We concur.
Petitioner earnestly contends that his average weekly earnings should be based upon the rate of pay at which he was working at the time of his injury, for, although he was injured on the second day of his employment, such employment was for thirty hours a week or more, and that he was therefore subject to the provisions of subdivision 1 of section 12 of the Workmen’s Compensation, Insurance and Safety Act of 1917, as amended. (Stats. 1933, p. 1343.)
It is urged, in support of the claim above outlined, that in the face of the evidence, the commission abused its discretion by basing the award on another and different classification and that such action by the board was unsupported by the evidence and clearly arbitrary.
In directing the method to be employed by the commission in fixing awards, subdivision 1 establishes the rule, that where the employment is for thirty hours a week or more, the average weekly earnings shall consist of ninety-five per cent of five times the daily earnings at the time of such injury.
*150Subdivision 4 of said section 12 of the act provides that • where the employment is for less than thirty hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings of the injured employee cannot reasonably and fairly be applied, such average weekly earnings shall be taken at ninety-five per cent of such sum as shall reasonably represent the average weekly earning capacity of the injured employee at the time of his injury, due consideration being given to his actual earnings from all sources and employments.
Thus it will be seen that the commission is vested with authority to disregard subdivision 1 if, in its judgment, the. method provided for in such subdivision cannot reasonably and fairly be applied. If there is evidence to support a finding based on a calculation under either of the methods provided for, the court is without power to disturb the award based thereon.
The law clearly contemplates that the judgment of the commission shall prevail and shall be conclusive unless there is an abuse of discretion. Such an abuse of discretion is held to occur when there is a total absence of evidence to support the findings. On the other hand, if there is any evidence, even though it may be slight and afford a ground for a wide difference of opinion, the court is without authority in the premises to set the award aside.
It is also urged by petitioner that the word “employment” in subdivision 1 means “contract of employment” and not “days of labor”. This question is immaterial for it is quite evident that if the commission has authority to disregard the provisions of subdivision 1, it has that power regardless of the meaning of the word “employment”.