City of Baraboo v. Industrial Commission

Rosenberry, J. The statute under which the liability of the city is predicated is sec. 102.09, par. (c) of sub. (4), which provides: “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 álall be such sum as the commission shall determine to represent fairly and justly the aid to support which the dependent might reasonably have anticipated from the deceased employee but for the accident, considering their physical surroundings and conditions. . . . The term ‘support’ as used in this section [557] shall include contributions to the capital fund of the dependents, for their necessary comfort.” It is provided by sec. 102.11, par. (c) of sub. (3): “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 accident to the employee.” The jurisdiction of the Commission to award compensation or death benefit rests upon the fact of dependency. Wis. Mut. L. Co. v. Industrial Comm. 184 Wis. 203, 199 N. W. 221. Except in the cases otherwise provided by statute, dependency must be found as a fact upon the circumstances and conditions of each case. It is not presumed. This court has gone a long way in sustaining findings of the Industrial Commission as to dependency. Milwaukee B. Co. v. Wiecki, 173 Wis. 391, 181 N. W. 308. Does the mere fact that a son, twenty-six years of age, the year previous to his death, made presents of money amounting in all to the sum of $35 to the father, warrant a finding that the father, under all the circumstances shown by the statement of facts in this case, was dependent upon the son? The fact that the father purchased clothing with the money is not controlling. The outstanding facts in this case are that the father was living in a home abundantly provided for by the joint efforts of himself and his wife; that he was possessed of a considerable amount of property of his own. The deceased, as no doubt thousands of children have done, made a present to his father. The making of a present does not create a status. If the father was in fact dependent, the amount of the contribution might be a measure of dependency but it does not create dependency. The evidence shows that the father was generously provided for through the efforts of himself and his wife.. It is considered that the Commission acted without and in excess of its power in finding that under the circumstances in this case [558] the claimant was in fact dependent upon the deceased for support. As this court has many times pointed out, the workmen’s compensation act is a beneficent measure. It should be fairly administered to accomplish the purpose which was intended by the legislature, and slight circumstances should not be seized upon to create liability and to extend the operation of the law to cases not fairly within its scope. We do not find it necessary to consider the question of whether or not the employee Jeffries was authorized to hire the deceased to perform the services which he was rendering at the time of his death. By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment setting aside the award of the Commission.