delivered the opinion of the Court.
*684Will Smith, while working at a quarry owned and operated by John W. Bragg, received an injury resulting in the loss of both eyes. He instituted suit under the Workmen’s Compensation Act.
The trial court found that petitioner’s average weekly wages were $22.50', and decreed a recovery in his favor in the sum of $11.25 per week for a period of four hundred weeks and the further sum of $5 per week for an additional period of one hundred and fifty weeks.
The defenses now relied upon are, in the main, of a technical nature. It is said that it is not averred in the petition that the parties were operating under the Compensation Act, or that there were as many as five men regularly employéd. On the other hand, no claim is made in the answer that the parties were not operating under the act, or that the employer is not using as many as five men in operating its plant. The petitioner stated that he had been working at this plant for seven years, and then testified:
“Q1. How many men were working there at the time you g’ot hurt? A. There was seven of us.
‘ ‘ Q. How many men had worked there about that time ? A. Just seven.”
We discussed at some length the question of pleadings in this character of case in Hartwell Motor Co. v. Hickerson, 160 Tenn., 525, and it is unnecessary to repeat here what was said in that case. The employer was sued under the Compensation Act. If, in fact, he was not operating under the act, it was his privilege to make that aii issue.
What was said in the case just referred to as to notice applies here. The employer knew all about the accident, sent petitioner to the hospital, employed physicians to *685administer to him, paid their hills and the hospital hill, and paid him compensation aggregating- $450.
The contention that petitioner was an independent contractor is answered by the opinion of this court in Mayberry v. Chemical Co., 160 Tenn., 459.
The most difficult question in the case is the amount of compensation petitioner is entitled to recover.
Petitioner is an ignorant negro and kept no account of wages received. He was ■ employed in loading-rock at so much per car. The work was out of doors, and during rainy or very cold weather he did not work, and necessarily worked less during the winter months than at other seasons of the year. While he had been working for defendant for several years, he testified that he worke'd when it suited him, had no regular hour to begin work in the morning or to quit in the evening.
It appears that during- the year preceding- the accident petitioner worked on an average of less than three days per week, and his average wages during this period were $12.50 per week. There were only four weeks during this year that petitioner worked the full six days. His average earning’s for these four weeks were $22.50. Counsel for petitioner contend that the statute must be literally construed, and the average wages received for the weeks in which petitioner put in full time made the basis of computation. This was the view entertained by the trial court. In so holding- the trial court committed error. The portion of the statute involved provides as follows:
“ ‘Average weekly wages’ shall mean the earning’s of the injured employe in the employment in which he was ■working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employe *686lost more than seven days during such period when lie did not work, although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time.so lost has been deducted.”
This provision clearly contemplates one regularly employed for a “normal week” as distinguished from “•periodical employment.” Where one regularly employed earns a given sum for a normal week it would be inequitable, in computing his compensation in case of accident, to include those weeks when, on account of illness or because the plant was shut down for repairs, his earnings were reduced. Likewise, it would be unjust to the employer to require him to pay one who only works three days a week the wages received by one who works six days a week engaged in similar work.
In White v. The Pinkerton Co., 155 Tenn., 233, this court said:
“After a careful consideration of the statute we have concluded that the object of the act was to compensate a disabled employee, to the extent of fifty per cent of the wages' he had been receiving, for a given number of weeks. ’ ’
While it seems that the act does not expressly provide for computing- compensation of one periodically employed, as was said by the Supreme Court of Massachusetts, quoted in the White case, “it does not follow that the employee shall go without remuneration, but that the ‘average weekly wages’ actually earned by Tier during the time she was actually employed shall be the basis of compensation.”
If the work is discontinuous, that is an element which cannot be overlooked. Anslow v. Cannock Chase Colliery Co., 78 L. J. K. B., 679.
*687Applying the rule announced herein to the facts, we find that the average weekly wages of the petitioner were $12.50' instead of $22.50, and the decree of the trial court will be modified accordingly. Petitioner will pay one-third of the cost of the appeal, and all other costs will be paid by the defendant.