B. F. Sturtevant Co. v. O'Brien

• Decision Date: 10 February 1925
• Citation: 186 Wis. 10,202 N.W. 324
• Parties: B. F. STURTEVANT CO. ET AL. v. O'BRIEN ET AL.
• Court: Wisconsin Supreme Court

186 Wis. 10

202 N.W. 324

B. F. STURTEVANT CO. ET AL.

v.O'BRIEN ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1925.

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

Action by the B. F. Sturtevant Company and another, against Bridget O'Brien and the Industrial Commission to set aside award by latter. From judgment affirming award, plaintiffs appeal. Affirmed.

This is an appeal from a judgment affirming an award of the Industrial Commission.

This case involves an amendment to the Compensation Act. The Industrial Commission found that the appellant employer was liable under subdivision (4m) of section 102.09, Stats., where an employee had come to his death through accident in the course of his employment, without dependents, and ordered $1,000 to be paid into the state treasury for the benefit of persons entitled thereto under the act. The appellant employer and the insurance carrier brought an action in the circuit court for Dane county to set aside this award, and in that action the circuit court affirmed the award, and the employer and insurance carrier appeal to this court.

The provisions of the law before us for construction and determination are a portion of chapter 328, Laws 1923, known as subdivision (4m) of section 102.09, Stats., reading as follows:

“(4m) (a) Where the beneficiary under paragraph (a) of subsection (3) or (4) of this section is the wife or husband of the deceased employé and is wholly dependent for support, an additional death benefit shall be paid from the funds provided by paragraph (f) of this section for each child by their marriage living at the time of the death of the employé, and who is likewise wholly dependent upon him for support, such additional benefit to be computed from the date of the death of the employé according to the following schedule:

(b) For the child one year of age or under, the equivalent of five-sevenths of the average annual earnings of the deceased employé. For children in each successive yearly age group the amount allowed shall be reduced by one-fifteenth part of such five-sevenths of such average annual earnings, with no allowances for any child over fifteen years of age at the death of the employé unless such child be physically or mentally incapacitated from earning, in which case the commission shall make such allowance as the equities and the necessities of the case merit, not more however than the amount payable on account of a child under one year of age.

(c) A child lawfully adopted by the deceased employé and the surviving spouse, prior to the time of the injury, and a child not his own by birth or adoption but living with him as a member of his family at the time of the injury shall for the purpose of this subsection be taken as a child by their marriage. The provisions of this subsection applicable in the case of a child one year of age or under shall attach in favor of a posthumous child.

(d) Where the employé leaves a wife or husband wholly dependent and also a child or children by a former marriage or adoption, likewise wholly dependent, aggregate benefits shall be the same in amount as if the children were the children of such surviving spouse, and the entire benefit shall be apportioned to the dependents in such amounts as the Commission shall determine to be just, considering their ages and other facts bearing on dependency. The benefit awarded to the surviving spouse shall not exceed four times the average annual earnings of the deceased employé.

(e) Dependency of any child for the purposes of this subsection shall be determined according to the provisions of subsection (3) of section 102.11, in like manner as would be done if there was no surviving dependent parent.

(f) In each case of injury resulting in death, leaving no person wholly dependent for support, the employer or insurer shall pay into the state treasury such an amount, when added to the sums paid or to be paid on account of partial dependency, as shall equal four times the deceased employé's average annual earnings, such payment to the state treasury in no event to exceed one thousand dollars.

(g) The moneys paid into the state treasury pursuant to paragraph (f) of this subsection with all accrued interest is hereby appropriated to the Industrial Commission for the discharge of all liability for additional death benefits accruing under this subsection.

(h) The additional benefits for account of each child shall accrue at the rate of ten per cent. of the surviving parent's weekly indemnity. The Commission shall have authority to award such benefits to the surviving parent of such child, to his guardian or to such other person, bank or trust company for his use as may be found best calculated to conserve the interest of the child.

(i) For the proper administration of the funds available under paragraphs (f) and (g) of this subsection the Commission shall, by order, set aside in the state treasury suitable reserves to carry to maturity the liability for additional death benefit.

(j) The benefits payable under this subsection when added to the indemnity paid and due at the time of death and those benefits payable to the surviving spouse shall not in the aggregate exceed the maximum amount that might have accrued to the injured employé for permanent total disability if death had not ensued.”

Paragraph (a) of subdivision (3) and paragraph (a) of subdivision (4) § 102.09, above referred to, are as follows:

“(3) (a) A sum equal to four times his average annual earnings, but which, when added to the disability indemnity paid and due at the time of death, shall not exceed the maximum amount which might have accrued to him for permanent total disability if death had not ensued.

(4) * * * (a) Where the accident proximately causes permanent total disability, it shall be the same as if the accident had caused death.”

The appellant contends that the scheme enacted by the Legislature is unconstitutional for the reasons (1) that it was not passed in the manner required by section 8, art. 8, of the state Constitution; (2) that subdivision (4m), § 102.09, Stats., violates certain provisions and guaranties of the federal constitution.

Eschweiler, J., dissenting.

Harvey M. Burns and Hoyt, Bender, McIntyre & Hoyt, all of Milwaukee (Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, of counsel), for appellants.

Herman L. Ekern, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

CROWNHART, J. (after stating the facts as above).

[1] The Compensation Act of the state of Wisconsin was passed in 1911 (Laws 1911, c. 50). Its general purposes were very carefully considered, and its constitutionality was upheld in Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489. Since then this court has many times affirmed its beneficent purposes and declared the rule that it should be liberally construed to carry out such objects. This rule applies with equal force to the many amendments that have been added to the original act by subsequent legislation. The amendment under consideration is intended to carry out a wise public policy of spreading the risk or loss in certain cases so as not to bear too heavily upon the individual employer affected, and to prevent discrimination in the employment of certain classes. It recognizes that in the case of the death of an employee with a large family of small children, the compensation, in order to be adequate and equitable, must be much larger than in cases of dependency where only one person was dependent upon the deceased for support. It also recognizes that to assess larger compensationagainst the particular employer in such cases results in undue hardship on the employer, and very naturally might tend to induce employers to employ single men or men with small families, to the prejudice of those with larger families. This purpose of the Legislature seems to be plainly indicated in the legislation here challenged.

[2] But, no matter how beneficial or wise the legislation, it must be conceded that the Legislature must have complied with constitutional requirements in passing the act. Section 2, art. 8, Wisconsin Constitution, provides:

“No money shall be paid out of the treasury except in pursuance of an appropriation by law.”

[3] The act in question requires that certain funds be paid into the state treasury and paid out of the state treasury by direction of the Industrial Commission. It therefore comes clearly within section 2, art. 8, and the money can be paid out of the state treasury only in pursuance of an appropriation by law.

Paragraph (g) of subdivision (4m) of section 102.09, provides:

“The moneys paid into the state treasury pursuant to paragraph (f) of this subsection with all accrued interest is hereby appropriated to the Industrial Commission for the discharge of all liability for additional death benefits accruing under this subsection.”

The provision of the Constitution is positive and prohibitory, but the language of the statute uses apt and appropriate terms to constitute an appropriation by law, and we entertain no doubt that the Legislature complied with section 2, art. 8, in the amendment of the compensation statutes in question.

[4] In the passage of the act, however, the Senate did not have an aye and nay vote on the bill, and it is the contention of the appellants that the act is therefore invalid as in violation of section 8, art. 8, of the Constitution. Section 8, art. 8, provides:

“On the passage in either house of the Legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three-fifths of all the members elected to such house shall in all such cases be required to constitute a quorum...