*1 attack post-conviction collateral is set aside conviction misconduct, double prosecutorial entirely because retrying from jeopardy principles do bar State interpreted to not be the defendant. decision should jeopardy bar would double in a case where mean jeopardy granted, double reprosecution if a mistrial is after conviction prosecution if a motion not bar granted. Department Plaintiff-Respondent, v. In Larson, Defendant: Relations, dustry, Human Labor & another, Engineering Company, Combustion Defendants-Appellants. 29, 1977. January Argued March
No. 75-285. 1977.Decided 33.) reported (Also in 252 2d N. W. *4 appellant by Everson, For there were briefs Whitney, Everson, Pfankuch, Brehm & S. C. and oral argument by Pfankuch, Bay. William S. all Green respondent
For Kaftan, there was a brief Kaftan, Kaftan, Egeren, Kuehne & Van S. C. and oral argument by Kaftan, Bay. Arthur all of Green HANSEN, T.
CONNOR J. Nelson, employee defendant-appellant, David an Engineering Company, (hereinafter Combustion em- ployer) injured during June the course employment. He injuries, died as a result those At on June 1971. the time that he sustained the twenty-five injuries, years Nelson was old, unmarried parents. and survived both *5 defendant-appellant, Company Travelers Insurance
(hereinafter Travelers), employer’s was workmen’s compensation liability no insurance carrier. There is dispute Shortly death Nelson’s was work related. after uncertainty Nelson’s death there arose to some Shryock effect of a claim Gale Nelson putative father of an child. The unborn record unclear toas how the claim arose or was communicated employer, Department. However, Travelers or the September 15, 1971, Department informed girl Travelers that her child friend and unborn “[t]he would not be considered of a deceased employe under the workmen’s . . ” law. $2,000 and that payable death benefits would Nel- parents. subsequently son’s paid $2,000 Travelers parents pursuant 102.48(1), Stats.; Nelson’s to sec. $500 expenses pursuant 102.50; funeral $11,000 pursuant into the state 102.49(5). fund to sec.
On 6,1973, Harley June the plaintiff-respondent, David Larson, alleged illegitimate (hereinafter child re- spondent) by general guardian, his mother and Gale Shryock, application filed an Department with the death benefits under the Wisconsin Workmen’s Com- pensation Act, arising out of the death of Nelson. The respondent alleged illegitimate that he was “. . . the of the deceased, Nelson, child David and was about 3 in the months womb when David injured Nelson was died.” 13, 1973, Department
On June the re- notified spondent face, application that on presented its a case nonliability under the Compensation Workmen’s Act. respondent pursue continued to a claim for death benefits. August 21, 1973,
On deputy administrator of the Department respondent’s dismissed the application, with- stating: hearing, out *6 the application filed with “That for death benefit was deceased, 6,1973; Department the David W. on June that injury on fatal the time of his Nelson, not at was married alleges ‘applicant is 1971; application 26, June the the Nelson, and illegitimate the child of deceased David David Nelson in the when three months womb
was about al- assuming as injured the facts died/ That established, successfully leged applicant application in the could be the not dependent under qualify would not as 102.51 and would provisions of Wisconsin Statutes to a entitled benefit.” death the petitioned August respondent 25, the 1973, On deputy ad- the Department order of for review the pursuant 102.18 Stats. to sec. ministrator an Department issued 19, 1973, September the On deputy the August 1973, affirming order 21, order respondent, 1973, September 28, On administrator. in action 102.23, Stats., an commenced pursuant to sec. county review for Dane court circuit Department 1973, on 19, September order grounds that: of its Department or in excess
(1) acted without powers; and Department findings of fact relied support or award. the order not
did April On the circuit court filed its memo- judgment randum it held that decision which legitimate illegit- posthumously children, born whether imate, qualify under as Stats. September order The circuit reversed Department and remanded the matter for further brought appeal, appellant-em- proceedings. This Travelers, ployer, followed. Additional facts will presented, forth in our discussion of issue which set is: illegitimate posthumously child, three an
Is born injury time of the in the womb at the fatal months alleged putative provi- father, under the Stats., and, therefore, 102.61, entitled to sions of see. payment of a death benefit under work- Wisconsin men’s law? OF REVIEW.
SCOPE Department The ILHR respondent’s considered the application for death complaint benefits if it were a grounds to which a demurrer had been entered on the it failed state a cause of action. Thus the facts dispute purposes were appeal and for the of this David Nelson is assumed to have been the father of the respondent. *7 Department questions determined no fact, of but
purported to
question
determine a
law,
i.e., under the
assumed facts here presented,
respondent
could
qual
ify
as a
for death
purposes
benefit
under the
compensation
workmen’s
question
law? Such
law,
a
involving,
does,
as it
the statutory construction of various
sections of the
workmen’s
law,
prop
erly
by
reviewable
the circuit
by
court this court
appeal..
Consolidated
Co.,
Const.
Inc. v. Casey, 71
811, 816,
Wis.2d
238
(1976);
N.W.2d 758
McGraw-
Edison Co. v. ILHR Dept.,
703,
64 Wis.2d
713, 221
(1974);
N.W.2d 677
Rohan Motor Co. v. Industrial
Comm.,
223, 226,
188 Wis.
205 N.
(1925);
930W.
Radtke
Bros. & Korsch
Rutzinski,
Co. v.
212, 219,
174 Wis.
183
(1921).
168
question
N.W.
Since no
involved,
of fact was
court,
neither the circuit
nor
appeal
this court on
are
by
Department’s
bound
determination. Black River
Dairy Products, Inc. v. ILHR Dept., 58
537, 543,
Wis.2d
65 (1973);
N.W.2d
Chamberlain v.
Industrial
Comm., 5
Wis.2d 411,
Although
question
appeal,
of law is involved in this
general
recently
two
by
rules
court
in
restated
this
Dept.,
DeLeeuw v. ILHR
446, 449,
71 Wis.2d
238 N.W.2d
applicable
(1976), are
and deserve consideration:
previously
“Our
decisions have
determined
whether
undisputed
of em-
certain
facts constitute loss
ployment
question
dispute presents
because of a labor
reviewing
question
law,
law. In
court
such
this
legal
does defer to a certain extent
construction
application
charged
agency
and
enforcement of that
of a
statute
guided by
further
statute. We are
law,
questions
the rule of
which,
review under
to
made
we will not reverse a
the enforc-
determination
ing
among
agency
interpretation
where such
is one
made,
interpretations
several
reasonable
that can be
equally
purpose
consistent with the
of the statute.”1
Although
appellants
circuit
and the
their
court
involving
case as one
both
brief framed
issue
this
illegitimacy
posthu-
element
the element of
argument
appellants
clearly
indi-
birth,
mous
at oral
doing,
illegitimacy
cated that
was not in issue. In so
appellants’ view of the critical
into
issue was drawn
respondent.
that of
accord with
It is clear under the decisions of this
that an
*8
illegitimate
dependent
can
qualifying
child
for death
benefits
compensation
under
law. Zschock
workmen’s
v. Industrial Comm.,
231,
11 Wis.2d
268 Wis.
N.W.2d
v.
in Kuetbach
drawn from this court’s decision
contrary,
(1917),
Industrial
Secs. 102.46 quirements provide payment for of death for wholly dependent upon persons partially or benefits employee covered the workmen’s deceased otherwise of the law. Two critical features above payments no of made are that death are sections benefits except qualify dependent persons wholly who as either dependent upon employee partially or the deceased degree support, dependency the status injury the date to the de- are determined employee. ceased negative fashion, forth, in a 102.51 sets
Sec. persons, in terms of their rela- those classifications may tionship deceased, de- who be considered pendents. (a), 102.51 states: Sec. “(2) (a) person ARE NOT. No be con- WHO shall family sidered a unless a or member spouse, spouse not remarried, or a divorced who has or ancestor,
lineal or or descendant sister brother employe.” deceased consistently any person This court has held that who may falls within one the above establish classifications fact, employee, by com- deceased hearing produced petent at a De- evidence before the Zschock, Krueger supra; Waunakee, supra; partment.
605 ; Comm., (1941) v. Industrial 295 N. 237 Wis. W. Foundry Universal Industrial Co. v. Wis. supra. (1937); Kuetbach, classi 272 N.W. (2) (a), ex are fications set forth sec. 102.51 those classi clusive. a claimant falls within one of Unless fications, fact, regardless he of will his qualify not be entitled to death for benefits. pre- Stats., provides for conclusive
Sec. a sumption dependency, of as follows: Dependents. following “102.51 ARE. The WHO conclusively presumed wholly shall be solely to be dependent support upon employe: for a deceased A wife upon a living husband with whom she is at the time death; upon a husband a wife with whom he living death; is at the time of her a child under the age years (or age, physically over said but or mentally incapacitated earning), upon parent from living with whom he is at time of the death of such parent, being surviving dependent parent. no there dependent presumption Where a to the entitled in this employe, subsection survives the deceased all other de- pendents of the charging any portion shall excluded. The support upon and maintenance a child one any parents, voluntary or contribution toward support by obligation support parent, of a child or an parent any a child shall such constitute parent meaning within the of this section.” presumption conclusive 102.51(1), Stats., applies degree of dependency spouse which the or upon child has the deceased and the spouse fact dependent. or child is a is, spouse That child or meet- ing the criteria of sec. conclusively pre- dependent sumed to upon support deceased solely wholly to be upon the deceased if liv- ing with the deceased as defined the statute. The *10 from child spouse or presumption frees
conclusive degree dependency of establishing dependency would-be required of all other competent evidence as is in forth set dependents the classifications fall within who does presumption 102.51(2), conclusive Stats. The sec. establishing however, spouse from free or child not, they that were fact, spouse or child and they are in that of his death at the time “living with” the deceased in fact 102.51(1). of sec. under terms 102.51(1), presumption of sec. the conclusive While degree dependency Stats., and establishes of affects expand the dependent, it as a does one’s status may category persons be of those who or classifications 102.51(2). dependents under sec. considered supra, supra, this court Kuetbach, Waunakee, In Stats, 102.51(1), (and predeces a similar held that sec. presumption statute) only dealt conclusive sor relating degree dependency and that 102.51 of sec. only persons belonged (1) involve who also one could 102.51(2). In described in sec. of classifications pp. Waunakee, supra, at 523-524: this stated language very of “The sec. eligible may dependents implies to death that there be than in sec. other such enumerated benefits obliged they that it correct to infer are establish dependency by their evidence with reference to facts. However, opinion groups, we are that both those and those conclusively presumed to be who are evidence, obliged dependency by are their who must establish belonging qualify to a in class described sec. 102.51(2).” conclusively Zschock, supra, this court found the In illegitimate presumptive chil- two “living upon upon dren their deceased father based language appellant in with” Stats. argued (because they the children there were non- acknowledged illegitimates part and not in fact of the family) any (2) father’s did not fit into sec. 102.51 dependents. and thus classifications could never This agree, stating p. court did not at 237: . appellant-widow] “. . She asserts there [the may people qualify (1) who under sub. sec. 102.51 dependency not presumption conclusive but who agree. are excluded It sub. We do would appear ‘family’ that when the word was used in sub. (2), it qualify was intended that all who part children family, (1) under sub. would be considered legislature ‘living expanded concept and when the with’ sub. favor of a child outside the immediate *11 household, it that did not intend the benefit conferred destroyed (2) by considering by should be excluded that child sub. family. from (2) conclude that We sub. was intended to limit of those are not entitled the class who presumption dependency, to the conclusive of but who dependency otherwise fact. The establish in result Canning Corp. reached in v. Industrial Comm. Waunakee (1955), (2d) Wis. 68 N.W. is consistent present our with statements in that that conclusion. Certain however, therewith, in opinion, extent are are conflict and to . withdrawn. . .” Exactly what statements Waunakee, supra, of to were be withdrawn was unclear. If Zsehock, the decision in supra, interpreted were to holding be as that 102.51 sec. (1), Stats., independent a established basis of sec. 102.51 granting person a dependency, of status such reading Zsehock, supra, of be in error. This Zsehock, supra, in court length went to to considerable legislature establish that the not could have intended wording of sec. destroy to the benefit (1). accorded in sec. 102.51 Thus, court this held that the concept “family” of as in 102.51(2) used sec. must necessarily encompass expanded “living concept with” as used in 102.51(1). sec. This court considered 102.51(1) together (2) and sec. it implicitly and held qualified whoever as a former, under the set classifications also within one must have been at subsec- This looked both forth in latter. dependent. Thus, the to determine who be tions could limit the to intended . . sub. statement “. pre- not entitled to conclusive of those are class who establish sumption dependency, who otherwise but dependency .” and the “[c]er- in fact. . withdrawal su/pra, Waunakee, in should tain statements” the con- persons to taken mean that those entitled not also must presumption under clusive forth in sec. of the set be included in one classifications 102.51 supra, holding ZschoeJc,
To read that sec. as dependency independent an basis for establishes contrary Kwetbach, previous would be decisions supra, Waunakee, supra, and would inconsistent interpretation remaining perti- reasonable nent section of workmen’s law. 102.51(4), Stats., provides: Section “(4) DEPENDENCY OF DATE OF INJURY. AS Questions as to who and the extent constitute of their the shall the date be determined as of injury right employe, any their death irrespective time, benefit shall fixed of such become any subsequent change conditions; the death directly payable shall be benefit the recoverable *12 dependents legal guardians their entitled thereto or trustees; dependent or of of a case the death whose right of fixed, to a death benefit so much has thus become unpaid payable same as is then to his shall be representatives personal gross.” added.) (Emphasis dependency
If the of at the status is be established injury time of the 102.51(4), Stats., under and if sec. 102.51 indeed (1), sec. does or establish new basis classi- fication for of the outside classifications set 102.51(2), provisions forth in statutory sec. then the would be That inconsistent. would be so because the 102.61(4) critical time frame the time of in- of sec. is jury, 102.51(1) while that of of sec. is time death employee. Thus, of the there one set of de- would he pendents, i.e., those under sec. whose status dependents as would be of determined as the time of death employee, dependents, and another of set i.e., 102.51(2) those under sees. whose status be would determined as of the time injury employee. inconsistency appar- absurd results be would following
ent in the
employee
An
injured;
case:
was
then
married;
injuries
then died as a
result
while
“living with”
provisions
his new wife. Under the clear
because the wife was not a
spouse
injury
at the time of the
she
not
could
con-
dependent.
sidered a
But
102.51(1)
if sec.
established
new
dependency,
basis
the wife would
considered
only
dependent
wholly-dependent dependent
but a
“living
employee
because she
with” the
at the time
of his
death. One section of the workmen’s
specifically
law would
exclude the wife as a
grant
while the
presumption
other
her a conclusive
dependency.
Statutes
not be
should
construed
reach such unreasonable or absurd results. Schwartz v.
(1976);
ILHR
Dept., Wis.2d
611 dependent, i.e., held that the a wife’s status as a as spouse, injury must be the the and viewed as of time of Thus, not as of the that time of the death. court held this presumption the by conclusive accorded then 2394-10 (3), grant operate Stats. did not wife to a dependent new at status a which she not have did the of injury. pp. 384, time the at 385: This stated urged “It strongly 3(a) 102.51(1)] is that sub. [now separate dependents a creates of the class and fixes degree of their is dependency, and that the fact when established that wife at the with her husband the time the dependency of his death the fact of and degree dependency conclusively of are in ac- established provisions (á). cordance with the of sub. ignores language plain a “Such construction the of 102.51(4)]. construed, 3(a), sub. 5 (b) , So and [now sub. (c) exceptions provisions be in the nature of the to of sub. and to that extent in conflict it. with Sub. prescribes determining degree the method of the de- of pendency; dependents of sub. the the limits to classes persons as of described; prescribes time therein and the sub. relating questions dependency all to which to and depen- equally among them, persons partially shall he divided and dent, any, part thereof; if if more shall receive no there is person partially dependent, than benefit shall be one death the among’ according divided dependency. them extent of their to the relative person dependent “4. No be shall considered unless a member family employe, spouse of the deceased or a divorced who remarried, has not or one who to him the bears relation of husband widow, descendant, or or ancestor, lineal or or brother or sister. Questions dependents “5. as to who constitute and the extent of dependency their shall determined as of the date of the acci- employe, right any dent to the and their death benefit shall time, irrespective any subsequent change become fixed as of such conditions; directly in and the death benefit shall be recoverable dependent payable or the entitled thereto legal guardians trustees; provided or their that in case of dependent right death of a whose death benefit has thus be- fixed, unpaid come so much of as is same then shall re- payable personal representatives gross. coverable person No shall be as a excluded who is nonresident alien, .”.. No degree dependency determined. are to be bring provisions can himself within claimant act accident within Having he by establishing date except that he was 4. in snb. persons described class appears fact, if it further established (c), (b), or provisions 3(a), of sub. was within established, conclusively degree ac- proven and found in all other cordance it must be cases accident. date of the as of the fact legislative . .” intent. . clearly the we think was Such *15 that appeal is not question on this Thus the ultimate appellants the posed extensively both and discussed question ultimate respondent the in their and briefs. death, the time of his David Nelson is not whether at the obligation respondent support under an the had ques- A on that decision terms of sec. Stats. respondent fell within presupposes the fact that the tion one of decision the sec. classifications or not question only determine on that whether respondent to a conclusive the would then entitled solely dependent wholly presumption that he was support. question upon The ultimate Nelson injury, respondent, the the on date Nelson’s whether That the 102.51 fell one of sec. classifications. within 1971, respondent 26, the “. . . was member is, on June spouse family spouse, or a who has of the or a divorced ancestor, remarried, lineal descendant or or not brother employe.” of the deceased or sister appellants rely upon in this decision court’s Kuetbach, supra, support their contention that a posthumously born cannot be a the child under Kuetbach, supra, workmen’s the law. In employee injured December, was 1915. Prior that time, acquaintance, Etta, pregnant had a woman become employee. 1916, May 18, employee On married; employee Etta on were June as died injuries; 21, 1916, of the and on June a result the child applied Etta and the child was Both for death born. to Etta and benefits. court denied death benefits This the child. against granting argued
The industrial commission grounds benefits to the child on the that: legiti .“. . he not time the accident a at the mate child en ventre mere sa womb [in mother]; dependency proven no actual could be on date of accident at time of the death nor deceased, subsequent changes, the marriage such as not Kuetbaeh, and Etta could the deceased enlarge child, rights of the unborn inasmuch as rights determined, parties of all are to be in accordance accident. . Kuet with sub. the date . bach, swpra, 381, 382. As with the dependent, case of the wife’s status as a this court did base its decision on the “conclusively presumed” language 2394-10(3) of sec. 102.51(1)]. sec. Rather, [now this court determined whether the child fell within the classifications set forth 2394-10(4) in sec. stating 102.51(2)], [now Kuetbaeh, supra, at 384: upon are not called “We in this case to determine what the result lawfully would be in married, case a man were *16 pregnant living his wife injured, and him when he was born, thereafter the child should be the wife die, should and later the ques- husband should die. The presented by tion entirely this record is different. Here marriage there was no at conception valid time of the of the child at and the time of the accident the status might child not was fixed. It thereafter be made legitimate the marriage child of the subsequent deceased such, Kuetbaeh, to Etta but certainly it was not day on the on which the occurred, accident as of which questions all date of dependency must be determined. subsequent In this case there change, was a wit, intermarriage of the deceased Kuetbaeh, Etta expressly says any
the statute subsequent change that rights not parties, shall alter the which are to be determined place any as of date To accident. upon other ignore construction this statute is to away plain language construe of sub. 5. circuit court found that the Kuetbach decision The did not make it it clear whether was the illegitimacy, posthumous disqualify birth or both which was held language upon the child. Based which above cited Kuetbach, deciding stated what this court was not swpra, though Kuetbach was upon the fact that even distinguished Waunakee, supra, the latter im- case’s plications dicta; subject posthumous on the birth were Kuetbach, correctly circuit concluded that supra, was not stare decisis on the posthumous issue birth.
Regardless of supra, the Kuetbach, how one views de- cision, it does question decide the ultimate this appeal; that is, respondent whether the 26, 1971, on June fell within one of the sec. 102.51(2), classifica- tions. long
This court has
that a
held
claimant for workmen’s
compensation benefits has the
establishing
burden of
he is entitled to
Lager
Depart
those
v. ILHR
benefits.
ment,
50 Wis.2d
(1971) ;
N.W.2d 300
Brickson
v. ILHR Department, Wis.2d
The classifications in sec. 102.51(2), Stats., on their face, imply application persons; is, *17 persons who are alive and occupying required re- to, lationships at the time of the injury the employee.
615 forth in have re- classifications set see. fairly inception mained static since the of the workmen’s compensation family law. Both the mem- classification bers and the lineal in classification of descendants were original legislation.3 interpretation A literal of sec. 102.51(2), Stats., preclude including an unborn child within those classifications.
It is
generally adopted
true that this court has
a liberal
compensation
construction of the
workmen’s
statutes
accomplish
objectives
injured
their
protecting
overall
employees
depend
employees
and those who
on such
for
support. Neese
Society,
v. State Medical
497,
36 Wis.2d
County
153
552 (1967);
Grant
Bureau
N.W.2d
Service
v.
Comm.,
Industrial
579,
25 Wis.2d
131
293
N.W.2d
Condensing
Western
(1964);
Comm.,
v.Co.
Industrial
458,
262 Wis.
v.
Severson
In
(1952);
55
363
N.W.2d
Comm.,
dustrial
169,
221
(1936).
Wis.
266
235
N.W.
Furthermore,
this court
held that
has
the Act should be
entirety
legislative
read
its
order
ascertain
v.
Comm.,
Chilovi
Industrial
intent.
482,
246
17
Wis.
Co.,
Zarnott v. Timken-Detroit Axle
(1945) ;
N.W.2d 575
244
Standard Oil Co. v.
(1944);
Wis.
13
53
N.W.2d
Industrial
(1940);
234 Wis.
616 been interpretation lineal has descendants legitimate living judicially expanded to include both supra; Waunakee, illegitimate children. blood related Zschock, supra. con relationship not been Blood has family necessary membership in a sidered establish implies family relationship under the but such a statute, legitimate woman. tie a man and marital between Comm., T. J. Moss Tie Co. v. Industrial 57, 28 251 Wis. Duluth-Superior Milling v. Co. (1947); N.W.2d 884 Comm., 515, Industrial 226 275 276 N.W. Wis. N.W. Hall v. Industrial (1937) ; 162 300 165 Wis. Comm., (1917); Armstrong Industrial v. N.W. (1915). Wis. The court decisions N.W. expanding interpretations of the otherwise literal statu tory classifications, all have been directed toward persons. meaning interpretation
Because literal and obvious summarily 102.51(2), Stats., of the sec. classifications respondent, interpretation exclude the he must turn to an legislative respondent intent. If the to meet benefits, establishing burden his entitlement to death by showing legislature he must do so that intended posthumously are to included as born children (2) within the sec. 102.51 classifications. respondent attempts to two to do so resort other sections of the workmen’s law. 102.51(1), Stats., grants Sec. presump- the conclusive dependency. tion of it stated, As has been does itself establish a persons new may classification of who considered dependents, operative but rather becomes only person already when a has established his as status falling within one of the sec. 102.51 classifications. If said, it person can be however, meets criteria by necessary of sec. then implication that person also fall must within one of the sec. general legislative in order that
classifications intent Zsehoek, supra, out. respondent, be carried 237. That the effect, foregoing reasoning on the relies is evidenced place attempts to himself within the fact that he parameters of sec. 102.51 102.51(1) has also
As with sec. liberally The criteria interpreted by been this court. spouse admittedly or “living applied persons with” interpreted early employee, children of the was deceased legal or actual to include all there no cases where relationship family relation severance the marital *19 although might physical separa ship, a there have been spouses interpretation applied to who The liberal tion. 102.51(2) already fell within the classification. sec. Stojic Comm., v. Industrial 228, 205 795 188 N.W. Wis. 293, City Rowland, (1925); Belle M. I. Co. v. 170 Wis. (1919); Northwestern Iron v. Indus Co. 174 899 N.W. (1913). It Commission, trial 97, 142 271 154 N.W. Wis. the applied equally children fell within sec. to who also family lineal de member or classification of Comm., F. Trantow Industrial 262 C. Co. v. scendant. v. Olson-Walker Co. (1952); 884 55 N.W.2d Wis. Comm., (1932); Industrial 242 207 350 N.W. Wis. Comm., Industrial Milwaukee Western F. Co. v. 179 223, 190 N.W. Wis. original legislative to the amendments
Subsequent pro- today, which legislation, exist to those which down support maintenance degrees vide that various “living under with” a to constitute serve of a child would scope expanded the further sec. court’s liberal presumption. This to those entitled legislative ex- subsequent amendments interpretation and presumption scope entitled of those panding the persons. living directed toward have been an Stats., specifically now states Sec. parent constitute shall obligation support a child to meaning of parent any within living such argues respondent that on the date 102.51(1). The sec. obligation sup- just to an injury had such Nelson respondent. port the paternity question.
Nelson’s Had is not here in respondent injury, there been born at the time of the would question have have been no that Nelson would obligation then support respondent. had an That obligation obligation of a have flowed from the support illegitimate father child, even an which ob- ligation pa- is reflected in serves basis ternity proceedings through set forth in sec. 52.21 52.45, Zschoek, supra, 236, specifi- Stats. This court cally question declined to decide of whether phrase “obligation support a child” includes obli- gation illegitimate support of a father to an child when obligation express has not been reduced to an ternas adjudication agreement. earlier This court’s decision Shea v. Industrial Wis. N.W. obligation had however, determined an support necessarily any son did entail ad- judication. respondent here was not alive the date of
injury. contingent His future obviously existence was *20 upon being born alive. Until that occurrence there obligation no support being to because there was no supported. to be respondent, citing
The Stats., argues sec. 52.37(1), obligation that Nelson did an support have to him at the injury. time of the That section reads: Judgment. (1) “52.37 If the defendant is found the father of child, or admits the allegation, truth of the or enters into a agreement, settlement he shall ad- judged to be the father child, paternity of such unless is agreement, denied in such settlement and shall be ordered pay expenses to all lying-in incurred for and attendance during pregnancy, of the mother past and also for the support child, care and of the from the time of its birth until the approval agreement date of the of the or the entry of judgment. If the child is dead at time of trial pay expenses he shall expenses the funeral and the payments of the last All illness. expenses and stated paid by herein shall be the accused to a trustee, and specifically pro- agreement judgment or shall settlement per- indicate the for vide the amount of disbursement shall make such.disbursement.” son whom the trustee respondent The overlooks the sec. fact Stats., operative becomes after a defendant has been adjudicated to be father or a de- of the child after allegations brought fendant has the truth of the admitted against Moreover, legal paternity him in proceedings. adjudication occurred, if (1) even such an had sec. 52.37 clear in expenses is its delineation those which will be pay assumed defendant. He be ordered will expenses “. . all lying-in . incurred for and attendance during the mother pregnancy (Emphasis . .” . added.) He pay past will ordered to . . also be for “. support child, care and of the the time its birth. from (Emphasis added.) . . .” The distinction clear cut— is support regard pregnancy of the mother in ex- penses support and the of the child birth, before after argument respondent support birth. of the during lying-in period the mother is, effect, sup- port of any the child is too tenuous to merit in the have legislatively face clear cut drawn distinction be- birth, tween mother and child, before after which is reflected in sec. 52.37 respondent next draws this court’s attention provides which for additional part:
death benefits for children and which states death children, Additional state “102.4-9 benefit for (1) beneficiary Where under s. 102.46 or fund. (1) s. 102.47 is the wife husband of deceased em- ploye wholly dependent support, for an additional paid provided by benefit shall from the funds death marriage sub. each child their at the of the death the employe, time who is likewise wholly dependent upon support. him for Such additional *21 computed shall be from benefit the date of the death of employe year age the as For the follows: one child (including posthumous child), under equal a sum to average earnings the times annual iy15 of the deceased employee. . . (Emphasis added.) .” recognizes pur specifically that for The above section poses a “child" includes of additional death benefits 102.49, Stats., purpose “posthumous child.” of sec. not to spread in certain cases so as was the risk or loss employer. This upon heavily too the individual bear court, citing B. Industrial F. Sturtevant Co. v. Schwartz (1925), in stated 10, 15, 186 Wis. 202 N.W. Dept., supra, v. ILHR 221: “ recognizes 102.49, that in *. . . It [sec. Stats.] large family of employee of the death of an with a
case small adequate children, compensation, in order to larger of de- equitable, and pendency much than in cases must be upon only person where one was ” support. deceased for . . .’ 102.49(1), that The critical Stats., feature sec. recognizes it for additional for children need benefits though though spouse even survives even sec. dependents them if would otherwise exclude as dependent spouse also survived with the deceased at the time of his death. fact, Stats., specifically
In ties in sec. concepts additional death benefits with stated, 102.51(1). in sec. As has stated been necessarily implies there in is also a tie classi- fication of 102.49 102.51 Sec. sec. states: “ (4) any Dependency purposes child for the of this according provisions section shall be determined subsection 102.51, (1) of manner as would section like surviving dependent parent.” if
be done there was no exclusively Section deals computation spouse of additional death benefits to the (who already dependent) has determined to be a been the child. See 102.49(7). for the benefit legislature very specifically fit fact that the saw add posthumously provision for born children in the sec.
621 spe- making the 102.49(1) computation4 same without 102.51(2) change 102.51(1) sec. cific or sec. sec. legislature in- specifically that the indicates flowing posthumous limit chil- tended to to the benefits 102.49(1) dren to the additional benefits sec. posthumously sur- child was instances where born by dependent parent. vived legislature clearly made the determina- has
Since eligible posthumously tion that children shall be born benefits, primary not to receive additional benefits but hardly result, public policy, reflecting, does, it can that compensation is to be be deemed absurd. Workmen’s Questions wholly statutory. properly should what concerning by the public policy it are determined Harry Frisbie, supra, legislature 85; not the courts. Son, 436, Inc. v. Industrial Crow & 18 Wis.2d 442, (1963). 841 As this court stated N.W.2d recovery Frisbie, supra, pathway . 89: “. . Where legislature legislation, by it is the has been narrowed also: See pathway.” alone can that which broaden Department, 332, v. ILHR 328, Halama Wis.2d N.W.2d 784
The fact relates sec. sec. says 102.51(1) exactly . . for means it what —“. only for purposes of . . .” Thus this section [102.49] posthumously purposes chil- of sec. 102.49 will born 102.51(1) concepts de- dren be amenable sec. Therefore, pendency. conferred benefits negated interpretation 102.49(1) not an of sec. are clearly which otherwise excludes posthumous primary children from benefits. legislature clearly limited the has benefits
Where posthumous children will flow to under the which work- compensation law, appears it and where men’s charged Department, administration of that Chapter 403, July See: Laws see. 1931. effective law, applied preclude posthumously it has so as born qualifying primary children from it not benefits, is meaning change for this court to obvious law. legislatively Compensation Act Workmen’s is merely created substitute for the common law *23 supplemental formerly 102.51(4), Stats., thereto. Sec. legislative (1915), sub. 5 of sec. 2394-10 a enactment is provides questions which as to “. . . constitute who the dependency extent of their shall be injury employe, determined as of the date of the right their any to death benefit fixed shall become time, legislature as of such . . wisdom, .” In its has fit to provide seen amend sec. to additional posthumous death benefits for dependent children of a surviving spouse. perceive presented by We the issue the facts of requiring policy this case to be one decision legislature judicial and not one of statutory con- Many struction. necessarily require factors would con- policy Among sideration in such a decision. them would effect, any, be the if of paternity determination Department any pending ILHR in subsequent probate proceeding. provisions
Since this case deals with the of the Wis- varying consin law not with the compen- workmen’s states, sation statutes of other respondent’s to resort authority out-of-state persuasive. in this instance is not judgment of the circuit court is reversed and the remanded, cause with directions for the circuit judgment affirming enter Department the order of the Industry, Labor and Human Relations.
By Judgment reversed and cause remanded Court. — proceedings for opinion. consistent with this I affirm (dissenting). ABRAHAMSQN, J. would judgment of the circuit .court. posthu- question whether
This case turns on of the “illegitimate mously child” was born in- the date within sec. 102.51 deceased interpre- jury. majority says applying a “literal it is injury time of at the tation” finds that a child in category of lineal descendant falls within it I think not. that an unborn child does but Compensation Act keeping with the more Worker’s Compensation Act) apply a familiar (nee Workmen’s construction, namely In other “relation rule back.” person and unborn of the law a who is conceived areas alive) existence (and is to be in then is born deemed gestation application during period purposes Bergin Haskell, particular rule. & Preface Cf. Interests, and Future Thus Estates in Land “illegitimate posthumously I find that born injury. at the time of child” is a lineal descendant alive step The next fact establish the *24 posthumously illegitimate of a born child. 102.51 Sec. (1), provides Stats., presumption a conclusive of de- pendency parent obligation support if a has an majority child. The concludes that the father has no obligation during support “illegitimate child” gestation. majority The notes that sec.
requires payments during preg- for the mother’s care nancy require support but does not of the child until majority argu- after labels birth. as “tenuous” the support during ment that pregnancy of the mother inis support nothing effect I of the child. find about tenuous argument. biological soundly this It is based fact. majority (1) notes that sec. 52.37 does not become operative adjudication until after an of or an admission of paternity, may which occur substantial time after birth. obligations Nevertheless the father’s and the amount of payments from the relate back to and are determined conception. date legislature’s expressly providing
I have considered the secondary posthumously for chil- death benefits born Judge dren in correct- Stats. Currie has ly interpreted legislative He wrote “There is intent. perceivable posthumous no why reason should child secondary (1) receive death benefits under sec. 102.49 primary 102.51(1).” be denied death benefits under sec. Although posthumous specifical the status of a child ly governed by particular compensation workmen’s adopted particular state, interpreta statute placed tions other states have on their are statutes helpful considering Judge Currie Wisconsin law. in his memorandum decision referred to text numerous judicial book authority authorities and states other support which the conclusion that death should benefits posthumously See, accorded born children. Annot. Compensation: Workmen’s Posthumous Children and Children Born Accident As Dependents, 18 A.L.R. After (1968); 3d 900 Ide Scott v. Drilling, Mich. (1954); Shelley N.W.2d 133 Woodwork, v. Central Inc., 207 Tenn. (1960); Burch, S.W.2d 896 Green v. 348, 189 Kan. P.2d 892 interpretation Given the generally liberal this has accorded given to the worker’s statutes and legislative design purpose compensate dependents of employees, deceased I hold legislature intended that posthumously illegitimate born qualify child could as a under sec. 102.51 Stats.