Danielson v. Industrial Com'n of Colo.

• Decision Date: 22 April 1935
• Docket Number: 13654.
• Citation: 96 Colo. 522,44 P.2d 1011
• Parties: DANIELSON et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

44 P.2d 1011

96 Colo. 522

DANIELSON et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 13654.

Supreme Court of Colorado

April 22, 1935

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding under the Workmen's Compensation Act by Hilma A. Ness claimant, for the death of Richard A. Ness, opposed by A Danielson and others, doing business under the firm name and style of A. Danielson & Son, employer, and by the Employers' Liability Assurance Corporation, Limited insurer. An order of the Industrial Commission awarding compensation was affirmed by the district court, and the employer and insurer bring error.

Judgment affirmed.

Edgar McComb and Milton D. Green, both of Denver, for plaintiffs in error.

Paul P. Prosser, Atty. Gen., and M. S. Ginsberg, Asst. Atty. Gen., for defendants in error.

BUTLER Chief Justice.

While in the employ of A. Danielson & Son, Richard A Ness sustained an injury arising out of and in the course of his employment. He died as a result of that injury. His widow, Hilma, was awarded compensation. The only controversy was, and is, over the construction to be given to section 4421, Compiled Laws, as amended by Session Laws of 1929, c. 186, § 2, p. 648. It provides as follows:

'The average weekly wage of the injured employee shall be taken as the basis upon which to compute benefits and shall be determined as follows: * * *

'(b) The total amount earned by the injured or killed employee in the twelve months immediately preceding the accident shall be computed, which sum shall be divided by fifty-two, and the result thus ascertained shall be considered as the average weekly wage of said injured or deceased employee, for the purpose of computing the benefits provided by this Act, except as hereinafter provided.

'(c) Provided, however, that in any case where the injured employee has been ill, and unable to work in consequence of such illness, or has been in business for himself during the twelve (12) months immediately preceding the accident, his average weekly earnings shall be computed by dividing the total amount earned during such twelve (12) months by the sum representing the difference between fifty-two (52) and the number of weeks during which such employee was so ill or in business for himself.'

Ness was a painting contractor. For some reason satisfactory to him, he worked for the Danielsons for wages a few days each week during three calendar weeks in February, March, and May, 1934. In one week he worked three days and earned $19,80; in another he worked four days and earned $26.40; in another he worked three days and earned $13.20--making a total of $59.40, wages earned during the twelve months immediately preceding the accident. At all times during that twelve months, except when he worked for the Danielsons, he was in business for himself as a painting contractor. Five days of six hours each constituted a working week. The commission added the number of days Ness worked during the three calendar weeks, making a total of ten days, and held that he worked two weeks, and that the average weekly wage was one-half of $59.40, or $29.70, and computed the award on that basis.

The Danielsons and the insurance carrier contend that the statute does not provide for fractions of a week and therefore that $59.40 is to be taken as the wages earned during three weeks, making the average weekly wage one-third of $59.40, or $19.80. As we have seen, paragraph (c) of section 4421, as amended, provides that the average weekly earnings shall be computed by dividing the total amount earned during the...