Opinion
April 5, 1950 —
May 2, 1950.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by Dougherty, Arnold Waters and Clarence J. Bullock, all of Milwaukee, and oral argument by Suel O. Arnold.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondents Schlitz Brewing Company and Liberty Mutual Insurance Company there was a brief by Otjen Otjen of Milwaukee, and oral argument by Carl Neprud Otjen.
Action commenced January 28, 1949, by Mary Neumann, against the Industrial Commission of Wisconsin, Schlitz Brewing Company, and Liberty Mutual Insurance Company, to set aside the findings, order, and amended order of the Industrial Commission in favor of the defendants. Judgment was for defendants. Plaintiff appeals.
Plaintiff alleges that on December 8, 1948, she made application for compensation benefits on the basis of total dependency. Her son, William G. Neumann, died as the result of injuries sustained by him while in the scope and course of his employment. On December 16, 1948, the examiner for the Industrial Commission of the state of Wisconsin made and filed findings of fact awarding plaintiff compensation benefits only on a partial-dependency basis. On December 23, 1948, within the statutory period of time provided, plaintiff petitioned the Industrial Commission for a review of its findings. On January 11, 1949, the Industrial Commission affirmed said findings and the order.
Plaintiff further alleges that she is aggrieved by said findings, order, and award because she was wholly dependent upon the deceased for support at the time of and prior to his fatal injury; that applicant is entitled to total-dependency benefits; and that the findings are not supported by the evidence and do not sustain the order. The plaintiff was the mother of six children now living. The arrangements with respect to the maintenance of the mother were in association with her daughter, Mrs. Graske, and the deceased.
It is conceded that Mary Neumann is the mother and surviving parent of the deceased. The commission found that she is the owner of the premises where the deceased had his lodging; that she had been the owner of a house located at 615 East Russell avenue, Milwaukee. That property, however, she had sold to her daughter for $4,000 and the assumption of a mortgage of $2,000; that the sale was upon the understanding that Mary Neumann could always make her home there; that under this arrangement the appellant continued to live with her daughter; that her daughter, Mathilda, and husband never charged any rent to plaintiff; that otherwise she was dependent upon her deceased son for support. It was concluded from the facts presented to the commission that the plaintiff was not wholly dependent upon her deceased son. In the memorandum of the commission it is said: "It is clear that while he contributed largely and perhaps entirely to her need for food and clothing, he did not provide her with lodging. The value of lodging as compared with total expense of applicant's support was not an insignificant item. As that item was not contributed by deceased to applicant, she was not wholly dependent for her support upon deceased." The order based on those findings and conclusions required the payment by the employer of $2,500 to the state of Wisconsin in compliance with sec. 102.49(5), Stats., and the statutory allowance for partial dependency to the plaintiff, the mother of the deceased. The defendant allowed $300 for funeral expenses.
The plaintiff is an unestranged surviving parent residing in the state of Wisconsin and is entitled to receive the death benefit provided by statute for "partial dependency." The evidence referred to in this opinion and in the statement of facts shows that the sister of deceased and her husband, the purchasers of the homestead, together with their own daughter, and the mother, and the deceased lived in a community relation. There were contributions toward the supply of food by the deceased and by the husband of Mrs. Graske. The testimony of Mrs. Graske is that the deceased, his mother, and the family of Mrs. Graske all ate together and "pooled their food."
The case presented to the commission by the examiner's report was one in which the mother of the deceased was not wholly dependent upon her son for support at the time of his death, and the commission found that the mother was not wholly dependent upon her son. The circumstances of her situation show that only a part of her maintenance was contributed by the deceased. Partial dependency appearing, the amount allowed is fixed by statute; but as to the claim of being wholly dependent, the burden of proving the essentials of such dependency and its character is on the plaintiff. The rule is that if the evidence before the commission is such as to raise in the minds of the commission legitimate doubt as to the existence of essential facts, it would be the duty of the commission to rule against the claim on the ground that the applicant did not sustain the burden of proving to the satisfaction of the commission that the facts were as claimed. As urged by the defendants, the rule applies with as much force in a case involving dependency as in any other case.
The family adjusted themselves to what seems to be a practical method of meeting daily requirements, but nothing appears which places the plaintiff in the position of one totally dependent. The deceased occupied premises owned by the plaintiff and did assist in the maintenance of the plaintiff. It is unnecessary here to deal with the question as to whether this was intended to constitute a quid pro quo or warrants the spelling out of a consideration in an adjustment of matters between him and his mother. It does appear that the deceased used the plaintiff's premises, and that he gave her permission to use out of his savings such amount as she needed for certain expenses. The evidence is that the plaintiff furnished lodgings for her son for the past eleven years by allowing him to use her premises as a place to live. She packed his lunches, shopped for a part of his clothing and for the food which was pooled with that furnished by the Graskes. Out of the money he gave her she bought clothing for herself, paid incidental doctor bills, and he contributed toward what was used in common by the group (the daughter's family, the deceased, and the mother) for food. The rest of the money was deposited in the name of the deceased, and at the time of his death he owned $500 in bonds and had in the bank a balance of $1,404.55. He also owned an automobile.
It is considered that there is credible evidence to sustain the finding that the plaintiff was not wholly dependent upon the deceased for support at the time of and prior to his fatal injury. We reach this conclusion because it was a question of fact and as such was for the commission to determine. It was decided by the commission that the plaintiff was not totally dependent on her son for support. She was not incapacitated, owned some property, and the lodging portion of her maintenance was provided by others than the deceased. Under the circumstances the commission's finding that she was not wholly dependent upon the deceased for her support must be sustained.
By the Court. — Judgment affirmed.