Nw. Iron Co. v. Indus. Comm'n of Wis.

• Decision Date: 02 June 1913
• Citation: 142 N.W. 271,154 Wis. 97
• Parties: NORTHWESTERN IRON CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 97

142 N.W. 271

NORTHWESTERN IRON CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 31, 1913.

Concurring Opinion, June 2, 1913.

Barnes, J., dissenting in part.

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

Action by the Northwestern Iron Company against the Industrial Commission and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions.

This an appeal by defendants from a judgment of the circuit court of Dane county, entered February 14, 1913, setting aside an award of the Industrial Commission made July 1, 1912. The award provided that plaintiff pay to the defendant Jela Nevadjic the sum of $2,100 on account of the death of her husband by reason of injuries accidentally sustained by him while in the employ of the plaintiff. The award was based on a finding of the Commission that Jela Nevadjic was living with her husband at the time of his death. The circuit court first decided that, although the finding of the Commission that Jela Nevadjic was living with her husband at the time of his death was erroneous, still the award should be confirmed because there was evidence to support the Commission's finding of total dependency without regard to the statutory presumption.

A motion for rehearing was made in the circuit court based upon an affidavit of the plaintiff's attorney setting forth correspondence with the chairman of the Industrial Commission showing that the Commission “determined that the wife was totally dependent simply because of the statutory presumption following its finding of fact that Nevadjic was living with his wife at the time of his death.” On rehearing the circuit court adhered to its decision that Jela Nevadjic was not living with her husband at the time of his death, but found that the Commission's finding of total dependency was based solely upon the statutory presumption, and further found that in making such findings and the award the Commission acted without or in excess of its powers, and entered judgment setting aside the award of the Commission. The Industrial Commission made the following findings: “That on February 25, 1912, while in the employ of the respondent (plaintiff here), one Prokopia Nevadjic accidentally sustained personal injuries by reason of a car of ore being dumped upon him, from the result of which he died, at Mayville, Wis.; * * * that the said deceased, Prokopia Nevadjic, came to this country some three years and three months prior to his death, leaving in his native country, Austria-Hungary, in the province of Korenica, a wife and one child; after coming to this country, the said deceased, Prokopia Nevadjic, did not return to his wife, but did occasionally send her money, and on February 8, 1912, shortly before his death, sent her the sum of $21; that deceased could not write, and the wife of deceased could not write, but they corresponded with each other through the aid of friends; and we find from these facts that the deceased Prokopia Nevadjic and the above-named Jela or Jelena Nevadjic, his wife, were living together at the time of the death of said deceased, and the said Jela or Jelena Nevadjic was solely and wholly dependent for support upon the deceased, Prokopia Nevadjic.”

It also appears from the evidence that Prokopia Nevadjic came to Mayville and “was employed by the Northwestern Iron Company on the 7th of November, 1911”; that he sent $30 to his wife “when he first came to Mayville”; that he said if “I don't send money every three month my wife can't make a living”; that he sent $21 to his wife February 8, 1912, an interval of exactly three months from the time of his previous remittance.

Walter C. Owen, Atty. Gen., Byron H. Stebbins, First Asst. Atty. Gen., and Kahn & Murphy, of Chicago, Ill., for appellants.

Edward G. Wilmer, of Milwaukee, for respondent.

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

The judgment of the court below setting aside the award of the Industrial Commission rests upon the conclusion of the court that the Industrial Commission acted without or in excess of its powers in finding that the appellant Jela Nevadjic was living with her husband at the time of his death. The question, therefore, presented on this appeal is whether the Commission acted without or in excess of its powers in making such finding.

[1] Subsection 3, § 2394--9, of the Workmen's Compensation Act provides a death benefit “in case the deceased employé leaves a person or persons wholly dependent on him for support.”

Subsection 3, § 2394--10, provides:

“3. The following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employé:

(a) A wife upon a husband with whom she is living at the time of his death.

(b) A husband upon a wife with whom he is living at the time of her death.

(c) A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning), upon the parent with whom he or they are living at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided equally among them.

In all other cases questions of entire or partial dependency shall be determined in accordance with the fact, as the fact may be at the time of the death of the employé. * * *”

The Industrial Commission in its opinion filed in the case with its findings defined the phrase “living together” thus: “We are of the opinion that the husband and wife are to be considered as living together, even though one or the other may be absent from the home for a considerable length of time and separated by great distance; they are living together when they are not living apart, when there is neither legal nor actual separation of the bonds of matrimony.” We have been cited to no authority directly in point and have found none where the words “living together” have been construed in a statute similar to the one now before us. Authorities are cited by counsel where the words “living together” and similar phrases have been defined in standard dictionaries, and in statutes quite different from the one now before us. And it is argued by counsel for respondent that, giving the words the meaning ascribed to them according to the common and approved usage of the language they impart a dwelling together in the same place.

[2] In giving construction to such statutes, words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed.

It has been ruled in England that terms used in the Workmen's Compensation Acts should be given their practical, popular meaning, and that a technical construction should not be placed upon them. Small v. Coles, 2 King's Bench, 821; Rogers v. Cardiff Corporations, 8 W. C. C. 51; Adams v. Shaddock, 2 King's Bench, 859.

Proof of total dependency is dispensed with under the statute where the husband and wife are “living together” at the time of the death of the injured employé. It seems, therefore, quite obvious that the Legislature intended by the use of the words to include all cases...