Interlake Pulp & Paper Co. v. Industrial Commission

EschweileR, J. The deceased was employed with two others in placing pulp wood into a conveyor'running along [230] the ground between two buildings in plaintiff’s yards. It was covered at about four feet from the ground and one foot across. Some fifty feet above it was another conveyor from which, at points which were opened as desired, the wood fell and piled up and then from such piles was thrown into the lower conveyor. For some undisclosed reason he left his point of employment and three or four minutes later was found dead about two hundred feet away, with his body lying upon the said lower conveyor and under one of the openings in the upper conveyor. His skull was fractured and caused instant death. It is contended by plaintiff that there is no support in the evidence for the conclusion that the death of Richard Imm was in the course of his employment and for that reason there was no jurisdiction in the Commission to make an award. While the testimony is very meager as to the manner in which the death was caused and as to any explanation as to why he was at the place where found, yet we cannot say that the facts shown do not permit the conclusion drawn as a reasonable inference therefrom by the Commission. The award to- the father was made under sub. (4) (c), sec. 2394 — 9, Stats. 1921, reading: “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,” etc. In a situation such as here presented, there being under the statute no conclusive presumption of dependency as there is in cases of husband and wife, and children under eighteen, by sub. 3', sec. 2394 — 10, Stats. 1921, the alleged dependency must be found to exist as a primary fact. Baraboo v. Industrial Comm. 185 Wis. 555, 201 N. W. 809; Wis. Mut. L. Co. v. Industrial Comm. 184 Wis. 203, 199 N. W. 221; Milwau [231] kee B. Co. v. Wiecki, 173 Wis. 391, 181 N. W. 308; Wis. D. Co. v. Industrial Comm. 161 Wis. 42, 152 N. W. 460. Unless such primary fact of dependency exist then there is no basis for an award. Evidence of contributions or gifts by a deceased only become material as a measure for the amount of an award when partial dependency exists. In most of the cases presenting claims under partial dependency, the proofs of dependency and of contributions go hand in hand, and proving the one also proves the other; but this is not always necessarily so, nor so in the instant case. The claimant father here was entitled to the wages and services of the deceased son until majority, unless emancipated, by virtue of parenthood and as a matter of law. Patek v. Plankinton P. Co. 179 Wis. 442, 446, 190 N. W. 920. This right is manifestly entirely apart from the question of dependency provided for in the statute here involved. The well-to-do and entirely self-sustaining parent has the same legal right to the minor child’s services and earnings as has the parent who is ttnable to earn sufficient to properly obtain the necessaries of life for himself and family; yet what may be paid by the minor to the father in the first instance would not show or measure dependency, while in the second instance it would clearly do both. In this case the father, fifty-one years old, and the mother, forty-eight, with two younger boys, sixteen and thirteen, and a daughter nine, these three attending school, lived on the 160-acre farm, eighty acres cultivated and forty in timber, assessed at $4,200 and paid for in full. There was a seven-room house, not painted or completed, barn, sheds, live stock, and farm machinery. The father owned a portable sawmill and threshing outfit. Mrs. Imm at one time received as her separate property $2,500, which went into the farm. There was no showing, however, by which any computation could be made of the father’s income from farm, saw [232] mill, or threshing outfit, nor the necessary outgo for the care of the family. Two older boys, one now married, had also, up to their respective majorities, given their earnings over to the father or mother, but not after that, at least so far as the record here shows; and if they did so contribute during the year involved it would be proper for consideration in solving the question as to whether the claimant here was dependent, under the statute, upon the deceased or other children. The Commission therefore having insufficient evidence before it upon which to make its finding of partial dependency and as to the amount of the award, the cause must be remanded for further proceedings. By the Court. — The judgment of the circuit court is reversed,'with directions to return the matter to the Industrial Commission for further proceedings. ••