Duluth-Superior Milling Co. v. Indus. Comm'n

• Decision Date: 12 October 1937
• Citation: 226 Wis. 187,275 N.W. 515
• Parties: DULUTH-SUPERIOR MILLING CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

226 Wis. 187

275 N.W. 515

DULUTH-SUPERIOR MILLING CO. et al.

v.INDUSTRIAL COMMISSION et al.^*

Supreme Court of Wisconsin.

Oct. 12, 1937.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Proceeding under the Workmen's Compensation Act by Frances Lindsay, claimant, for the death of her stepfather, John Blaney, employee, opposed by the Duluth-Superior Milling Company, employer, and its insurance carrier. From a judgment of the circuit court affirming the award of the Industrial Commission for compensation, the employer and its insurance carrier appeal.-[By Editorial Staff.]

Reversed, with directions.

This appeal is from a judgment of the circuit court for Dane county, entered February 24, 1937, confirming an order of the Industrial Commission, dated June 4, 1936, ordering the appellants to pay to the respondent Frances Lindsay certain sums as compensation and death benefits for the death of her stepfather, John Blaney, while in the employ of the appellant, Duluth-Superior Milling Co. In 1901, Mr. Blaney was married to Mary Delaware, the widowed mother of the respondent Frances Lindsay. Mrs. Delaware had four children. Mr. Blaney, his wife, and the four children, lived together as a family. When Mrs. Lindsay married, she left home. Her husband died in 1918. About this time Mrs. Lindsay purchased a house in which she lived with her two children, her mother, stepfather, and two brothers. The brothers married and left home in 1922 and 1929. Mrs. Delaware-Blaney died in 1931. At that time, Mrs. Lindsay was 45 years of age, her son was 20 years, and her daughter, 17 years. Upon the death of Mrs. Delaware-Blaney, Mr. Blaney and Mrs. Lindsay entered into an oral agreement, in accordance with which Mrs. Lindsay provided the home out of her own funds, paid the taxes, made the meals, and cared for the house. In return Mr. Blaney paid the current household expenses. This arrangement continued for 5 years until Mr. Blaney's death. Mr. Blaney was fatally injured on February 28, 1936, while in the course of his employment by the Duluth-Superior Milling Company. His earning during the year preceding his death were $1,440. It was agreed at the hearing before the examiner that Mr. Blaney contributed on account of household expenses, $60 a month, or a total of $720 during the year immediately preceding his death.

The examiner found:

“That although the applicant was not a blood relative of the said John Blaney she was at the time of the injury living in the same house with him and she and her children together with the said John Blaney constituted a family group; that the applicant was dependent upon the said John Blaney for support at the time of his injury and death and the examiner concludes that within the meaning of section 102.51 was a member of the family of the said John Blaney and as such is entitled to death benefit;

“That the applicant was not solely and wholly dependent upon the said John Blaney for support at the time of his injury and death but was only partially dependent therefor; that the extent of her dependencyis limited to four times the contribution to her support by the said John Blaney and the sum of $2880 fairly and justly represents the aid to support from the said John Blaney which the said applicant might reasonably have anticipated from him, but for the injury which resulted in his death; ***”

On these findings the examiner entered an order directing payment of the sum of $2,880. Upon petition for review, the commission affirmed the award as made by the examiner. The circuit court for Dane county affirmed the award of the commission. The employer and its insurance carrier bring this appeal.

Otjen & Otjen, of Milwaukee, for appellant.

Orland S. Loomis, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Hughes & Anderson, of Superior, for respondent Frances Lindsay.

MARTIN, Justice.

[1] The facts are not in dispute. This being so, the question here is one of law. Gunderson v. Industrial Commission et al., 218 Wis. 248, 250, 260 N.W. 636;Gomber v. Industrial Commission et al., 219 Wis. 91, 93, 261 N.W. 409.

Section 102.48, Statutes 1935, provides in part:

“If the deceased employe leaves no one wholly dependent upon him for support, partial dependency and death benefits therefor shall be as follows:

“(1) An unestranged surviving parent or parents, residing within any of the states or District of Columbia of the United States, shall receive a death benefit of twelve hundred dollars. ***

“(2) In all other cases the death benefit shall be such sum as the commission shall determine to represent fairly and justly the aid to support which the dependent might reasonably have anticipated from the deceased employe but for the injury. To establish anticipation of support and dependency, it shall not be essential that the deceased employe made any contribution to support. The aggregate benefits in such case shall not exceed twice the average annual earnings of the deceased; or four times the contributions of the deceased to the support of such dependents during the year immediately preceding his death, whichever amount is the greater. In no event shall the aggregate benefits in such case exceed the amount which would accrue to a person solely and wholly dependent.”

Subsection (2) of section 102.51, Statutes 1935, provides:

“No person shall be considered a dependent unless a member of the family or a spouse, or a divorced spouse who has not remarried, or lineal descendant or ancestor, or brother or sister of the deceased employe.”

To sustain the award, actual dependency must be proven, and the applicant must also prove that she was a “member of the family” of the deceased.

[2] It is contended by respondents that the stipulation entered in the record by the examiner to the effect “that there was a monthly contribution by John Blaney during the year immediately prior to the injury of $60 to the support of the applicant, Frances Lindsay; a total of $720,” was a net contribution of said amount to the support of Mrs. Lindsay. There is no basis in the evidence from which an inference might be drawn that the total contribution of $720 made by the deceased the last year immediately preceding his death was in addition to the current bills incurred incidental to the running of the house. Mrs. Lindsay testified in part as follows:

“Q. Now, before your mother died, you and she and your stepfather and your children lived together? A. Yes.

“Q. And did your stepfather turn over to her the money to run the house, or how was that done? A. We did it together, I think. We had a check account at that time.

“Q. And she used out of his income money to help run the house? A. Yes, she made out the checks.

“Q. And you lived there? A. Yes.

“Q. And you got some of your living out of his money before your mother died? A. Yes.

“Q. And after your mother died, he started in and paid the bills? A. Yes.”

She further testified:

“Q. Were you actually dependent upon your stepfather during the year before he died, and at the time of his death, for your support? A. Yes, sir.

“Q. You did, in fact, depend on that? A. Yes, sir.

“Q. And that had been true for several years? A. Well, I would say for 18 years, we lived together with the understanding; I had the home and he paid the upkeep.”

It appears that Mrs. Lindsay used for herself and the payment of taxes on her home out of her own funds approximately $125, during the year prior to the death of Mr. Blaney. At the time of Mr. Blaney's death, Mrs. Lindsay's home was free of encumbrances, and of the value of about $2,000. At that time, she had approximately $300 in cash, and household furniture and furnishings worth about $300. Jean Lindsay, born August 27, 1914, and Claire Lindsay, born April 30, 1918, lived in the home with their mother and her stepfather at the time of Mr. Blaney's death, and they had so lived for 18 years; these two children owned real estate worth about $2,300 at the time of Mr. Blaney's death. There was an income of approximately $120 per year, which was used for the benefit of the children.

[3] Both the examiner and the commission failed to make any allowance for the cost of the accommodations, services, and the food actually received and consumed by Mr. Blaney. Under the decisions of this court, the award in the instant case must be based on the difference, if any, between the total contribution of $720, made by the deceased during the last year preceding his death, and the cost of his support during said year. Wisconsin Mut. L. Co. v. Industrial Commission, 184 Wis. 203, 199 N.W. 221;Thunder Lake Lumber Co. v. Industrial Commission, 188 Wis. 418, 206 N.W. 177;Zurich Gen. Acc. & Liability Co. v. Industrial Commission, 196 Wis. 159, 216 N.W. 137, 220 N.W. 377.

The appellants contend that the relationship was contractual, and therefore there is no liability under the compensation act, and in support of their contention cite Illinois Steel Co. v. Industrial Commission, 184 Wis. 273, 199 N.W. 154, 155. The facts in that case are readily distinguishable from the facts in the instant case. In that case, in 1907 Nelson commenced to board with the claimant and her husband at an agreed weekly rate. The family then consisted of the claimant, Mrs. Peterson, her husband, and their two children. In October 1912, Mr. Peterson died. Thereafter, Mrs. Peterson, her children and Nelson moved to...