Milwaukee Basket Co. v. Wiecki

181 N.W. 308, 173 Wis. 391, 1921 Wisc. LEXIS 59

• Court: Wisconsin Supreme Court
• Decided: February 8, 1921
• Status: Published

Opinions

Eschweiler, J.

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.

Sub. (4) (c), sec. 2394 — 9, Stats., being the section upon which the findings of the Commission rest, reads, so far as here material, as follows:

“(c) In case the deceased employee 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 immediately 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 family, there was taken out and used $900 for the specific purpose of paying for a home, and which sum was more than the total earnings of the deceased, conclusively negative the finding by the Commission of partial dependency of the parents upon the deceased son, tinder any reasonable construction to be given to the section above quoted. That where, as here, had there been no contributions by the deceased son to the family during the year preceding the death, there would have been nevertheless a surplus (disregarding the $900) over and above the amount that would have been actually expended for the care and support of the family, it must be held as a matter of law that such sum of'$900, being in excess of the earnings of the deceased, was neither used nor needed for the support of the' family and therefore there was not a case of: partial-dependency; that-the surviving parents are not losers by reason of the son’s death in- respect to- any dependency for support by them upon him.

The claimants have the burden of showing to a reasonable certainty from competent evidence that there was, at the time of the death, a partial dependency by them upon such deceased, there being no presumption in that regard in their favor from the meré fact of the family relationship. Wis. D. Co. v. Industrial Comm. 161 Wis. 42, 45, 152 N. W. 460.

Under present-day conditions there cannot be any question but that payments, to a reasonable extent at least, for the purpose of maintaining the roof which shelters the family, either in the shape of rent if it be not their own, or interest upon existing indebtedness on such home if it be theirs, and for repairs, insurance, or such like items, should be considered a part of the necessary support of the family within the meaning of the statute. It is so frankly conceded by appellants’ counsel.

In this case, instead of renting, the family elected to purchase a home. By what must undoubtedly have been rigid economy, as is demonstrated by a momentary comparison between the number maintained and the amount from which such maintenance had to be taken, they set aside a very substantial part of such joint earnings for the purpose of thus securing a home.

It cannot well be questioned but that as to some at least of the $900 taken out of the joint family earnings the're was a very proper basis for holding that there was' a situation of partial dependency of the parents for their support upon the earnings of-this son. The Commission was therefore justified in so finding,- and such finding as affirmed by the circuit court certainly cannot be disturbed.

The Commission, having this situation before it, arrived at its conclusion that the amount devoted by the deceased to the support of bis parents during the year prior to the accident was the whole amount of his earnings paid over to his family less the amount actually needed to pay for his care and support. We cannot say, in view of all the circumstances presented in this record, that such conclusion was unwarranted. .Similar holdings have been sustained in other courts. State ex rel. Fleckenstein B. Co. v. District Court, 134 Minn. 324, 159 N. W. 755; Day v. Sioux Falls F. Co. (S. Dak.) 177 N. W. 816.

We find nothing inconsistent with the result here reached in the cases relied upon by appellants, Dasy v. Apponaug Co. 36 R. I. 81, 89 Atl. 160, and Rhode Island B. & I. Works v. Industrial Comm. 287 Ill. 648, 122 N. E. 830.

It is suggested in respondents’ brief by the assistant attorney general that it is desirable to have the question now decided whether or not the Industrial Commission, in determining matters of dependency such as here involved, should deduct from the total contributions to the family by the injured person an amount of money equal to that which was actually used or needed for his individual support during the year in question before it fixes the amount that should be held to have been contributed to the support of the dependents. Tt being contended that where the injured employee was, as in this case, a minor and living with his parents, there was the corresponding relative duty of support of such minor br^ the parent regardless of whether or not the parent exercised his legal right to receive the wages of such minor, therefore there is no warrant for deducting such sum, as the parent would have had to pay just as much, the son not earning or contributing, as when earning and contributing. Although the question as presented is not necessary for a disposition of this case, nevertheless we feel that our views upon it may be stated now.

We are of the opinion that where, as here, a minor contributes his earnings to his family with whom he resides, so much thereof as is actually needed and necessarily used for his individual care and support from the general family purse is to be treated as a sum used for his individual support rather than as a contribution by him of the same amount to the support of his dependents under the statute above quoted.

We think the rule and the reason, are well stated in the case of Moll v. City Bakery, 199 Mich. 670, 165 N. W. 649.

By the Court. — Judgment affirmed.