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FOX PENINSULA THEATRE et al. v. INDUSTRIAL ACCIDENT COMMISSION et al.a1
This is a petition for a writ of review. One Harry Grant, Jr., aged 18, was employed intermittently by Fox Peninsula Theatre as a substitute usher in the city of Burlingame at 30 cents an hour, with the extra duty of distributing handbills occasionally on one day a week at the same rate per hour. While engaged in the latter occupation he was injured. The commission found that the disability was 59 3/434 per cent. permanent, and awarded him $16.25 a week for 239 weeks, based on an average earning of $25 weekly.
The petition is based upon the ground that there is no competent evidence to support the finding of an average earning of $25, and this must be sustained. The evidence as to the wage as an usher and distributor of handbills shows a maximum of $7.50 weekly. The NRA code for a distributor of handbills fixed a minimum of $12 a week and a maximum of $15. The respondents rely wholly upon the testimony of a witness who was engaged in the advertising business in the city of Oakland to the effect that the average wage for a distributor of advertising matter in that city was $3 per day, and that a crew manager might after considerable experience be raised to $4 a day. He thought that a boy starting at 16 years of age and working until 21 should receive $100 a month if he was exceptionally bright.
The petitioners rely upon the express provisions of the Workmen's Compensation Act (St. 1917, p. 831, as amended) covering cases of this character. Section 12(c) (St. 1917, p. 842, § 12(c) provides that, when the injured employee is under 21 years of age, “if such probable earnings after attaining the age of twenty-one years cannot reasonably be determined, such average weekly earnings shall be based upon three dollars a day for a six-day week.” The latter part of the section was added to clear the uncertainty noted in Claremont Country Club v. I. A. C., 174 Cal. 395, 163 P. 209, L. R. A. 1918F, 177.
The undisputed evidence is that the employee had been unable to obtain any steady employment. He had worked part time in the Fox Peninsula Theatre while attending school. The distribution of handbills was done occasionally on Saturday when a particular picture was being run. He quit high school in his second year, and worked for a time at sea as a cadet. He was not employed regularly at the time of his injury, but was then studying mathematics with the intention of taking up aviation. He testified that he did not intend to follow the work in the theater and did not intend to work in the advertising business. The amount of the award was based solely upon the testimony of the witness that he “thought” that a bright boy starting at sixteen in the advertising business would not receive less than $100 a month at the age of twenty-one. But the witness had no facts upon which to base this conclusion. From his experience of three years in that business, he testified that he had had 285 boys working under him and that none had been raised above $3 a day; that a grown man, acting as crew manager, might be paid $3.50 or $4 a day with an average of five days a week.
In basing the indemnity on average earnings of $25 weekly, the commission rested its findings on mere conjecture. The case presents a clear example of one in which the probable earnings “cannot reasonably be determined,” and for that reason the award should follow the terms of the statute.
The award is annulled, and the proceeding is remanded.
NOURSE, Presiding Justice.
We concur: STURTEVANT, J.; SPENCE, J.
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Docket No: Civ. 9650.
Decided: December 10, 1934
Court: District Court of Appeal, First District, Division 2, California.
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