Milwaukee Basket Co. v. Indus. Comm'n of Wis.

• Court: Wisconsin Supreme Court
• Writing for the Court: ESCHWEILER
• Citation: Milwaukee Basket Co. v. Indus. Comm'n of Wis., 173 Wis. 391, 181 N.W. 308 (Wis. 1921)
• Decision Date: 08 February 1921
• Parties: MILWAUKEE BASKET CO. ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

173 Wis. 391

181 N.W. 308

MILWAUKEE BASKET CO. ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Feb. 8, 1921.

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

Application by Francisca and August Wiecki, parents of John Wiecki, for an award under the Workmen's Compensation Act for the latter's death, opposed by the Milwaukee Basket Company, employer, and Employers' Mutual Liability Insurance Company. The Industrial Commission made an award, and the employer and the insurer brought an action for review. From a judgment affirming the award, the plaintiffs appeal. Affirmed.

One John Wiecki received an injury resulting in his death while in the employ of the Milwaukee Basket Company. His parents, Francisca and August Wiecki, made application for compensation under the Workmen's Compensation Act.

Deceased was 19 years of age and unmarried at the time of the accident January 15, 1919. The Commission found that the deceased and five other children had been living as members of the family during the year preceding the accident. The two youngest, aged 13 and 6, attended school. Four of the children and the father were working.

The earnings during the preceding year were as follows:

+-----------------------------------------------------------------------------+
                ¦August Wiecki, the father                                             ¦$1,081¦
                ¦                                                                      ¦45    ¦
                +----------------------------------------------------------------------+------¦
                ¦John, deceased                                                        ¦824 33¦
                +----------------------------------------------------------------------+------¦
                ¦Max                                                                   ¦570 07¦
                +----------------------------------------------------------------------+------¦
                ¦Frances                                                               ¦341 60¦
                +----------------------------------------------------------------------+------¦
                ¦Anna                                                                  ¦791 76¦
                +----------------------------------------------------------------------+------¦
                ¦                                                                      ¦$3,609¦
                ¦                                                                      ¦21    ¦
                +----------------------------------------------------------------------+------¦
                ¦The family also received as rent from a son-in-law for a portion of   ¦36 00 ¦
                ¦the homestead in which they lived                                     ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦                                                                      ¦$3,645¦
                ¦                                                                      ¦21    ¦
                +-----------------------------------------------------------------------------+
                

It is conceded that it was error on the part of the Commission to assume that the entire amount of Anna's earnings were contributed to the family, as it appears from the undisputed evidence that she in reality contributed but $169. Such difference, however, does not materially affect the question here to be decided.

A little more than a year before the death of John the family had undertaken to purchase the home in which they lived. During the year they had paid on the indebtedness for this home the sum of $1,300, $400 of which had been borrowed from the son-in-law, leaving $900, which had been taken out of the earnings of the family.

The Commission determined that after deducting the $900 from the total earnings of the family the balance was the sum necessarily used for the support of the family. Assuming that the support of the two children at school together would be equal to the support of one wage-earner, an amount was then arrived at as the actual cost of the support of each member of the family, fixing such at about $400. Such an amount was deducted from the earnings contributed by the son John, and the balance then left of $432 held by the Commission to be the amount contributed by John for the support of the family, and the basis for the computation under section 2394--9 (4) (e), and, multiplied by 4, gave the amount of $1,728, fixed as the death benefit.

The appellants, the employer and insurer, brought an action for review in the circuit court for Dane county on the ground that the finding of the Commission upon the question of dependency is not supported by the evidence. From the judgment of the circuit court affirming the award of the Commission the plaintiffs have appealed.

Vinje and Jones, JJ., dissenting.Brown, Pradt & Genrich, of Wausau, for appellants.

J. J. Blaine, Atty. Gen., W. W. Gilman, Asst. Atty. Gen., and Schoetz, Williams & Anderson, of Milwaukee, for respondents.

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

The amount contributed by the deceased minor son John to his family, with whom he lived during the year preceding his death, even without having deducted therefrom the amount that was necessary for the actual cost of his support, was less than the $900 taken out of the family earnings and paid therefrom on the purchase of the home.

Section 2394--9 (4) (c) Wis. Stats., being the section upon which the findings of the Commission rests, reads, so far as here material, as follows:

“(c) In case the deceased employé leaves no one wholly dependent upon him for support, but one or more persons partially dependent therefor, the death benefit shall not exceed four times the amount devoted by deceased, during the year immediately preceding his death, to the support of such dependents and shall be apportioned according to the percentage that the amount devoted by the deceased to the support of such person or persons, for the year immeditely prior to the accident, bears to the average annual earnings of the deceased. * * *”

The appellants contend that the undisputed facts that from the contributions made to the general family purse by all the working members of the...