worked eighteen days out of four weeks, his average weekly wages were computed by dividing the total amount earned by four.

Workmen's Compensation Act of New York, § 15, subd. 3. provides that compensation for loss of an eye shall not be less than $5 a week, except that "if the employé's wages at the time of the injury is less than $5 per week he shall receive his full weekly wages." "Weekly wages" in this section does not mean average weekly wages as defined by section 14 to be 1/52 of his average annual earnings, but means the wages actually received, as defined by section 3, subd. 9. Morey v. Worden, 2 N. Y. St. Dep. Rep. 494.

53 Andrewjeski v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684; In re Anna King, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 37. See § 151, ante. 54 White v. Wiseman (1912) 5 B. W. C. C. 654, C. A.

55 In re Elida Baird, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 28.

The provision of the New Jersey Act with relation to weekly wages being taken to be six times the average daily earnings for a working day of ordinary length, excluding overtime, is confined to cases where the rate of wages is fixed by the output of the employé, and does not apply where he receives a fixed wage per day.56 It has been held that a letter written by the authorized agent of the employer, stating that the employé's wages were $11.94 a week, together with evidence that he worked seven days a week at $1.75 a day, authorized a finding that his weekly wage was $11.94.57

"Daily earnings," or wages, when made the basis on which to compute the amount of compensation, mean that which would be. earned by working for the ordinary number of hours where the employment is by the hour; no deduction being made by reason of enforced idleness during some of these hours, and nothing being added because on some days the employé works overtime.58

§ 154. Federal Act

"The same pay as if he continued to be employed," within the provision of the original federal Act authorizing the award of such pay as compensation, and yet in force as to injuries prior to the Act of 1916, means the same rate being paid at the time of the injury.59 It includes allowance for subsistence, or in lieu of subsistence, when the same forms a part of the regular remuneration or earnings, but not otherwise. It includes the right to any in

60

56 Conners v. Public Service Electric Co. (N. J. Sup. 1916) 97 Atl. 792. 57 Id.

58 (P. L. 1913, p. 313) Smolenski v. Eastern Coal Dock Co., 87 N. J. Law, 26, 93 Atl. 85. See, also, § 151, ante.

59 In re Sellos, Op. Sol. Dept. of L. 387.

60 In re Lanzy, Op. Sol. Dept. of L. 373.

61 When lodging and subsistence are not reckoned as a part of the employé's earnings, such employé is not entitled to commutation of subsistence

crease in the pay attached to the injured person's position, made

62

after the injury and during incapacity. The question of fact as to what is the "same pay" is ordinarily better determined by the administrative and accounting officers of the establishment in which he is employed than by the Secretary of Commerce and Labor.63

in fixing the rate of payment during incapacity. In re Hurtt, Op. Sol. Dept. of L. 384.

62 In re Hamilton, Op. Sol. Dept. of L. 379.

68 In re Clark, Op. Sol. Dept. of L. 381.