Speelmon Elevated Tank Service v. Industrial Commission

• Decision Date: 05 November 1957
• Citation: 85 N.W.2d 834,2 Wis.2d 181
• Parties: SPEELMON ELEVATED TANK SERVICE, a foreign corporation, et al., Appellants, v. INDUSTRIAL COMMISSION and Joyce Ann Vinkovich, a minor, etc., Respondents.
• Court: Wisconsin Supreme Court

Page 834

85 N.W.2d 834

2 Wis.2d 181

SPEELMON ELEVATED TANK SERVICE, a foreign corporation, et al., Appellants, v. INDUSTRIAL COMMISSION and Joyce Ann Vinkovich, a minor etc., Respondents.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Bendinger, Hayes & Kluwin, Milwaukee, for appellants.

Stewart G. Honeck, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

MARTIN, Chief Justice.

Appellants' contention that Joyce Ann is not a dependent under sec. 102.51(1), Stats., is without merit. That section provides, so far as material:

'The following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employe: * * * a child under the age of 18 years (or over said age, but physically or mentally incapacitated from earning), upon the parent with whom he is living at the time of the death of such parent * * * The charging of any portion of the support and maintenance of a child upon one of the parents, or any voluntary contribution toward the support of a child by a parent, or an obligation to support a child by a parent shall constitute a living with any such parent within the meaning of this section.'

The evidence is undisputed that Joyce Ann is the minor daughter of John Vinkovich. True, he never supported her, but this does not change the fact that he was legally obligated to do so. The child's mother testified that she did not have him arrested for non-support because she could never find him. See Shea v. Industrial Comm., 1935, 217 Wis. 263, 258 N.W. 779. Since Vinkovich was under legal obligation to support the child, she must be considered as 'living with' him at the time of his death and hence his dependent under the statute. That being true, she was entitled to the death benefits awarded her by the commission.

What appellants object to is the payment of more than the maximum death benefits. It is their position that the commission should set aside the previous award and reapportion the benefits among the three children. The commission, however, is without authority to do so.

Sec. 102.16(1), Stats.1951, under which the appellants proceeded, reads:

'Any controversy concerning compensation, including any in which the state may be a party, shall be submitted to said commission in the manner and with the effect provided in this chapter. Every compromise of any claim for compensation may be reviewed and set aside, modified or confirmed by the commission within one year from the date such compromise is filed with the commission, or from the date an award has been entered, based thereon, or the commission may take such action upon application made within such year. Unless the word 'compromise' appears in a stipulation of settlement, the settlement shall not be deemed a compromise, and further claims shall not be barred except as provided in section 102.17(4) irrespective of whether award is made.'

The award of December 2, 1952 was based upon stipulations which did not contain the word 'compromise' and under the rule of Wacker v. Industrial Comm., 1946, 248 Wis. 315, 21 N.W.2d 715, at the expiration of twenty days the award could not be set aside on the application of the employer or the insurance carrier.

Appellants contend that this application of sec. 102.16(1) Stats.1951 denies them due process and the equal protection of the laws because they have only twenty days from...