
    LANG, Respondent, v. T. J. TOBIN CONSTRUCTION CO., et al, Appellants
    (283 N. W. 169.)
    ( File No. 8155.
    Opinion filed December 30, 1938.)
    
      Caldmiell & Burns, of Sioux Falls, for Appellants.
    
      Warren & Bggen, of DeSmet, for Respondent.
   PER CURIAM.

The facts in this case bring it within the rule announced in Humphreys v. Construction Co., 66 S. D. 112, 279 N. W. 246. It appears that the respondent, Lang, had been employed by the defendant construction company a full year prior to the time of the accident, but under the rule laid down in the Humphreys Case, this fact does not determine the applicable statute, if the employment is such that it is the custom to operate for only a part of the working days each year. The Industrial 'Commissioner and the trial court held that 'Subdivision 1 of Section 9461, R. C. 1919, was applicable to the facts here presented. We are of the opinion that this was error. Under the facts presented and under the rule of the Humphreys Case Subdivision 5 of said Section 9461, R. C. 1919, must be used as the basis for computing claimant’s total annual earnings.

The judgment and order appealed from are reversed.  