Armstrong v. Indus. Comm'n of Wis.

• Decision Date: 16 November 1915
• Parties: ARMSTRONG v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

161 Wis. 530

154 N.W. 844

ARMSTRONG

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1915.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceeding by Ruth Armstrong, under Workmen's Compensation Act (Laws 1911, c. 50), to obtain compensation for the death of Hallie R. Armstrong, opposed by Wausau Street Railway Company. Compensation was awarded on appeal from the Industrial Commission of Wisconsin, and the employer and the commission appeal. Reversed and remanded, with directions to dismiss the complaint.W. C. Owen, Atty. Gen., Winfield W. Gilman, Asst. Atty. Gen., and Brown, Pradt & Genrich, of Wausau, for appellants.

Smith & Leicht, of Wausau, for respondent.

BARNES, J.

This action arises out of the accidental death of Hallie R. Armstrong while in the employ of the Wausau Street Railway Company and a claim for recovery made by the plaintiff under the workmen's compensation act, the employer and employé being subject to the terms of that act. The industrial commission denied compensation. The circuit court reversed this decision and awarded the plaintiff judgment, and defendants appeal.

The plaintiff and deceased were living together as husband and wife at and prior to the time of his death. A marriage ceremony had in form been gone through with, but the deceased at the time was incompetent to contract marriage because he had a wife or former wife from whom he had not been divorced one year. The plaintiff was not aware of the impediment and believed that she was lawfully married.

Subsection 4 of section 2394--10, Stats., provides:

“No person shall be considered a dependent unless a member of the family of the deceased employé, or one who bears to him the relation of husband or widow, or lineal descendant, or ancestor, or brother, or sister.”

It is conceded that the alleged marriage was void, and that the plaintiff was not the wife of deceased. The sole question involved is: Was she “a member of the family of the deceased” within the meaning of the statute quoted? We think the question is answered in the negative by the case of Severa v. Beranak, 138 Wis. 144, 119 N. W. 814. However innocent the plaintiff may have been, in law her relation with the deceased was an illicit one, and we think it would be neither good law nor good public policy to hold that such a relation established a family relation. It is probably true that a person not a wife or blood relation may be a member of a...