Stojic v. Industrial Commission

Owen, J. It is the contention of the appellant that she was living with her deceased husband at the time of her death, and that by virtue of the provisions of sec. 102.11, Stats., it is conclusively presumed that she was totally dependent upon him at the time of his death. This court has decided a number of times that the question of whether the wife is living with her husband under circumstances such as are here presented is a question of fact. Northwestern I. Co. v. Industrial Comm. 154 Wis. 97, 142 N. W. 271; Smith v. Scheidegger Bros. 170 Wis, 162, 174 N. W. 462; Belle City M. I. Co. v. Rowland, 170 Wis. 293, 174 N. W. 899; Milwaukee Western F. Co. v. Industrial Comm. 179 Wis. 223, 190 N. W. 439. Appellant claims that this is an erroneous holding, and that by the application of the tests suggested in Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452, as to whether a conclusion is a finding of fact or a conclusion of law, the determination of the question whether the wife is living with her husband under such circumstances is a question of law, and we are asked to review the cases above cited and to now hold that such a question is a question of law. We are quite satisfied that the question is one of fact and not of law. It is well settled by the decisions of this court that where there is any evidence to support a finding of fact made by the Industrial Commission it will not be disturbed. We think there is abundant room for different inferences to be drawn from the evidence in this case as to whether the claimant was living with her husband at the time of his death, and that the finding of the Commission upon thisoquestion finds ample support in the evidence. According- to her own testimony he was in this country ten years prior to the date of the war, during which time, although he sent her money 231 from time to time, it does not appear that any plans or arrangements were in contemplation between the parties either for her coming to this country to live with him or of his returning to Croatia to live with her. Even though the absence of correspondence between the parties since 1914 be explained by reason of the World War and the postal regulations of that period, yet there is ample room to find that they were not living together at the outbreak of the war. As declared in Northwestern I. Co. v. Industrial Comm. 154 Wis. 97, 142 N. W. 271, the question does' not turn on time or distance, but on the nature and character of the absence, and the intention of the parties with respect thereto is an important element in determining the nature of the absence. The question of the intent of the'-, parties in this case was an inference to be drawn from the facts proved. The Industrial Commission evidently considered that an absence of ten years without any plans or apparent effort on the part of the husband to bring his wife to America indicated an estrangement. It cannot be said that such a conclusion was not a justifiable inference to be drawn from the facts proved, and the finding of the Industrial Commission cannot be disturbed. Appellant also argues that the evidence shows actual dependency; that as a matter of fact she was totally dependent upon the deceased for her support. But the evidence shows that he contributed nothing to her support for four years prior to his death, and in the face of such circumstances it is rather difficult to conclude that there was dependency as a' matter of fact independently of the presumption raised by the statute that she was totally dependent upon him for support. Whether she was partially dependent upon him for her support need not be considered, for the reason’ that it affirmatively appears that he contributed nothing to her support for four years prior to his death, so there is no basis for compensation. By the Court. — Judgment affirmed.