Petition for a writ of review.

A rehearing was granted in this case to give further consideration to the contention of petitioner that, even though an award was warranted, the award made was excessive. We are satisfied that the opinion heretofore filed correctly disposed of the other issues involved and we therefore adopt the following portions of that opinion as and for the opinion of this court on rehearing. The portions so adopted are as follows:

The petitioner contends that the widow of decedent was not entitled to a full death benefit of $6,000, payable at $25 per week as found by the commission, it being urged that the average earnings of decedent were such as to require a smaller award. Prior to the oral argument the widow died, and the adult children of the couple have been substituted as parties. None of these children was dependent on decedent. Section 4706 of the Labor Code provides that upon the death of a dependent beneficiary, where there is no surviving dependent, “. . . the death benefit terminates and does not survive to the estate of the deceased dependent, except that payments of the death benefit accrued and payable at the time of the death of the sole remaining dependent shall be paid upon the order of the commission to the heirs of the dependent . . . without administration. ’ ’ Thus the nondependent children are entitled to all payments that accrued up to the date of the death of Mary Laurio. If the award had been for less than $6,000, the weekly payments that would rightfully have accrued prior to Mary Laurio’s death would have been less than $25 per week, so that the correctness of the finding to the effect that she was entitled to the full death benefit is still in issue.

The evidence as to the earning capacity of Vincent Laurio prior to his death is somewhat sketchy and incomplete. Prior to the fatal accident he was in good health. The accident causing death occurred in March, 1947. A daughter of the deceased testified that prior to 1947, the decedent had worked intermittently, but that during 1947, he was in excellent health and worked regularly. In 1946, he worked intermittently and earned between $900 and $1,000. The only evidence as to his 1947 earnings was that he was paid $2.00 per hour while working on the job where he was killed.

Section 4452 of the Labor Code provides that no death compensation award could exceed $6,000. Section 4702 provides that in case of total dependency (and it is admitted that Mary Laurio was totally dependent), the death benefit shall be three and one-half times the average annual earnings of the deceased employee.

Petitioner contends that, at most, the death benefit could not exceed three and one-half times $1,000 (that having been the employee’s annual earnings for 1946), or a total benefit of *870 $3,500. The Labor Code provides, in some detail, how average earnings shall be computed. Section 4453, as it read at the time of the accident, provided:

Subdivision (a) above would seem to be here applicable. When injured the employee had agreed to work eight hours a day for $2.00 per hour, and the job was to take five or six days. Computed under subdivision (a), the average earnings far exceeded the maximum of $38.46 per week, and required the maximum benefit.

If subdivision (a) is not applicable, then subdivision (d) would be applicable. Under that section it was for the commission, on the evidence, to calculate the average weekly earning capacity of the deceased employee. It must be held that in finding that the deceased employee’s weekly earnings at the time of death were at least $38.46 (thus warranting the $6,000 award), the commission did not abuse its powers. The correct rule is laid down in the concurring opinion in Neahr v. Industrial Acc. Com., 13 Cal.App.2d 146 [ 56 P.2d 568 ], at page 150, as follows: “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.”

*871 The evidence in the instant case is that the deceased employee, when injured, was making $16 per day. Christensen, his associate, testified that, on the average, he was making, out of gardening work, about $45 per week. The commission could take judicial knowledge of the fact that during March of 1947 economic conditions were such that opportunities for employment were very good. (Gartner v. Roth, 26 Cal.2d 184 [ 157 P.2d 361 ].) The fact that Laurio worked but intermittently in 1946, apparently because of ill health, does not, as a matter of law, make him an intermittent employee for 1947, and does not make his earning record for 1946 conclusive as to his earning power in 1947. The evidence was that in 1947 he was in excellent health, and working regularly and steadily. This serves to distinguish the ease of West v. Industrial Acc. Com., 79 Cal.App.2d 711 [ 180 P.2d 972 ], so strongly relied upon by petitioner. In that case the employee testified that she did not have the physical ability to work regularly, and therefore her past intermittent earnings were a guide to her earnings when injured. That is not this case.

In its closing brief the petitioner, for the first time, cites Labor Code, section 4457. It provides: “In the event the average weekly earnings of workmen associating themselves under a partnership agreement, the principal purpose of which is the performance of labor on a particular piece of work, are not otherwise ascertainable, they shall be deemed to be twelve dollars.”

This section is not applicable because, as already pointed out, the commission, under subdivision (a) of section 4453 had some evidence, weak though it may be, of the average weekly earnings. The above-quoted section is only applicable where the average weekly earnings “are not otherwise ascertainable.” Thus, even if section 4457 is applicable to a “partnership” of the type here disclosed, it has no application to the present case.

The award, subject to the provisions of section 4706 of the Labor Code, is affirmed.

Ward, J., and Bray, J., concurred.