Opinion
File No. 8155.
Opinion filed December 30, 1938.
Workmen's Compensation.
Where compensation claimant had been employed by construction company for a full year prior to time of accident, but employment was such that it was the custom to operate for only a part of the working days each year, claimant's compensation was required to be computed under provision of Workmen's Compensation Act fixing number of days work as basis for computing compensation, and not under provision fixing annual earnings as basis for computing compensation (Rev. Code 1919, § 9461, subds. 1, 5).
Appeal from Circuit Court, Minnehaha County; HON. JOHN T. MEDIN, Judge.
Proceeding under the Workmen's Compensation Act by William R. Lang, claimant, opposed by the T.J. Tobin Construction Company, a copartnership consisting of T.J. Tobin and Ed Chase, employer, and the South Dakota Employers Protective Association, insurer. From an adverse judgment and order, the employer and insurer appeal.
Reversed.
Caldwell Burns, of Sioux Falls, for Appellants.
Warren Eggen, of DeSmet, for Respondent.
The facts in this case bring it within the rule announced in Humphreys v. Construction Co., 66 S.D. 112, 279 N.W. 246. It appears that the respondent, Lang, had been employed by the defendant construction company a full year prior to the time of the accident, but under the rule laid down in the Humphreys Case, this fact does not determine the applicable statute, if the employment is such that it is the custom to operate for only a part of the working days each year. The Industrial Commissioner and the trial court held that Subdivision 1 of Section 9461, R.C. 1919, was applicable to the facts here presented. We are of the opinion that this was error. Under the facts presented and under the rule of the Humphreys Case Subdivision 5 of said Section 9461, R.C. 1919, must be used as the basis for computing claimant's total annual earnings.
The judgment and order appealed from are reversed.