209 Wis. 88 | Wis. | 1932
Charles Derong, Jr., was fatally injured on January 27, 1931, while pursuing his employment. Plaintiff, as the surviving parent, claims the death benefit provided for by sec. 102.09 (4a), Stats. 1929, which so far as here material provides:
“(4a) If the deceased employee leaves no one wholly dependent upon him for support, partial dependency and death benefits therefor shall be as follows:
“(a) An unestranged surviving parent or parents, residing within any of the states or District of Columbia of the*90 United States, shall receive a death benefit of twelve hundred dollars.”
The death benefit was denied to plaintiff by the Industrial Commission, which found “that the applicant and his son had become estranged prior to the time of his son’s death; . . . that there had been a turning from the original feeling of attachment to one of at least indifference on the part of the father, and probably active enmity on the part of the son, as indicated by statements that he and his father could not agree and that he wanted nothing to do with his family.” A review of the record discloses that there was ample credible evidence to sustain those findings, and consequently they cannot be set aside. Although the evidence does not establish the existence of illwill, hatred, animosity, or malevolence between the parent and his son, it well establishes that for the last twenty years there had existed a definite severance of kindly, friendly, or affectionate relations between them. They had voluntarily become indifferent and distant toward each other. Neither was concerned about or contributed to the welfare or sustenance of the other. There was such a definite severance of friendliness and friendly relations between them that it would be wholly foreign to the underlying theory and purposes of the compensation act to consider the surviving parent under such circumstances an intended beneficiary, as an unestranged parent, under sub. (4a) (a) of sec. 102.09, Stats. 1929.
After plaintiff’s appeal to this court, it was contended on his behalf, for the first time, that the commission’s findings were not determinative of his rights because he was not given an opportunity to appear in person or by counsel before the members of the commission when they reviewed and took under consideration the testimony taken in this matter at a hearing conducted in the customary manner before an examiner, duly appointed by the commission
By the Court. — Judgment affirmed.