Lloyd-McAlpine Logging Co. v. Industrial Commission

Eschweiler, J. This award was made under the pro- • visions of sub. (3) (c), sec. 102.11, Stats., defining those conclusively presumed to be solely and wholly dependent for support upon a deceased employee. To support it in favor of these two children under the statute there must be in the record sufficient legal evidence to warrant the conclusion that they were living with Paul Whitefish at the time of his death, and further that there was no surviving dependent parent. There is presented no difficulty in regard to the latter. The surviving parent, the mother, undivorced, had left the deceased and for four years had been living with another Indian and away from the reservation. Clearly, though still the wife of deceased and a surviving parent, she was not living with the employee at the time of his death, as is expressly required by sub. (3) (a) of the same statute, and therefore not a dependent parent. We are of the opinion that the evidence does not justify the finding that these two children were living with the deceased at the time of his death so as to bring them within the statute. It is undisputed that for years the expense of maintaining these children, including their food and clothing at school from early in September to early in June of each year, was borne by the community or tribal fund. The only cash contribution shown to have been made by the deceased was the sum of $5 which he gave to the mother to buy clothes for them. Her testimony was to the effect that she, not he, took care of them during the summers except for short visits to him, and the only visit to the father during the summer preceding the death was of a little over a' week [646] and just before the fall commencement of school. The facts here do not compare with the situation shown in the case relied upon by respondents of Milwaukee W. F. Co. v. Industrial Comm. 179 Wis. 223, 190 N. W. 439, where, though separated by great distance, there was a showing of sums of money being sent for the support and care. In this case no judicial proceedings had been taken under sec. 3964 (now sec. 319.03), Stats., so as to deprive either parent of the right which each had under the statute to the custody of the children. Under that statute as amended by ch. 147, Laws of 1921, which took away the prior existing preference of the father as guardian, as well 'as by sub. (1), sec. 6.015 (the Equal Rights Law: ch. 529, Laws of 1921), women are declared to have the same rights and privileges as men in the care and custody of children. Therefore there could be here, since the enactment in 1921 of the above mentioned chapters, no presumption, as might have been indulged in before that time, that there was here a living with the father as the parent having a prior right to the custody. The mere legal liability of a parent to support a child is not, in the absence of express statute, it would seem from the authorities, sufficient basis for awarding such compensation. New Monckton Collieries v. Keeling, 6 Neg. & Comp. Cas, Ann. p. 240, and note. The subject is also discussed in Lawrence v. Lake Superior T. & T. R. Co. 3 Wis. Ind. Comm. Rep. 41, cited in the above at p. 256. The Massachusetts statute on this subject was worded like ours, and after an amendment so as to include a wife living apart for justifiable cause or who had been deserted by the husband, still it was held that' a son deserted by and living apart from the father for justifiable cause was not solely and wholly dependent. Moran’s Case, 234 Mass. 152, 125 N. E. 157. Then by further amendment a child was made conclusively wholly dependent upon a parent “le647 gaily bound to support although living apart from such child.” But in cases of divorce and separation there were still difficulties, as shown in Gillander’s Case, 243 Mass. 5, 136 N. E. 646; Miller’s Case, 244 Mass. 281, 138 N. E. 254. A similar provision as to justifiable separation by the wife is in the Michigan statute. Martilla v. Quincy M. Co. 221 Mich. 525, 191 N. W. 193, 30 A. L. R. 1249, with general note on the subject at p. 1253. Although undivorced and living with Cheequasit, the wife and mother was still to be recognized as having rights in many respects. She still might assert her right to dower (Davis v. Estate of Davis, 167 Wis. 328, 167 N. W. 819); and was not necessarily to be deprived of the care of her children (Jensen v. Jensen, 168 Wis. 502, 505, 170 N. W. 735). Some general language of Superintendent Allen on his direct examination might seem to warrant the conclusion reached by the Industrial Commission and the court below. The cross-examination, however, and his entire testimony shows that such expressions were mere conclusions of the witness with no other support than pure hearsay. It has been consistently held that though great liberality must be indulged in by the courts in reviewing the findings of the Industrial Commission, nevertheless that there must be evidence in the record to support the findings, want of which evidence makes such findings invalid because in excess of the Commission’s powers. International H. Co. v. Industrial Comm. 157 Wis. 167, 175, 147 N. W. 53; Milwaukee v. Industrial Comm. 160 Wis. 238, 243, 151 N. W. 247; Voelz v. Industrial Comm. 161 Wis. 240, 242, 152 N. W. 830. Mere conjecture cannot be the basis of a finding of the Commission any more than of a finding by a court (Lezala v. Jazek, 170 Wis. 532, 536, 175 N. W. 87, 176 N. W. 238) ; and a mere evidentiary presumption as to continuance of life being held insufficient in Mihoaukee [648] W. F. Co. v. Industrial Comm. 179 Wis. 223, 231, 190 N. W. 439. Hearsay was recognized as improper and insufficient in A. Breslauer Co. v. Industrial Comm. 167 Wis. 202, 205, 167 N. W. 256. So far, therefore, as the testimony of Superintendent Allen was of the nature of hearsay, it cannot be the basis of a finding. Respondents cite Shell Co. v. Industrial Acc. Comm. 36 Cal. App. 463, 172 Pac. 611, and Perry v. Industrial Acc. Comm. 180 Cal. 497, 181 Pac. 788, upholding the admission of hearsay testimony. These decisions, however, were under statutes expressly authorizing such departure from the ordinary rules of procedure. We do not determine other questions presented and argued, having disposed of this case upon the one ground. By the Court. — Judgment reversed, with directions to dismiss the proceeding.