Pillsbury

In this proceeding under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., the Deputy Commissioner awarded death benefits to persons found to be dependents of a harbor worker named Robert Johnson who was accidentally killed in the course of his employment on a vessel undergoing repairs in Los Angeles harbor. Suit to enjoin the award was instituted by the employer and its insurance carrier, and the *875 case is here on appeal from a judgment of dismissal. The principal contentions of the appellants are (1) that the showing of dependency was insufficient to support an award, and (2) that the deputy commissioner erred in his determination of the average weekly wage of the deceased worker.

Johnson, who was a colored boy and unmarried, met his death December 6, 1945. He was twenty-one years of age at that time, having been born May 27, 1924. His parents and five small brothers and sisters lived in New Orleans from which place the deceased had come to the Pacific coast to seek work. For the convenience of witnesses the claim of the mother on behalf of herself and the minor children was forwarded by Deputy Commissioner Pillsbury to the deputy…

(dissenting).

The court’s opinion fails to mention the significant admissions and prayers of Pillsbury’s answer to the complaint below and second answer to the motion for summary judgment asking that the case be resubmitted to him “to make a new finding with reference to the deceased’s average weekly wage and to adjust the amounts of the awards accordingly.”

It is apparent that Pillsbury either had not applied the right formula or, if the correct formula, that he had improperly calculated the wage. These unconsidered admissions and prayers of Pillsbury’s two answers are:

“Further answering the libel the respondent deputy commissioner avers that as shown by the transcript of testimony taken before Deputy Commissioner Henderson on June 4, 1946, and July 16, 1946, the findings of fact in the compensation order complained of except the finding that the deceased’s average weekly wage exceeded $37.50, are supported by evidence and under the law such findings are final and conclusive and not subject to judicial review * * (Emphasis supplied.)

“Wherefore, this respondent prays that judgment be entered herein remanding the case to the respondent, Deputy Commissioner Pillsbury, to make…