New Amsterdam Casualty Co. v. Stens

288 Mass. 302 | Mass. | 1934

Pierce, J.

This is an appeal by the plaintiff, an insurance company, from a final decree dismissing a bill in equity brought to reform an agreement in respect to compensation made by and between the defendant, an employee of the Balise Motor Sales, and the plaintiff. It was heard on an agreed "statement of fact” in substance as follows: The employee, while in the employ of the Balise Motor Sales, received an injury for which the plaintiff became liable under a policy of workmen’s compensation insurance previously issued by it to the Balise Motor Sales. The defendant subsequently entered into an agreement for compensation which was computed on the theory that the average weekly wage of the employee was $30. The employee was in fact paid an average weekly wage of $30, but because of defective eyesight he "engaged and paid his father $15 each week to perform such part of the work as the defendant felt himself unable to perform.” The fact that the employee was not retaining the full $30 weekly, but was dividing it with his father, did not appear on the payroll of the employer nor was it disclosed to the insurance company at the time the agreement regarding compensation was signed, nor was it known to the employer.

The agreed facts do not state whether or not the employer knew that the employee had the assistance of his father in performing the part of the work he was employed to do, or whether or not the personality of the employee was a factor which the employer considered when it hired the employee, or whether or not the work to be done required the special skill of the employee.

In the case here presented it is clear the employee could have given his father in recognition of his assistance the whole or any part of the weekly wage agreed to be paid by the employer without affecting his right to indemnification under the compensation act, but it would seem to be equally plain that the measure of his compensation for injury would be affected if his average weekly wage were cut by a contract for assistance to the extent of the amount agreed to be paid for such assistance. As contended by the insurer, the compensation is to be determined on the basis of the net pecuniary gain to the employee and not by the gross sum contracted to be paid. State v. District Court of Sibley County, 128 Minn. 486. Roper v. Hussey-Freke, [1915] 3 K. B. 222. Compare Powers’s Case, 275 Mass. 515; Thibeault v. General Outdoor Advertising Co. Inc. 114 Conn. 410.

We think, however, the bill of complaint was dismissed rightly. The employee’s statement to the insurer that "My weekly salary was thirty ($30.00) dollars” was literally true. There is nothing in the agreed facts which would warrant an inference that he knew that the weekly wage, under the compensation act, was to be determined on the basis of net gain to the employee, nor is there any agreement that the employee intentionally misstated his average' weekly wage, computed under the compensation act, for the purpose of determining the action of the insurer to its harm. In a word, the employee was not guilty of fraud. There was clearly no mutual mistake.

Decree affirmed with costs.