This is an appeal from an award of the Industrial Board of Indiana. The facts in this case are undisputed. The appellees are the widow and minor daughter of William Twining, formerly an employee of the appellant as a volunteer fireman, who was killed in an accident arising out of and in the course of his employment as such volunteer fireman.
The employment of the decedent by the appellant as a volunteer fireman had extended over a period of more than a year prior to his injury. The decedent's employment was not on the basis of a fixed salary but he received a wage of $1.50 for the first hour or part of an hour on fire alarms within the corporate limits of appellant, and $1.00 an hour for all other hours or parts of hours for which he worked as a volunteer fireman. Under the terms of his employment he was obligated to answer fire alarms when they came, on any day of the year, Sundays and holidays included, but was required to work only on the occasion of a fire alarm. At all other times he was free to, and did, engage in other separate and different employment, being so employed immediately preceding his injury, at the Sinclair Refining Company, and as such employee he earned approximately $225 per month which was his principal income. During the 52 weeks preceding his death appellant was required to work as *Page 231 such volunteer fireman on 54 days and upon the remaining 310 days of these 52 weeks he was not required to work because no fires occurred on these days and his employer, the appellant, had no fire extinguishing to do. During this period the decedent earned and was paid under his contract of employment by the appellant the sum of $138.50.
Upon the foregoing facts the industrial board found that the decedent's average weekly wage as such volunteer fireman was $17.96. This amount was arrived at by treating the 310 days of the said 52 weeks, upon which he was not required to work, as lost days, and dividing the seven and five-sevenths weeks, being the period of time the services were performed by the deceased, into the total amount earned and paid to the deceased during said 52 week period.
Appellant's sole contention is that the industrial board erred in treating said 310 days, in which deceased was not required to work, as lost days in computing decedent's average weekly wage. The method for arriving at such average weekly wage is provided for under § 40-1701 (c), Burns' 1940 Replacement being part of the Workmen's Compensation Act. This section reads in part as follows:
"(c) `Average weekly wages' shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of injury, divided by fifty-two (52); but if the injured employee lost seven (7) or more calendar days during such period, although not in the same week, then the earnings for the remainder of such fifty-two (52) weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the *Page 232 earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained . . ."
It is our opinion that the board erred in considering the 310 days during the 52 week period immediately preceding the decedent's injury on which he was not called upon to serve as a volunteer fireman, as lost days as contemplated by the above set out statute. We agree exactly with what was said by Crumpacker, J., on certain phases of this case when the same was before the Appellate Court of Indiana (1945), 64 N.E.2d 45, 49. We, therefore, adopt as our own the following language employed by him in a portion of his dissenting opinion in which Draper, J., concurred.
"Under his contract with the appellant the decedent was employed and paid on an hourly basis and was required to work only on the occasion of a fire in the city of 1, 2. Kendallville. At all other times he was free to and did engage in other work, being employed, during the 52 weeks immediately preceding his injury, by the Sinclair Refining Company at which employment he earned approximately $225 per month. Experience apprised both the decedent and the appellant that there would be many days during the year in which there would be no fires in the city of Kendallville and . . . in contemplation of both parties the contract here involved was for part-time services only and . . . days upon which there were no fires were wholly outside its terms and therefore cannot be considered as lost. The fact that work days were not definite and certain and the decedent was required to hold himself in readiness at all times to answer a fire alarm does not alter the nature of the contract. In the case of In re Wheeler (1920),73 Ind. App. 145, *Page 233 126 N.E. 689, this court held that the question of whether those Sundays upon which no work was done constituted "lost days," within the meaning of the statute, depends on whether the employee's engagement required work on Sundays and where he was not engaged to, and does not work on intervening Sundays, such failure to work cannot be counted as lost time in ascertaining his average weekly wages. Sundays are definite and fixed while fires in a community are speculative and uncertain but that distinction between the Wheeler case and this does not alter the fact that the decedent's contract did not engage him to work, nor did he work, on those days upon which no fires occurred . . . we find that the City of Kendallville worked at the business of extinguishing fires 54 days during the 52 weeks immediately preceding the decedent's death. As he lost none of these days his average weekly wages must be computed by the first provision of § 40-1701, Burns' 1940 Replacement, which reads as follows: `"Average weekly wages" shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of injury, divided by fifty-two (52);' The decedent's earnings were $138.50 during the period involved which, divided by 52, fixes his average weekly wages at $2.66.
"It might be said that the appellant was engaged 365 days of the year in fire prevention but the decedent's employment had nothing to do with that. He performed no services in that 3. regard nor was he hired to do so. He contracted to work only when there was a fire and it is difficult to see how the 310 days during which there were no fires and during which he did not contract to work can be considered lost days . . . under the contract of employment *Page 234 his employer could not demand or control his services except in the event of a fire and the additional fact that there were only 54 days during the 52 weeks immediately preceding his injury when the appellant had any right to any part of his time or to control his actions in any manner whatsoever. This case is not analogous to that in which an employer buys all a man's time whether he uses it or not. Here the decedent's time, when not actually engaged in extinguishing fires, was his own and he used it to good advantage by the performance of services to another for which he earned $225 per month . . . I realize that compensation to the appellees on this basis is a mere pittance for the loss of a husband and father upon whom they were wholly dependent. It is apparent that the legislature also realized that the compensation provided by the Workmen's Compensation Act to volunteer firemen would ordinarily amount to little and as a supplement to such compensation it provided that cities operating volunteer fire departments must carry insurance in an amount of not to exceed $3500 for the benefit of each of such firemen or his dependents in the case of injury or death while in the performance of his duties. I construe the passage of this insurance act as strong indication of legislative intention that a volunteer fireman's average weekly wages should be determined on the basis of crediting as "lost days" only those days upon which there were fires and the fireman, through no fault of his own, was unable to answer the call . . . The appellees in this case have collected maximum insurance in the sum of $3500 and while that fact is unimportant in determining the decedent's average weekly wages it does indicate that when such wages are computed on the basis for which I contend, and on *Page 235 the basis I believe the legislature intended, the entire picture does not shock the conscience."
The appellees in support of the award herein, rely uponMiller v. Binchley Mining Co. (1934), 99 Ind. App. 257,190 N.E. 886 and Holton v. Jackson Hill Coal and Coke Co. (1935),101 Ind. App. 231, 198 N.E. 805.
The first of these decisions is confusing. The employee was a coal miner. The mine in which he was employed worked 218 days out of the 52 week period immediately preceding his injury; he lost 96 days during the time that the mine was worked. The decedent was working on a "split time basis" during the 52 weeks immediately preceding his death. Without explaining the deceased's working status or contract of employment, the court merely stated the number of lost days. Also, the court included as lost days the days when the mine was not worked, although at first reading it would appear that the period during which the mine was idle did not enter into the equation.
As to each of these decisions we entirely approve what was said by Judge Crumpacker in his above mentioned opinion, as follows: "In Holton v. Jackson Hill Coal Coke Co., supra, . . . the court applied the rule announced in the Miller case. In doing so the court said in reference to the employee: `The appellant began working for the appellee August 23, 1926, and was in the continuous employment of the appellee from that date until his injury July 7, 1933, never working at any other place duringthat period of time.'" (My emphasis.) Again in the course of its opinion the court said: "During the entire time from August 23, 1926, until the date of his injury, his employment or occupation that which engaged and occupied his time was *Page 236 mining coal for appellee. Appellant had no other employment oroccupation." (My emphasis.) These facts seem to have controlled the court's conclusion that days when the mine was shut down for the purpose of negotiating a new contract with a labor union should be considered as lost days. It cannot be said in the present case that serving the appellant as a volunteer fireman was that which engaged and occupied the decedent's time and that he had no other occupation. In truth the situation is quite the contrary. The facts involved in the mining cases and the contracts controlling the rights and liabilities of the parties are so radically different from those of the case at bar that I cannot consider these decisions as controlling here nor as throwing much light on the present problem.
This cause is remanded to the industrial board with instructions to restate its award on the basis of average weekly wages in the sum of $2.66.
O'Malley, J., Gilkison, J., dissent.
NOTE. — Reported in 65 N.E.2d 846.