Lloyd-McAlpine Logging Co. v. Whitefish

• Court: Wisconsin Supreme Court
• Writing for the Court: ESCHWEILER
• Citation: Lloyd-McAlpine Logging Co. v. Whitefish, 206 N.W. 914, 188 Wis. 642 (Wis. 1926)
• Decision Date: 12 January 1926
• Parties: LLOYD-MCALPINE LOGGING CO. ET AL. v. WHITEFISH ET AL.

188 Wis. 642

206 N.W. 914

LLOYD-MCALPINE LOGGING CO. ET AL.

v.WHITEFISH ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1926.

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

Action by the Lloyd-McAlpine Logging Company and others against Martha Whitefish, the Industrial Commission, and others to vacate award of Industrial Commission. From a judgment confirming award, plaintiffs appeal. Reversed, with directions.

September 7, 1923, one Paul Whitefish, an Indian of the Menominee Tribe then about 50, met his death in the course of his employment by the plaintiff Lloyd-McAlpine Logging Company, both subject to the Compensation Act. The defendants Martha and Isabella were his sole surviving children, aged then about 19 and 15, respectively. The defendant mother of these girls, also an Indian, a Pottawatomie, had left the deceased, though not divorced, in about 1919, and thereafter had lived with another Indian, also not a Menominee, Moshoquitt Cheequasit. The two girls were both mentally incapacitated from ever being of earning ability and for a long time had been kept, fed, and clothed each school year in the school maintained under the direction of the United States government on the reservation for the Menominee Indians in this state and out of the tribal or community funds, and according to the testimony of Mr. Allen, the superintendent of the United States Indian agency, the deceased Paul, also known as Petetah, Whitefish, and the two daughters had each an undivided interest in common with about 1,838 others in such tribal trust fund amounting to $2,500,000 as well as in other property; such respective interests, however, subject to being cut off by death. The deceased at times, as in this instance, was away from the reservation and worked for others, making no accounting of earnings to the agency. At the times he returned he appears to have lived in the house on the agency occupied by his parents. The deceased took the girls away from the school each June for the vacation and either returned them or they were brought back by the officials each September.

Mr. Allen, who applied to the Industrial Commission for an award on behalf of these children, testified on direct examination that the deceased fed and clothed the children during the vacations, and that they then lived with deceased, and that the girls came back in the fall with different clothing than that furnished during school times. He also testified that he visited them many times during the summers and found them with the aforesaid grandparents, but that on his only visit during the summer preceding the death the deceased was then away. On his cross-examination it appeared that he had no information as to what Paul Whitefish did with his earnings; had no personal knowledge of his buying clothes; or of their value; or of the value of the maintenance, if any; or of the deceased giving the children any money; also, that the grandparents, about 80 years old, earned a little or received rations from the government, and that the grandmother had received funds from time to time and used for the family's support from a small inheritance held for her by the government.

The mother of the children, who was, apparently, also an applicant for an award, testified that she took care of these children and away from the reservation during the summers except for short visits to the father. That he gave them some clothing, and in the last fall had given her, the mother, $5 realized by him from a mortgage on his horse to spend and spent for clothing for the children. It also appeared that the mother caused the difficulties about getting the children back to the school on several occasions. No formal denial of the application of the mother for an award as widow appears in the record.

The Industrial Commission made an award to the general guardian of the two daughters of $3,302.50, one-half to each. This actionwas brought to review such award. The court below confirmed it, except requiring the payment to be made to the treasury of the United States to be held and disbursed as directed by Fed. R. S. § 2108 (U. S. Comp. St. § 4092). From such judgment this appeal is taken.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

H. L. Ekern, Atty. Gen., and Mortimer Levitan and Suel O. Arnold, Asst. Attys. Gen., for respondent Industrial Commission.

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

[1] This award was made under the provisions of section 102.11 (3) (c), Stats., defining those conclusively presumed to be solely and wholly dependent for support upon a deceased employee. To support it in favor of these two children under the statute there must be in the record sufficient legal evidence to warrant the conclusion that they were living with Paul Whitefish at the time of his death, and further that there was no surviving dependent parent.

[2] There is presented no difficulty in regard to the latter. The surviving parent, the mother, undivorced, had left the deceased and for four years had been living with another Indian and away from the reservation. Clearly, though still the wife of deceased and a surviving parent, she was not living with the employee at the time of his death, as is expressly required by subsection (a) of the same statute, and therefore not a dependent parent.

[3] We are of the opinion that the evidence does not justify the finding that these two children were living with the deceased at the time of his death so as to bring them within the statute. It is undisputed that for years the expense of maintaining these children, including their food and clothing at school from early in September to early in June of each year, was borne by the community or tribal fund. The only cash contribution shown to have been made by the deceased was the sum of $5 which he gave to the mother to buy clothes for them. Her testimony was to the effect that she, not he, took care of them during...