
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Thomas Simpson, petitioner, v. Elwood Vertty, respondent.
    Loss of Fingers by Circular Saw — Employment at Time of Accident Disputed — -Rate of Wages to be Determined. — Respondent Claims Previous Discharge of Employe.
    
      Mr. Charles A. Malloy, for the petitioner.
    
      Mr. Hyman Herr, for the respondent.
   ' This is a case coming up for determination under the provisión of the Workmen’s Compensation act, in which the petitioner seeks compensation for 'temporary disability and permanent injury resulting from the amputation of two1 fingers by a circular saw. The fact of the accident and resulting injury are not disputed. The questions to- be decided are: Was the petitioner in the employ of the respondent at the time of the occurrence, and, if so-, what was his rate of wage?

With respect to the former question, there can be no- doubt that the petitioner, Mr. Simpson* entered into- employment for Mr. Vertty. The fact that someone else met the petitioner at the train, and had the preliminary interview with him, is irrelevant, since upon reaching the farm Mr; Vertty retained him, and an agreement was effected for $20 a month with lodging and board. This agreement seems to- have been tentative for one month, at the expiration of which time Mr. Vertty expressed his. dissatisfaction with the- results, and directed the- petitioner to leave. This Mr. Simpson was disinclined to do. The respondent would have it appear that the petitioner had been duly and fully discharged. The petitioner wo-uld have us believe he had not been actually discharged but retained in the employment. On the stand the wife of the respondent rather reluctantly admitted that the petitioner had been allowed to remain, to render such sendee as he was able to perform in exchange for board and lodging, no- money value being placed on this remuneration. Ero-m the' general trend o-f all the testimony, I am forced to the conclusion that this is the correct version of the situation, and, if so, the act establishes the value of the board and lodging at $5 per week, whieh must be considered the wage rate in this case.

It is argued by respondent’s attorney that this injury occurred as the direct-result of Mr. Simpsone disobedience of orders to keep away from the saw. In view of the case of Kolaszynski v. Klie, 102 Atl. Rep. 5, the validity of this defense is of doubtful merit. However, considering the conflicting testimony with regard to Mr. Simpson’s presence at -the place where the wood sawing was being done, it seems uncertain as to just what was said, and what attitude the respondent took. He may have given peremptory orders for the petitioner to go elsewhere, and if there was testimony indicating this it was by the respondent’s wife or her brother, and hence not entirely disinterested. Enrtbermore, it is to be noted that, while this respondent is nnable to read or write, he is of rather exceptional personality, impressing one as being unusually forceful, and I cannot escape the conclusion that had he actually giren an order he would hare been satisfied with nothing short of complete observance thereof. I incline to the belief that his address to the petitioner was more in the line of an admonition, and that since the petitioner’s contract of employment contemplated his performing about the farm such service as he could render, he did not take himself outside the scope of his employment by assisting at the wood pile.

The statute provides that compensation shall be equal to the wage, if same be below $8 per week. The compensation rate will therefore he fire dollars ($5) per week in this case. An order will be drawn up for compensation for the temporary disability and permanent injury experienced.

W. E. Stubbs, Deputy Commissioner of Compensation.  