Gunther v. US EMPLOYEES'COMPENSATION COMMISSION, 5973.

• Decision Date: 19 May 1930
• Docket Number: No. 5973.,5973.
• Citation: 41 F.2d 151
• Parties: GUNTHER v. UNITED STATES EMPLOYEES' COMPENSATION COMMISSION et al.
• Court: U.S. Court of Appeals — Ninth Circuit

41 F.2d 151 (1930)

GUNTHER v. UNITED STATES EMPLOYEES' COMPENSATION COMMISSION et al.

No. 5973.

Circuit Court of Appeals, Ninth Circuit.

May 19, 1930.

H. W. Hutton, of San Francisco, Cal., for appellant.

Edwin T. Cooper and Charles T. White, both of San Francisco, Cal., for appellee California Stevedore & Ballast Co.

Before DIETRICH and WILBUR, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

This is an action in equity to review an order of the deputy commissioner for the Thirteenth district under the Act of Congress of March 4, 1927, known as "Longshoremen's and Harbor Workers' Compensation Act." USCA Title 33, c. 18, §§ 901-950. From a decree dismissing the cause plaintiff appeals.

Appellant is the widow of Richard W. Gunther, who was accidentally killed on August 16, 1927, while working in the capacity of a longshoreman or stevedore for the defendant California Stevedore & Ballast Company at the port of San Francisco. Hearings were had before the deputy commissioner upon appellant's application for widow's compensation, and following such hearings an order was made allowing her compensation in the sum of $6.01 per week, and denying her petition for a lump sum settlement. This proceeding was instituted and appeal taken under the provisions of section 921 of the act, supra, authorizing the review of such orders when made "not in accordance with law." It is appellant's contention that the compensation order is not in accordance with law.

The basis upon which the deputy commissioner is required to make determination of the compensation to be allowed is governed by the provisions of section 910 of Title 33, the material portion of which reads:

"Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

"(a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.

"(b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

"(c) If either of the foregoing methods of arriving at the annual average earnings of an injured employee can not reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury."

The deputy commissioner, called as a witness in the court below, testified concerning the making of the compensation order as follows:

"I figured the wages in this case under subdivision (c) of section 10. (Title 33, § 910.) The theory I followed was that Subdivisions (a) and (b) of section 10 should apply where the injured employee worked during substantially the whole of the year; and Subdivision (c) applies where either Subdivisions (a) or (b) cannot be reasonably or fairly applied. Now, the evidence brought out before me in this case was that Mr. Gunther had worked a certain number of days shown by the record which I have forgotten, the exact number — if I recall it was less than two hundred days out of the year; and he earned during that time $892.00; it seemed to me that if a man worked less than two hundred days out of the 365 of the year, he could not be said to have worked substantially the whole year within the meaning of Subdivisions (a) and (b) of this section; so, applying Subdivision (c), I took the gross earnings shown by the evidence for the whole year as his average yearly earnings, and then took a percentage fixed by the Act for a widow, which, as I recall, was thirty-five per cent., and that gave, or should have given that figure that was fixed in the award. I do not think that there was any evidence before me that he worked at anything else during that period. There was some such evidence offered that he was standing down at the corner of Market Street and the Embarcadero, in this city and county, as all of the stevedores stand every morning, waiting to be called on to go to work. The evidence which I used as a basis of the decision was statements and testimony from the different stevedoring companies in the Port of San Francisco, showing his earnings while working for them during the year. The record should show he was down there waiting to be called on. I did not consider the question as to whether he might or might not have worked, I took the actual earnings for the year as shown by the testimony — the actual earnings for the year — before his death — as the basis for determining the average annual earnings. I understood from the evidence that these men get ninety cents an hour for such time as they work. I did not understand that there was any...