Claimant was injured while working for the Geneva-Pearl Oil Gas Company as a pumper and as a result of the accident suffered 85 per cent. of the loss of vision of the right eye. The company filed an answer admitting the injury, but pleaded that the claimant was hired at a wage of $50 per month to be paid by the Geneva-Pearl Company and $90 per month by the Rockland Oil Gas Company and that any award rendered against the Geneva-Pearl Oil Gas Company should be based on a wage of $50 per month and not a wage of $140 per month. The Rockland Company was not made a party. The wells were located on adjacent leases, but neither company had any interest in the wells of the other.
It appears from the facts that claimant was engaged to look after the pumping of the wells on two leases, one of which belonged to the Geneva-Pearl Company and the other to the Rockland Company. His monthly wages were paid by the separate check of each company.
The Commission entered its order awarding compensation for 85 per cent. loss of vision in the eye. It found that the claimant was paid $50 by the Geneva-Pearl Company, but on account of claimant being paid $140 by both companies, the claimant was awarded compensation on the basis of $140 per month, the total wage paid by both companies. The case is brought here for review by the respondents.
It is first contended that there is no provision in the Oklahoma Compensation Act providing for awarding compensation on the basis of joint or concurrent employment and for this reason the award should be based on the actual wage the employee received from the employer for whom he was working at the time of the injury. The next contention is that if the Compensation Act contemplates computing an injured employee's wage on the basis of the concurrent wage paid by several employers at the time of the injury, then the facts in this case show that the employment is a joint one and the Rockland Oil Company should have been made a party and that the award should have been prorated between the two companies.
These questions have never been passed upon by this court. The Supreme Court of Utah, in the case of Bamberger Electric R. Co. v. Industrial Commission of Utah, 203 P. 345, said:
"Where deceased, employed by an electric railroad company, and also by an electric power company, spent part of the time operating railroad company's transformers on one side of a building and a part of his time attending to the power company's machinery on the other side of building, his death from *Page 284 injuries sustained while attending the power company's machinery, at a time when he was performing no duties for the railroad company, was not the result of an accident arising out of or in the course of his employment with the railroad company., and the railroad company was not liable for any part of the compensation awarded under the Workmen's Compensation Act, but the full amount of the award based upon the total amount of his earnings from both companies should be made against the power company alone."
As to the rule announced in the above case, the decisions are not uniform, and as evidence thereof reference is made to the following cases: Western Metal Supply Co. v. Pillsbury (Cal.)156 P. 491; Curran v. Newark Gear Cutting Mach. Co., 37 N.J. L. J. 21; Gillen v. Ocean Accident Guarantee Co. (Mass.)102 N.E. 346; In re Howard (Ind.) 125 N.E. 215; Chicago I. Traction Co. v. Industrial Board (Ill.) 118 N.E. 464; Maggie Sargent v. A. B. Knowlson Co. (Mich.) 30 A. L. R. 993; Re Henry A. Quebec, Deceased (Mass.) 30 A. L. R. 996; King's Case (Mass.) 125 N.E. 153; Marvin's Case (Mass.) 125 N.E. 154.
The rule announced in each state depends largely, of course, upon the statute of the particular state. The rule we announce must depend upon our interpretation of our statutes. The controlling statute here is section 7289, C. O. S. 1921, which is as follows:
"Except as otherwise provided in this act, the average weekly wages 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:
"1. If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, 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.
"2. 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 a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.
"3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot 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 accident.
'4. The average weekly wages of an employee shall be one fifty-second part of his average annual earnings.
"5. If it be established that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages."
These provisions seem to make the "average" weekly wages of the injured employee at the tinie of the injury the basis upon which compensation shall be determined. It is not based upon the employee's contract with any particular one of his employers, but with all of them. It is based upon the average weekly wages he receives from the business or occupation in which he is engaged.
The first paragraph of section 7289, provides that if the injured employee shall have worked in the "employment" in which he was working at the time of the accident, whether for the "same employer or not," during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of 300 times the average daily wage or salary which he shall have earned in such employment during the days when so employed. For a proper understanding of this section it is necessary for us to determine what is meant by the word "employment." In the sense in which it is used here, Webster defines it as follows: "That which engages or occupies; that which consumes time or attention; occupation; office or post of business; service; as agricultural employment; business employment." As used here it means the "occupation" or "business" of the injured employee. In other words, in this particular case the business of the injured employee was that of a pumper or to look after the pumping of the wells on the two leases. That was his business or employment. It makes no difference whether he gave all of his time to one or more employers. His average wage was the average total amount he received for all of his time while engaged as a pumper. He was engaged in that capacity for more than a year continuously preceding the accident. In such a case the *Page 285 statute provides that his annual earnings shall consist of 300 times the average daily wage or salary which he shall have earned as a pumper during the days when so employed. It cannot be said his average wage as a pumper was $50 per month, because that is not true. One company paid him $50 and another $90 per month. His average wages therefore, must necessarily mean the average total amount he received from both companies.
The language used in this section seems to be significant. In the first part of it "average weekly wages" appears. In the first and second paragraphs the term "average annual earnings" is used. The third paragraph provides for cases where neither the first nor second paragraph is applicable. It provides that if neither of those methods of arriving at "annual average earnings" can reasonably and fairly be applied, such "annual earnings" shall be. * * * The fourth paragraph provides that the "average weekly wages" shall consist of one fifty-second part of the average "annual earnings." The fifth paragraph provides that if the employee is a minor when injured and under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his "average weekly wages." The scheme of all of these provisions seems to be to provide for a fair method whereby the "average annual earnings" or "average weekly wages" can be fairly and reasonably determined. We think the Legislature intended to provide for a method whereby the average weekly wages could fairly be determined.
The insurance carrier cannot complain, because the law relating thereto became a part of his contract. Again, if the employee worked one-third of his time for each of three employers, it is fair to them, because they each take the risk for one-third of his time and no more.
The petition to vacate is denied.
LESTER, C. J., CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., dissents.