247 Mass. 80 | Mass. | 1923
The employee received an electric shock, causing immediate death, while inspecting and oiling the passenger elevator machinery in the Burgess Lang Building, located at the corner of King Street and Middlesex Street in Lowell. The building was owned by the Lowell Building
For about a year before the accident, Quebec, who was hired by Harrington as a. general repair man, did work in both buildings. In that of the trust he devoted about one third of his time, under the general direction of Harrington, daily inspecting and oiling the elevators, and doing the carpenter work, glazing, and any small pipe work that did not require a plumber. He would then go back to the warehouse, attend to repair work around there, and, if all his time was not so taken up, would go out on his old job as chauffeur. Quebec was paid $25 per week: and signed two pay slips, one acknowledging the receipt for a week’s wages of $10 from the Lowell Building Trust, and the other of $15 from the Bay State Storage and Warehouse Company. The sole issue before us is whether the average weekly wages, on which the compensation of the dependent widow is to be based, was $10, which was paid by the Lowell Building Trust, for whom the employee was working at the time of the accident, or $25, the total wage received by him from both organizations. G. L. c. 152, § 31.
The corporation and the trust were distinct legal enti
The general English law enacted in 1906 (6 Edw. VII, c. 58) on which our act is largely modeled, contains a clause (sch. 1, § 2 b) which expressly provides that “ where the workman had entered into concurrent. contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.” Such a provision would cover the case at bar. But the commission which framed the Massachusetts act, although they undoubtedly had this statute before them, did not embody it in form or substance. In the absence of such a clause, the dependent argues that the award of the Industrial Accident Board can be sustained under the clause of § 1 (1) of G. L. c. 152, which provides: “ Where, by reason of . . . the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by ... a person in the same grade employed in the same class of employment and in the same district.” This clause was before the court for construction in King’s Case, 234 Mass. 137, which governs the case at bar. King was employed by the Atlantic Printing Company from Monday to Saturday noon at a weekly wage of $28. For a year he had worked each Saturday night for the Globe Newspaper Company, at $9.20 for the night’s work, and was fatally injured while working for that company. It was held that
In the Report of the Commission on Compensation for Industrial Accidents, submitting to the Legislature a commentary on the Massachusetts law, it was stated (page 46): “ The basic principle of the act is that the cost of injuries incidental to modern industry should be treated as a part of the cost of production. The act was framed with that end in view. ” In Gagnon’s Case, 228 Mass. 334, where the meaning of “ average weekly wages ” was considered, it was said (page 337): “ It is plain that this definition confines the ascertainment of wages to the actual employment at the time of the injury, save in the single instance where that is impossible by reason of brief employment in a line of work unusual to the employer. . . . This definition and the decisions rendered respecting it follow directly the ‘ basic principle of the act ’ as above stated, to the effect that' the cost of injuries incidental to modern industry ’ should be regarded as a part of the cost of production. The average weekly wages is throughout the act ascertainable only by
It follows that the decree must be reversed, and the case remanded to the board with directions to dismiss the claim against the Bay State Storage and Warehouse Company, and to make an award in the claim against the Lowell Building Trust based upon the wages of $10 per week paid by said trust to the employee.
Ordered accordingly.