Shea v. Indus. Comm'n

• Decision Date: 05 February 1935
• Citation: 258 N.W. 779,217 Wis. 263
• Parties: SHEA v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

217 Wis. 263

258 N.W. 779

SHEA

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1935.

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

Affirmed.

This action was begun by Bertha Shea on May 26, 1933, against the Industrial Commission of Wisconsin and Gerald Emmett Shea, Ida Shea Groppe, Merritt-Chapman & Whitney Company, and Standard Accident Insurance Company to set aside an award of the Industrial Commission. Judgment confirming the amended award of the Industrial Commission was entered on the 9th day of July, 1934, from which the plaintiff, Bertha Shea, appeals.

On March 11, 1927, Timothy Shea and Ida Shea (Groppe) were divorced by judgment entered in the First judicial circuit, county of Grand Forks, state of North Dakota. Service was had upon Timothy Shea by publication. The decree of divorce awarded the care, custody, and control of the only child, Gerald Emmett Shea, to the mother. She was subsequently married to one Groppe. Timothy Shea was married on May 3, 1930, to the plaintiff, Bertha Shea.

Timothy Shea, while in the employ of the defendant Merritt-Chapman & Whitney Company, was killed in an industrial accident, whereupon Bertha Shea filed an application for compensation under the Workmen's Compensation Act (St. 1933, § 102.01 et seq.). Compensation award was entered, and under said award compensation in the sum of $1,402.50 had been paid to Bertha Shea at the time of the commencement of this action. In the making of the award, the Industrial Commission found that Bertha Shea was totally dependent upon Timothy Shea for support at the time of his death. On May 28, 1932, Gerald Emmett Shea filed an application alleging that he was likewise dependent upon Timothy Shea and asking for a part of the award made by the commission, and on January 21, 1933, the award of the commission, dated January 21, 1932, was set aside. Evidence was taken, and, after a hearing, the award of January 21, 1932, was reinstated. The commission found that at the time of the death of Timothy Shea he was under a legal obligation to support Gerald Emmett Shea and “that such obligation constituted a living with the deceased under the compensation act; that both the applicant, Gerald Emmett Shea, and the applicant, Bertha Shea, being totally dependent upon the deceased Timothy R. Shea, the Commission finds that an equal distribution of the death benefit under the compromise agreement entered into between the applicant, Bertha Shea, and the respondent, Merritt-Chapman & Whitney Company, and its insurance carrier, to be fair and equitable under the circumstances; that the applicant, Bertha Shea, under such proportion as she is entitled to herein, having heretofore received the sum of $1,402.50, is entitled to a balance of $1,646.00 payable in monthly installments” in satisfaction of the award made on January 21, 1932; “that it is for the best interests of the applicant, Gerald Emmett Shea, that he be allowed at this time the sum of $200.00 and that the balance of compensation to which he is entitledshould be paid to him at the rate of $30.00 per month and when such balance is extended at such rate, there will be a balance due him of $3112.78, payable in monthly installments.”

It is to review the amended award made pursuant to these findings that this action was begun.

Bender, Trump & McIntyre, of Milwaukee (Rodger M. Trump and David G. Owen, Jr., both of Milwaukee, of counsel), for appellant.

James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., Olin & Butler and E. L. Wingert, all of Madison, and Hanitch, Hartley, Johnson & Fritschler, of Superior, for respondents.

ROSENBERRY, Chief Justice.

The question presented is whether or not Gerald Emmett Shea, the son, was entitled to share in the award as one dependent upon Timothy R. Shea for support. A determination of this question involves an interpretation of section 102.51(1), Wis. Stats., which provides: “The following shall be...