The Commission found from this evidence that respondent's earning capacity was $50 per week and that his compensation rate was $25 per week. This evidence was properly considered by the Commission in arriving at respondent's earning capacity and we think sufficient to sustain its finding in this respect. In Acme Semi-Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76, 79, this court said: "It is to be noted that subdivision 1 and subdivision 2 deal with a method of computation by the average daily wage. That phrase was dropped in subdivision 3, and we think for a definite reason.
We agree. In referring to the same Statute herein question, this Court, in Acme Semi-Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76, 79, said: "It is to be noted that subdivision 1 and subdivision 2 deal with a method of computation by the average daily wage. That phrase was dropped in subdivision 3, and we think for a definite reason.
"One other argument is made in this connection, that is, that since the respondent was paid a total of $600 for six months' work, his weekly wages could only be $11.50, which is arrived at by dividing 52 into $600. We discussed the error of this theory in Skelly Oil Co. v. Ellis, 176 Okla. 569, 56 P.2d 891, and Acme Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76. The average daily wage either of one employed for substantially the whole of the year or a like employee employed for substantially the whole of a year is first ascertained by the commission as a multiplier. Three hundred is then set by statute as a multiplicand, and the product is the annual earnings.
The third subdivision is to be applied when 1 or 2 cannot reasonably or fairly be applied. Skelly Oil Co. v. Ellis, 176 Okla. 569, 56 P.2d 891; Acme Semi-Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76; Chickasha Cotton Oil Co. v. Marcum, 182 Okla. 55, 75 P.2d 1129; Superior Smokeless Coal Mining Co. v. Cattaneo, 180 Okla. 135, 68 P.2d 497. Whether subdivision 1 or 2 can be fairly or reasonably applied is largely within the discretion of the State Industrial Commission.
and there is no preconceived plan of staggered employment as applied to him; he had a coworker who was a regular employee, doing the same kind of work that respondent claimant was employed to do, who did work substantially the whole of the immediately preceding year, and, therefore, subdivision 2 can be reasonably and fairly applied; and, as intended by the Legislature, should have been applied in this case on the basis of the co-employee Bilby's earnings for the immediately preceding year. Whether subdivision 2 of section 13355, supra, can be reasonably and fairly applied, should be determined from the evidence submitted to the State Industrial Commission, and where there is competent evidence sufficient to support the fair and reasonable application thereof and to establish the average daily wage thereunder, the findings will not be disturbed. Briscoe Construction Co. v. Miller, 184 Okla. 136, 85 P.2d 420; Chickasha Cotton Oil Co. et al. v. Marcum et al., 182 Okla. 55, 75 P.2d 1129; Acme Semi-Anthracite Coal Co. v. Manning et al., 178 Okla. 420, 63 P.2d 76. It is the contention of the petitioner that the average daily wage should have been determined under subdivision 3 of section 13355, supra, and it relies principally upon the case of Skelly Co. Oil Co. v. Ellis, supra.
As to whether or not subdivision 1 or 2 can be fairly or reasonably applied is a question of fact, and if there is any competent evidence to sustain the finding of the average daily wage based upon the reasonable application of said sections, the finding will not be disturbed. Acme Semi Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76. We are of the opinion, and hold, that there is competent evidence in the record to sustain its finding, since there was evidence that a roustabout, who had worked substantially the whole of a year, was paid a daily wage of $5.
There is competent evidence in the record that an employee of the same class working substantially the whole of the year was paid $5 per day. The State Industrial Commission found that the average daily wage of the injured employee was $4 per day. Subdivision 2 of section 13355, O. S. 1931 (85 Okla. St. Ann. sec. 21), was properly applied by the State Industrial Commission in determining the rate of compensation. There is competent evidence to sustain the finding based upon such average daily wage. Acme-Semi-Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76; Westgate Oil Co. v. Matthews, 176 Okla. 346, 55 P.2d 1043. Finally petitioners allege that the State Industrial Commission was without jurisdiction to make a finding as to the rate of compensation for the reason that there had been a previous determination of the rate of compensation in the payment of temporary total disability above referred to in the sum of $13.32 per week.
One other argument is made in this connection, that is, that since the respondent was paid a total of $600 for six months work, his weekly wages could only be $11.50, which is arrived at by dividing 52 into $600. We discuss the error of this theory in Skelly Oil Co. v. Ellis, 176 Okla. 569, 56 P.2d 891, and Acme Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76. The average daily wage either of one employed for substantially the whole of a year or a like employee employed for substantially the whole of a year is first ascertained by the commission as a multiplier. Three hundred is then set by statute as a multiplicand, and the product is the annual earnings.
In Nichols Transfer Storage Co. v. Pate, 173 Okla. 582, 49 P.2d 225, we said under subdivision 3 of the statute (13355) the base rate of compensation is dependent upon the earning capacity of claimant as determined upon consideration of his own earning and those of other employees similarly situated. In Acme Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76, we said that subdivision 3 was to be used when subdivisions 1 or 2 could not fairly and reasonably be applied. We further said that when subdivision 1 or 2 was fairly and reasonably applied, was largely within the discretion of the State Industrial Commission. The commission in the case at bar had found under date of November 21, 1934, that the wage of claimant was $3. There was on file at that date employer's first notice stating that respondent had worked for it three years and fixing his wage at $3 per day. It is to be judged the commission applied subdivision 1, supra. If it is not fairly and reasonably applied the record does not reflect it other than in the attempt of the petitioner at this late stage to divide the total amount which it claims respondent earned one year prior to the date of the accident and thus conclude that respondent worked only 123 days, therefore, less than a substantial whole of the year within the terms of the provisions of section 13355, supra.
We are, therefore, of the opinion that the commission did not commit error in its finding, and that the same is supported by competent evidence. Skelly Oil Co. v. Ellis, supra, was followed in Acme Semi-Anthracite Coal Co. v. Manning, 178 Okla. 420, 63 P.2d 76. The award is therefore affirmed.