This is an error of which the petitioner is not entitled to complain. See Westgate Oil Co. v. Mathews, 176 Okla. 346, 55 P.2d 1043. The final contention of the petitioner, which is that the evidence did not justify the act of the commission in excusing the failure of the respondent to give the statutory notice of his injury, is wholly without merit.

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.

dmitted in the brief that Dr. Phil White testified for the respondent October 30, 1936, and then stated that his back condition was permanent and that respondent was disabled permanently by reason of the accident and incapacitated to perform ordinary manual labor; that Dr. Moore testified that respondent had a permanent partial disability to the back which he declared to be 60 per cent. Although the percentage of disability is not the test of a right to award in the "other cases" classification, Texas Co. v. Roberts, 146 Okla. 140, 294 P. 180, and such award is to be based upon a decrease in earning capacity, since the petitioner does not raise the sufficiency of evidence to sustain the finding of a decrease in earning capacity since the date of the accident, in view of the record we conclude that there is competent evidence to establish that he sustained an injury to his back which resulted in a decrease in earning capacity. Manahan Drilling Co. v. Wallace, 179 Okla. 613, 67 P.2d 1; Westgate Oil Co. v. Matthews, 176 Okla. 346, 55 P.2d 1043. Under those authorities and the principle announced therein, if it was the intention of the petitioner to contest the fact that the respondent suffered a decrease in earning capacity from and after the date of the accidental injury, it should have made that fact known at the hearing.

We have said that the average annual earnings of an employee under subdivision 1 is 300 times the average daily wage; and that if he has not been employed for substantially the whole of the year, the commission should proceed to determine his annual earnings by multiplying the average daily wage of a like employee employed substantially for the whole of a year by 300. If neither of these methods of arriving at the annual earnings of an employee can be used, the commission should proceed to determine the annual earning capacity of the injured employee. If the petitioner was of the opinion that such evidence as recited above was not competent to establish the average daily wage of the respondent, or a like employee, it should have relied upon that objection at the time. Westgate Oil Co. v. Matthews, 176 Okla. 346, 55 P.2d 1043; Superior Smokeless Coal Co. v. Cattaneo, 180 Okla. 135, 68 P.2d 497. Taking into consideration the motion filed before the commission in which the petitioner maintained that respondent should draw only $3 per day as ginner and not his $100 per month as gin manager, and the additional fact that the employer filed the first notice referred to above stating the salary of petitioner to be $100 per month, we conclude that at this time the petitioner should not be allowed to change its position and urge that the employment of the respondent was seasonal or casual.

Respondent urges that the above section precludes an inquiry at the subsequent hearing into the daily wage, and cites in support thereof Royal Mining Co. v. Murray, 167 Okla. 460, 30 P.2d 185; Marland Ref. Co. v. Bivins, 135 Okla. 14, 273 P. 212; Olentine v. Calloway, 147 Okla. 137, 295 P. 608; Ward v. Beatrice Creamery Co., 117 Okla. 31, 245 P. 570. If the petitioner was of the opinion that the respondent had not worked substantially the whole of a year, it should have made its objection in time to permit the respondent to proceed under subdivision 2 of said section to furnish competent evidence of the average daily wage of a like employee, or if subdivision 2 could not be applied, then to proceed under subdivision 3 to determine the wage-earning capacity. Westgate Oil Co. v. Matthews, 176 Okla. 346, 55 P.2d 1043. It cannot now take the total sums which respondent has made and by a process of division urge that this becomes competent evidence of a lack of employment for the substantial part of a year. We are of the opinion and hold that there was competent evidence from which the commission could find that the daily wage of the employee was $3 and we shall not discuss the nature and effect of the order of the 21st day of November, 1934, in which the commission found that the daily wage of the respondent was $3 and which award became final.