On this аppeal the plaintiff seeks a reversal of a judgment confirming an award made by the Industrial Commission for the payment of compensation by the plaintiff to the defendant, La Violеtte. The facts as tO' the latter’s injury while performing services as a dance-hall inspectоr, upon being called to assist Robert Sigl, a duly appointed and acting
“In cases where the foregoing methods of arriving at the average annual earnings of the employee cannot reasonably аnd fairly be applied, such average annual earnings shall be taken at such sum as, having regard to the previous earnings of the employee, and of other employees of thе same or most similar class, working in the same or most similar employment, in the same or a neighboring locality, shall reasonably represent the average annual earning capacity of the injured employee at the time of the injury.”
Proof taken accordingly by the commission established that neither the plaintiff, nor any other county, had employed such an inspеctor with sufficient regularity during the preceding year to warrant holding that his earnings in that position reasonably represented the average annual earning capacity of an employee injured while so engaged. On the other hand, the proof established that the most similar class or employ
“no deputy sheriff in Shawano county worked full time; that an employee of the same class, namely a deputy sheriff in a neighboring place, namely Marathon county, Wisconsin, did work substantially the entire year and did earn during that year a salary of $100 per month which is equivalent tо a weekly wage of $23.08; . . . that having regard to the previous earnings of the applicant аnd of other employees of the same or most similar class working in the same or most similar employment in a neighboring locality, said wage fairly represents the earning capaсity of the applicant at the time of his injury.”
In challenging the commission’s award on the basis of thаt average weekly wage of $23.08, the plaintiff contends that it was error to use as the basis thе wages paid the full-time deputy sheriff by Marathon county. That contention must be overruled. The сommission was required, by the judgment theretofore affirmed, to compute the compensation under sec. 102.11 (2) (c), Stats. 1933. As La Violette had never worked theretofore as such an inspector, and neither Sigl, nor any other inspector in Shawano, or any other county, had worked with sufficient regularity to render his earnings in that capacity eligible, under the statute, as the basis fоr computing the average annual earnings, the commission was required to give due regard tо “the previous earnings . . . of other employees of the . . . most similar class, working in the . . . most similar employment, in the same or a neighboring locality.” That warranted the commission in holding, under the рroof, that employment as a deputy sheriff was the most similar employment; and, as no onе was so employed in Shawano county during substantially the whole of the preceding year, оr with sufficient regularity to render his earnings competent as the basis for computation to bе made under 'sec. 102.11, Stats., the commission’s award could be based on
By the Court. — Judgment affirmed.