BRICE, Chief Justice.
The above actions, for compensation under the Workmen’s Compensation Act, 1941 Comp. § 57-901 et seq., were brought separately by the widow and minor son respectively, of an employee of the defendant Rowan Drilling Company and its surety the United States Fidelity & Guaranty Company. They were consolidated and tried as one action with one judgment, from which this appeal has been prosecuted.
In this opinion reference will be made to the parties as follows: Claimant Mrs. Farley Wilson as “Mrs. Wilson”; claimant Billy Roy Wilson as “Billy Wilson”; the defendant Rowan Drilling Company as “defendant” ; and defendant United States Fidelity & Guaranty Company as “the surety”.
Substantially all of the facts were stipulated, and upon these stipulated facts the court made its decision, in substance as follows:
On May 18, 1947, Roy Wilson (the deceased) was employed by defendant as a well driller in charge of a drilling crew composed of himself and four others, and at that time he, with his crew, was engaged in the drilling of an oil and gas well in Lea County, New Mexico, for defendant. Deceased’s work was within the purview of the Workmen’s Compensation Act and the defendant surety company was defendant’s surety.
Because of the lack of housing facilities, Roy Wilson and the members of his crew resided in the city of Hobbs, about 30 miles from their place of work. Wilson and his crew worked the afternoon shift, or tower, from four o’clock P. M. until midnight.
“3. That the compensation of Roy Wilson was based upon an hourly pay rate of $1.80 for his eight hour shift, as contrasted to the $1.20 to $1.25 per hour paid to the other crew members and that, at the time of the fatal accident, Roy Wilson’s average weekly earnings were $92.50 per week.
“4. That it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to see that his crew Was fully staffed and to see that such crew arrived at the drill site before four o’clock P. M. and remained there throughout their eight hour work period; and that it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to either transport himself and the members of his crew to and from the drill site or to arrange for their transportation by some other member of his crew.”
Roy Wilson had the authority and responsibility under his contract of employment to hire and fire the members of his crew. Under this authority he fired thr^e members of the crew on May 16th and employed two others on May 17th, and on the morning of May 18th he employed another. The last mentioned employee (Tidwell) had no means of transportation and was advised by Wilson that he would pick him up and take him to the drilling site that afternoon. Wilson arranged with the workman Compton to furnish his car for this transportation, and on the afternoon of May 18, 1947, while Wilson and the four members of his crew were going from Hobbs to the drilling site over the usual travelled way in the Compton car, they collided with another vehicle which resulted in the deaths of Wilson and three of the members of his crew.
“8. That Roy Wilson had begun the performance of the duties of his employment when he hired the new man in the City of Hobbs on the morning of the fatal day, that he was then acting within the scope of his employment and in the furtherance of the business of his employer; and that he was engaged in the performance of the duties of his employment and in the furtherance of the business of his employer at the time of the fatal accident.”
“9. That the employer did not pay any mileage or other transportation allowance as such, but from the wage scale paid the deceased driller at the time of his death, said wage rate contained reimbursement to the driller for extra work performed by him in addition to his duties as driller at the site of the well; that upon an hourly basis, the compensation of Roy Wilson and the other members of his crew commenced when they arrived at the drill site at four o’clock in the. afternoon and ended when they completed the midnight tower; that they were not paid any compensation for the time consumed in going to and from their homes in Hobbs to the drill site except for the additional compensation in this paragraph above mentioned; and although the employer did not dictate, supervise or in any way control the arrangements made by Roy Wilson and the members of his crew for their transportation to and from the drill site, the employer had knowledge of and acquiesced in the arrangements which had been made by Roy Wilson for the daily transportation of himself and his crew and the employer looked to Roy Wilson as part of his duties and responsibilities of his employment to see to it that a full crew arrived at the drill site each tower in time to start work at four o’clock.”
The collision that caused the death of Wilson was not due to any negligence of -the defendant.
“11. That Farley Wilson, claimant in Cause No. 7031, is the surviving widow of the said Roy Wilson; that she was living with him at the time of his death and was actually dependent on him for support; and that no children had been born of their marriage.”
“12. That Billy Roy Wilson, claimant in Cause No. 7030, is the son of the said Roy'Wilson by a former marriage; that he was approximately 13 years of age at the time of the death of the said Roy Wilson and was actually dependent upon him for support; that said minor dependent child resides with his mother, Mrs. W. B. Thompson, who appears in said cause as his next friend and who was formerly the wife of the said Roy Wilson.”
Funeral expenses in the amount of $150 and attorney’s fees in the amount of $700 were allowed, to which no objection has been made.
Upon these facts the trial court concluded that Roy Wilson’s death was accidental and arose out of and in the course of his employment; and that the claimants were entitled to workmen’s compensation as provided by law. That the two claimants were entitled to only the combined award of compensation that would have been made to a surviving widow who was the mother .of the dependent child, and -not the separate compensation provided for in the statute in the cases where there was either no widow but a dependent child left, or where there was a dependent child and no widow left.
The court divided the compensation as follows: “(a) To Farley Wilson, dependent widow and claimant in Cause No. 7031, and to Billy Roy Wilson, dependent child and claimant in Cause No. 7030, collectively, 45 per centum of the average weekly earnings, but not to exceed $18.00 per week, for a period of 300 weeks, commencing May 18, 1947, and continuing, subject to the limitations of the Workmen’s Compensation Act, for such period of 300 weeks; and that such compensation should be apportioned between the said Farley Wilson, widow, and Billy Roy Wilson, child, in the following manner: 40/65ths of such amount to Farley Wilson and 25/65ths of such amount to Billy Roy Wilson; and that Mrs. W. B. Thompson, mother of' such child, should' be appointed by the Court to receive the same for the benefit of the said Billy Roy Wilson.”
The defendant and the surety admit that under decisions of this court, the judgment of-the district court is correct if the trial court’s findings of fact numbers 4, 8 and 9 are supported by substantial evidence. See McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166.
■ Findings of fact numbers 4, 8 and 9 are attacked upon the ground, as it is asserted, that they (or a vital portion of each) are not supported by substantial evidence. We have copied these findings in full for convenience.
The following part of finding No.. 4 is. attacked: “* * .* and that it was the duty and responsibility of Roy Wilson, under his contract of employment as the driller in charge of such crew, to either transport himseif and the members of his crew to and from the drill site or to arrange for their transportation by some other members of the crew.” (Appellants’ emphasis.)
The court based finding No. 4 on the following stipulation of fact in the record: “That it was his duty, the duty and responsibility of the man Wilson as the driller in charge of the crew to keep his crew fully staffed and to see that his crew arrived at the drill site at approximately 4:00. o’clock in the afternoon and' remained there through their eight hour working period; that it was also his duty to either furnish his own car or to see that some other member of the drilling crew furnished a car pursuant to their arrangement, car pooling arrangement, to transport the entire crew to the drill site; that such practice is customary in the oil fields of Lea County, New Mexico, for the driller in charge of the crew to be responsible for maintaining a full crew and seeing that it arrives at the drill site; that this driller was paid approximately $1.80 an hour as compared to $1.20 ■or $1.25 an hour paid the other members of his crew — that is, approximately 20 per cent more.”
.The only difference between the finding and the stipulation seems to be the added inference that the duty and responsibility •of seeing that the crew was fully staffed and that they arrived at the drill site before four o’clock P. M. and remained there throughout their eight hour work period, arose out of his contract of employment.. Now if the duty and responsibility of Wilson to do these things did not arise out of his employment contract, then from whence came it? The inference is not only reasonable, but it necessarily follows' from the facts stipulated. We can conceive of no •other source for the duty and responsibility imposed upon deceased other than his contract of employment. From whence came his authority to “hire and fire” the members of his crew? From his contract of employment, of course. The same infer■ence applies to the duty of seeing that his crew was fully staffed and arrived on time and remained to do> their work. To perform these duties, he had to secure transportation and take his crew to the drilling site, unless one or more had their own transportation. Even in that case, he was duty bound to see that they arrived on time and remained for their' work.
In other words, his employment contract provided.that he should employ for the defendant at its expense, a drilling crew, of whom 'he was the head; that he should have the crew present at a specified time to work on an eight hour shift. While performing any of these duties, he was acting in the course of his employment. The suggestion that “no part of the transportation was of any concern to the employer” is obviously not correct. Without the transportation, the crew could not go tp the drilling site, and without a crew the well could not be drilled. Finding No. 4 is. supported by substantial evidence. •
It is asserted that the following portion of finding No. 8 is not supported by substantial evidence: “* * * and that he .was engaged in the performance of the duties of his employment and in the furtherance of the business of his employer at. the time of the fatal accident.”
This contention is settled adversely to defendant’s contention by our conclusion regarding finding of fact No. 4..
The following portion of finding No. 9, it is asserted, is without supporting evidence :
“(a) That the employer did not pay any mileage or other transportation allowance as such, but from the wage scale paid the deceased driller at the time of his death, said wage 'rate contained reimbursement to the driller for extra work performed by him in addition to his duties as driller at the site of the well; that upon an hourly basis, the compensation of Roy Wilson and the other members of his crew commenced when they arrived at the drill site at four o’clock in the afternoon and ended when they completed the midnight tower; they were not -paid any compensation for the time consumed in going to and from their homes in Hobbs to the drill site except for the additional compensation in this paragraph above mentioned * * *.
“(b) * * * and although the employer did not dictate, supervise or in any way control the arrangements made by Roy Wilson and the members of his crew, for their transportation to and from the drill site, the employer had knowledge of and acquiesced in the arrangements which had been made by Roy Wilson for the daily transportation of himself and his crew and the employer looked to Roy Wilson as part of his duties and responsibilities of his employment to see to it that a full crew arrived at the drill site each tower in time to start working at four o’clock.”
As we view it, there were certain duties and responsibilities attached to the position of head driller. As head driller, he was paid a higher hourly wage than was paid to the other crew members. His compensation, it is true, was measured by the hours drilling was in progress, but this does .not necessarily imply that Wilson was not paid for the performance of the other duties which as head driller, it was stipulated by the parties, he was required to perform. If he had not been employed at higher wages it cannot be conceived that he would have performed these extra services without pay; nor can we conceive that the-parties to his employment did not intend that the wages paid him, though measured by drilling hours, were in part payment for the performance of those extra duties regarding the employment of crews, and transporting them, or seeing to it that they were transported, to the drilling site. There-can be no other reasonable inference.
When parties stipulate the facts of a case they are not only bound by them, but by all reasonable inferences the district court may draw from them. Indeed, the stipulated facts alone support the judgment. The findings of the trial court that Wilson’s, -employment contract included the duties and responsibilities of hiring and firing-his crew, and having them at the drill site at four o’clock each afternoon, were based on more than inferences. They were stipulated facts; for these duties and responsibilities could only arise out of a contract. The facts surrounding the accidental death of Wilson and other members of his crew, are not in the least complicated. Aside from the findings of the court, they are stipulated, substantially as follows:
Wilson, acting under authority from defendant company, fired three members of his crew. These he had to replace. He hired two men on the 17th, and on the morning of the 18th he hired a third at Hobbs,' who agreed to commence work at four o’clock that afternoon. Wilson arranged with Compton, a member of the ■drilling crew, to furnish a car for transporting the crew to the drilling site on that day. The third crew member employed by Wilson did not have transportation and did not know the location of the drilling site. Wilson informed him that he, Wilson, would pick him up at three ■o’clock that afternoon and take him to the drill site, so that he could start work at f.our o’clock. Pursuant to this arrangement, Wilson got in Compton’s car (theretofore arranged for by him), and they drove around and picked up the crew members at designated places, including the new man, Tidwell, and started to the drill site. On the way Wilson and three members of his crew were killed in a collision accident.
It was Wilson’s duty and responsibility to have himself and four members of his crew at the drill site by four o’clock. In performing this duty he arranged with Compton to furnish his car, then gathered up his crew and started on his way to the drill site. From the time he got in Compton’s car until he would have arrived at the drill site had he not been lulled, he was acting in the course of his employment, in that he was seeing to it that the crew would be on hand at four o’clock to begin work.
It is a general rule, and SO' provided by statute in this state, that an employe is not in the course of his employment while going to and returning from his work. But there are many exceptions to the rule.
We held in McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867, 870, that an employe who was paid a day’s wages while en route in his own automobile from Albuquerque to Roswell to work at Roswell, was in the course of his employment at the time he was killed while en route. We stated the rule to be: “An accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto
We stated:
“It is undisputed that the deceased was in the employ of the appellant Dorlac at and before the time he was directed to proceed to Roswell, New Mexico, to take charge of a plastering job that appellant Dorlac had under contract. The deceased received his regular wages on the day of the accident, and was to receive pay as a foreman the following day if he arrived at Roswell in time to perform a day’s work. * * *
“There are exceptions to this general rule as where the employee’s duties require him to travel from one job to another. We think the case at bar comes within the exception to the general rule, and that the deceased was discharging a duty contemplated by the terms of his employment in going from Albuquerque,. New Mexico^ to Roswell, New Mexico, and that the injuries sustained by him were in the course of his employment.”
This case is not an exact one, but it holds that one may be away from his usual employment, en route to it, in his own automobile, and still in the course of his employment.
In Rafferty v. Dairymen’s League Co-op. Ass’n (Work.Comp.Bur.N.J.) 200 A. 493, 496, 16 N.J.Misc. 363, four exceptions are stated, ■ two of which are in point here. They are:
“An employe, authorized or required to use an automobile by his employer in the fulfilling of his contract of service, is still within the course of his employment while driving from the point of last call to his home where the car is garaged. * * *
“Necessary travel while on special duty after regular working hours. In his ordinary work, the employe knows that he has to be at the proper place at a specified time to begin his services and continue them until a set time.. Prior to the time set for beginning the service and'after the-services are ended for the day, the em-ploye’s time is his own, and he may dispose of it as' he pleases. But if, while so off" duty from his regular employment, he is. called to do* an errand or sent on a mission i by the employer, the courts which have' spoken on the subject hold it is a special! service begun the moment the employe leaves his home, or the place where the call comes to him, and ended only with his return. * * * ”
Olson Drilling Co. v. Industrial Commission, 386 Ill. 402, 54 N.E.2d 452, 454, is exactly in point. ' The facts are substantially as follows: Wolf was a well driller in: charge of a drilling rig. His tower began at. midnight and continued to eight A. M. He-was head driller and responsible for what happened at the drilling site. He drove' to and from hi's work each day in his own. car, or his son’s. He was paid only for work at the rig. One of his duties was. to keep a report of the work and to deliver these reports to the office of his. employer at Olney on his way home. In delivering the reports “he traveled the same route as he traversed in returning from the well to his home until he reached Olney and passed a shoe factory.” From there he had to take a different route home. After completing his eight hour shift, he started home in his son’s car, and before he reached Olney and while on his usual route home, he was accidentally injured .in a collision with another car. He received no extra compensation for travel, car expense, or delivering the report. The •court said:
“The general rule is that an employment ■does not begin until the employee reaches the place where he is to work and does not continue after he ha's left the place of his employment. * * * This rule, however, is not applicable where the duties •of the employee necessarily take him away from the premises of the employer. * * Under such circumstances the employer may still be liable if the employee is injured and the injury arises out of and in the course of his employment. * * * Whether an employee who is on his way to or from his place of employment is in the line of his employment depends upon the circumstances of each case and is largely a question of fact. * * * .
“Wolf was employed to take the reports to the office of his employer in Olney and for this purpose it was necessary to use an automobile. If the work of the employee creates the necessity for travel, he is in the course of his. employment. Persons using the highway are subjected to certain traffic risks and one of them is the danger of collision. The perils of modern-day travel upon the highways are well known. Risk of accident is an ever-present menace. When it is necessitated by the employment the risks 'incidental thereto become, risks of the employment and remain so as long as the employee is acting in the course of his employer’s business. »1* 'I' ^
“In the instant case Wolf was using an automobile as a necessary adjunct to his employer’s business and was performing services growing out of and incidental to ■his employment, and the injuries did in consequence arise out of and in the course of his employment.”
In the present case it was Wilson’s duty to see that his crew was at the drill site by four P.M. It was known to his employer that this duty required the use of an automobile. The employer did not furnish one, or pay specifically for this service; but in the performance of this duty Wilson arranged for the automobile, gathered up his crew, and was on the highway with them, going to the drilling site, when he was accidentally killed when the car he was in collided with another.
Each case must be decided upon its own facts; but the facts of the two cases are as near identical as ordinarily can be found. In- each a head driller was the employee; each had a duty to perform for his employer after the usual work hours, in the performance of which it was necessary to use an automobile; neither was furnished an automobile. or paid extra for its use, though necessary in the performance of a duty; neither was paid extra for the additional work, and one was killed and the other injured in automobile accidents. Differences can always be pointed out in cases, but no substantial difference appears here.
The rule and some exceptions are stated in Gallman v. Spring Mills, 201 S.C. 257, 22 S.E.2d 715, 717, as follows:
“As a 'general rule, an employee going to or coming from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment, and therefore an injury suffered by accident at such time does not arise out of and in the course of his employment. There are two universally recognized exceptions to this rule *- * ^
“These exceptions are: (1) Where in going to and returning from work, the means of transportation is provided by the employer, or the time thus consumed is paid for or included in the wages. (2) Where the employee, on his way to or from his work, is still charged with some duty or task in connection with his 'employment. * * * ”
Wilson was charged with the duty of seeing to it that the crew was at the drilling site at four o’clock; which duty he was performing when accidentally killed.
Exception No. 2 mentioned by the South Carolina court was approved by us in McKinney v. Dorlac, supra [48 N.M. 149, 146 P.2d 869], where we said that an injury to an employe arises in the course of his employment if at a place where he may reasonably be, “and while he is reasonably-fulfilling the duties of his employment or engaged in doing something incidental' \thereto\.”
When Wilson was killed he was fulfilling-a duty of his employment, which was to see that his crew was at the drill site by four o’clock. It is insisted that his regular-work was drilling the well. But the court found that his regular work under his contract included seeing to it that his crew was on hand at the proper hour; and he could only be certain of this by gathering them together and bringing them himself. He was doing more than “something incidental” to his employment when he was killed, although that would have been sufficient. We cited in the McKinney case with approval on this point, Young v. Dept. of Labor & Ind., 200 Wash. 138, 93 P.2d 337, 339, 123 A.L.R. 1171, in which the Washington court said: “The test adopted by this court for determining whether an employee is at a given time in the course of his employment is whether the employee was at the time engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer, or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest. McGrail v. Dept. of Labor & Industries, 190 Wash. 272, 67 P.2d 851, and cases therein cited.”
But it is said that Wilson had to come to the drilling site to perform his own duties. Quite true, but ordinarily he would not be burdened with the duty of seeing to it that the other drillers were there. None of the others had a comparable duty. Nor does it matter that Wilson was going to the drilling site himself; if he had a duty to perform concurrent with it, Clawson v. Pierce-Arrow Motor Co., 231 N.Y. 273, 131 N.E. 914, particularly if, as in this case, the principal purpose of his trip was to deliver four drillers at their place of work before four o’clock; a duty he either had to perform or see that it was done by others, or by the workmen themselves. The overall burden was on him to see to it that the men were on the job at four o’clock; how he was to perform the duty was within his reasonable discretion.
The Supreme Court of Colorado in O. P. Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102, 1103, in holding that a lawyer traveling in his own automobile without extra pay for his time or traveling expenses, was in the course of his employment in carrying files from Denver to his home at Greeley to be used in writing opinions. The Colorado court said: “If the accident occurs while the employee is doing something which the employer has directed and under the contract of employment may require the employee to do, we think that while the employee is doing it he fairly may be said to be acting in the course of his. employment, and, if he is doing the thing directed to be done, as required, or if the manner of its doing is not specified, in a manner that is within the limits of a reasonable discretion on the .part of the employee, then a resulting accident arises out of the employment and may fairly be said to be the result of a hazard incident to. it.”
Also see: Security State Bank of Sterling v. Propst, 99 Colo. 67, 59 P.2d 798; Comstock v. Bivens, 78 Colo. 107, 239 P. 869, both cited in the Skaggs case.
“Having the authority to determine the-time, place and manner of performing his-‘special mission,’ he has the right to compensation to the same extent as if he had been sent directly to the park by the Superintendent. His visit to Ladera Park was reasonably contemplated by virtue of his official. duties.” Dauphine v. Industrial Comm., 57 Cal.App.2d 949, 135 P.2d 644, 646.
Also see, Mathews v. Naylor, 42 Cal.App.2d 729, 109 P.2d 978; Fenton v. Industrial Comm., 44 Cal.App.2d 379, 112 P.2d 763.
In Kahn Brothers Co. v. Industrial Comm., 75 Utah 145, 283 P. 1054, the general rule was stated and then the exception, as follows: “An exception to this rule,. however, is where an employee, either on his employer’s or his own time, is upon •some substantial mission for the employer growing out of his employment. In such cases the employee is within the provision •of the act.”
Also see the following: Allison, Inc., v. Bolling, 192 Okl. 213, 134 P.2d 980; Morgan v. Industrial Comm., 92 Utah 129, 66 P.2d 144; Sweatt v. Allen, 145 Fla. 733, 200 So. 348; Irwin-Neisler & Co. v. Industrial Comm.., 346 Ill. 89, 178 N.E. 357; Commercial Casualty Insurance Co. v. Strawn, Tex.Civ.App., 44 S.W.2d 805; Messer v. Manufacturers Light & Heat Co., 263 Pa. 5, 106 A. 85.
We. are committed to the doctrine that the Workmen’s Compensation Act must be liberally construed, and reasonable •doubts resolved in favor of employees. Points v. Wills, 44 N.M. 31, 97 P.2d 374; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342; Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000. So construing the act, we conclude that when an employee is sent by his employer on a .special mission away from his regular work; or by the terms of his contract of •employment he is burdened with a special •duty incidental to, but aside from the labor upon which his wages are measured; while •on such mission, or in- the performance of such. duty, the employee is acting within the course of his employment; notwithstanding no wages or remuneration is specified as applicable to such mission or duty; and notwithstanding an automobile is required for such performance which is furnished by the employee without cost to the employer. If an employee is accidentally injured while on such mission, or in the performance of such duty, the injury arises out of and in the course of his employment. Such is the case here.
The claimant Mrs. Wilson asserts, by cross-appeal, that she is entitled to judgment for 40% of $16 per week for 300 weeks; and the claimant Billy Wilson asserts that he is entitled to judgment for 25% of $18 per week for 300 weeks, and that the trial court erred in entering its judgment for less amounts. The statutes upon which our decision must rest, are the following:
“(j) The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of this act:
“1. A child under eighteen (18) years of age or incapable of self-support and unmarried, actually dependent upon the deceased.
“2. The widow, only if living with the deceased at the time of his death, or legally entitled to be supported by him and actually dependent, including a divorced wife entitled to alimony and actually dependent.” Sec. 57-912, N.M. Sts. 1941.'
“(a) For total disability the workman shall receive sixty (60) per centum of his earnings, not to exceed a maximum compensation of eighteen ($18.00) dollars per week, nor to be less that a minimum compensation of ten ($10.00) dollars per week, during the period of such disability but in no event to exceed a period of five hundred fifty (550) weeks; Provided, however, that-where earnings are less than ten dollars ($10.00) per week then the compensation to be paid such workman shall be the full amount of such weekly earnings.
“In case death proximately results from the injury within the period of one (1) year, compensation shall be in the amounts and to the persons as follows: * *- *
“(2) If there are dependents at the time of the death, the payment shall consist of not to exceed one hundred and fifty dollars ($150.00) for funeral expenses and the percentage hereinafter specified of the average weekly earnings, subject to the limitations of this act, to continue for the period of three hundred (300) weeks from the date of injury of such workman; Provided that the total death compensation payable in any of the cases hereinafter mentioned, unless otherwise specified, shall not be less than ten ($10.00) dollars per week nor more than eighteen ($18.00) dollars per week.
“If there be dependents entitled thereto, such compensation shall be paid to such dependents or to the person appointed by the court to receive the same for the benefit of such dependents in such portions and in such amounts as the court, bearing in mind the necessities of the case and the best interests of such dependents and of the public may determine, to be computed on the following basis, and distributed to the following persons:
“1. To the child or children, if there be no widow or widower entitled to compensation, twenty-five (25) per centum of earnings of deceased, with ten (10) per centum additional for each child in excess of two. (2) with a maximum of sixty (60)'per centum, to be paid to their guardian.
“2. To the widow or widower, if there be no children, forty (40) per centum of earnings not to exceed a maximum compensation of sixteen dollars ($16.00) per week.
“3. To the widow or widower, if there be one child, forty-five (45) per centum, of earnings.” Sec. 57-918, N.M.Sts.1941.. Sec. 57-918, was amended in 1947, effective after the death of deceased and in 1949..
The child here is not entitled to compensation in an amount equal to 25% of the-earnings of the deceased for the obvious-reason that the deceased left a widow. No specific amount is provided as compensation to be paid a child under such circumstances. If the child is entitled to. anything as compensation separate from that of the widow it would be under subsection (a) (2) 3 of 57-918, supra, as modified (if it is) by the second paragraph of 57-918(a) (2) supra, which provides for a division of the compensation between those entitled to it.
Some reference is made to the question of whether a child has a direct property interest in the award, in Neeley v. Union Potash & Chemical Co., 47 N.M. 100, 137 P.2d 312, but the question was not decided. No contention is made by any party that the decision of the trial courl is not correct if the total allowance should be based on Sec. 57-918(a) (2) 3. The liability of the employer is limited in the present case to 45% of the earnings, not to exceed $18 per week for both the widow and one child, and the defendant and surety agree this is correct. The exact situation was not provided for. We will not decide the question as to the rights of the child under the statute, as neither claimant raises it, if we assume that the amount of compensation for both is limited to 45% of the workman’s wages, not to exceed $18 per week, as the trial court held. A fee of $800 is allowed .claimants’ attorneys for services in this court.
The judgment of the district court should be, and is affirmed and it is so ordered.
LUJAN and COMPTON, JJ, concur.