Opinion
September 16, 1949. —
October 11, 1949.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellants there was a brief by Hale, Skemp Nietsch of La Crosse, and oral argument by Thomas H. Skemp.
For the respondents Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
Action brought April 6, 1948, by Burt Brothers, d/b/a Budd Cheese Company, and the Lumbermens Mutual Casualty Company to have an order of the Industrial Commission granting a $1,500 death benefit to Mrs. Minor Cather and Ross Bauman, parents of Orville Bauman, deceased, set aside. From a judgment of April 22, 1949, affirming the order of the Industrial Commission, plaintiffs appeal.
This was a claim for death benefits by Ross Bauman and Mrs. Minor Cather under sec. 102.48, Stats, which provides in part:
" Death benefit, continued. If the deceased employee leaves no one wholly dependent upon him for support, partial dependency and death benefits therefor shall be as follows:
"(1) An unestranged surviving parent or parents, . . . shall receive a death benefit of $1,500. If the parents are not living together, the commission shall divide this sum in such proportion as it shall determine to be just, considering their ages and other facts bearing on the dependency."
Bauman and Mrs. Cather were the parents of Orville Bauman who was killed while driving a truck in the employ of the Burt Brothers. They were divorced when Orville was four years old. The mother was awarded custody, but Orville stayed with his father and later with an Emil Allen for a time after the divorce. He lived with his mother or with his mother's parents until he went to work for the Burt Brothers six months before his death. He lived with Mr. and Mrs. Floyd Burt for that period.
The examiner found that Mrs. Cather and Bauman were the unestranged parents of Orville and ordered payment of the $1,500 death benefit to be equally divided between them. Upon the petition of plaintiffs for a review, the Industrial Commission reviewed the record and on March 9, 1948, affirmed the findings and order of the examiner. On April 22, 1949, the circuit court for Dane county entered judgment affirming the Industrial Commission. Plaintiffs appeal.
On this appeal appellants complain that the finding by the examiner that Mrs. Cather and Ross Bauman were the unestranged parents of Orville Bauman is not supported by credible evidence if the common meaning of the word "unestranged" is used. Whether a child and his parents are unestranged is a question of fact to be determined upon substantial evidence by the Industrial Commission. Derong v. Industrial Comm. 209 Wis. 88, 244 N.W. 591. In reviewing a finding of fact of the Industrial Commission the function of this court is to determine whether that finding is supported by credible evidence. Cornell W. P. Co. v. Industrial Comm. 195 Wis. 267, 218 N.W. 182; C.R. Meyer Sons Co. v. Grady, 194 Wis. 615, 217 N.W. 408; Gerue v. Industrial Comm. 205 Wis. 68, 236 N.W. 528; Jasperson v. Industrial Comm. 231 Wis. 142, 285 N.W. 391; Harnischfeger Corp. v. Industrial Comm. 253 Wis. 613, 34 N.W.2d 678.
At the hearing the testimony as to the relationship between the boy and his parents was conflicting. Mrs. Cather, her mother, Mrs. Stone, and Ross Bauman, all testified to friendly relations. They claimed there was visiting and correspondence between the boy and his parents and interest in the boy's welfare by the parents. Mrs. Cather testified that she had seen her son a little more than a month before his death. This was corroborated by Mrs. Stone.
Mr. and Mrs. Burt, with whom Orville lived for six months before his death, testified that, so far as information coming to their knowledge was concerned, the parents showed no interest in the boy. In fact he said things indicating that he had ill feeling toward them. The commission might well consider, as it evidently did, that because of the estrangement of his parents, resulting in depriving him of a rightful home, he was disappointed by the situation in which his parents had placed him, and his outbursts were the natural reaction of a boy thus unfortunately circumstanced.
The Industrial Commission, as trier of the facts, found that Mrs. Cather and Bauman were the unestranged parents of Orville Bauman. It is considered that there is credible evidence to sustain the finding.
Appellants contend that the claimants have not satisfied the burden of proof which is on them to show that they are the unestranged parents of Orville. Since there is sufficient evidence to sustain the finding of the Industrial Commission, the award must stand. The cases which appellants rely on are not controlling. They are cases in which this court affirmed the Industrial Commission in its holding on the question of burden of proof.
By the Court. — Judgment affirmed.