Milwaukee Western Fuel Co. v. Industrial Commission, 179 Wis. 223

179 Wis. 223 | Wis. | 1923

The following opinion was filed November 8, 1922:

Eschweiler, J.

Under the situation disclosed by the record and recited above, the motion by respondent plaintiff for a review of portions of the judgment to which it had filed exemptions was too late and cannot be considered.

The right to a review of portions of a judgment by a respondent is granted by the provisions of sec. 3049a, Stats., created by ch. 219, Laws 1915, the material portion whereof is as follows:

“In any case the respondent may have a review of the rulings of which he complains by serving upon the appellant any time before the case is set down for hearing in the supreme court a notice stating in what respect he asks for a review, reversal or modification of any part of the judgment or order appealed from.”

Rule 28 of this court provides:

“The calendar causes shall be assigned for argument at such time and in such order as the court may direct.”

Rule 29 provides:

“Not less than twenty causes shall be placed on each assignment, and the clerk shall as soon as practicable after an assignment shall have been made up, transmit a copy thereof to each attorney or firm of attorneys appearing therein.”

Under the provisions of sec. 3049a, Stats., supra, a respondent to take advantage of the privilege thereby granted must serve notice of such proposed review before the cause in which such appeal has been taken has been regularly assigned for argument, under the rules and direction of this court. In the instant case this cause was so set down for hearing on or before August 8, 1922, when the list of causes for the September assignment was made up and long prior to the giving of respondent’s notice. The notice, therefore, was served too late to entitle the respondent to be heard as a matter of right on the points it sought to have reviewed. Nevertheless, in view of the public nature of the question and the evident possibility of its again arising in matters before the Industrial Commission, we deem it proper to express our present view that the workmen’s compensation act, as was held by the court below on the several hearings, does cover and include alien enemies. That when such an act expressly refers to and includes aliens, such term, in the absence of legislation, state or federal, to the contrary, must be construed to be generic and to include the specific. By sec. 2394 — 7, Stats., of this act the definition of “employee” expressly includes “aliens” (sub. 4). In defining dependents who may be awarded compensation it expressly provides (sub. 5, sec. 2394 — 10) that no nonresident alien shall be excluded. Provision is also made by sec. 2394 — 17m, added to the act by ch. 624 of the Laws of 1917, for payments for alien dependents through consular officers or their accredited representatives residing within this state, with no exceptions made as to any foreign countries.

Although this question was not presented on the former appeal of this case (172 Wis. 561, 179 N. W. 763), this court expressly recognized the title of the alien property custodian to the fund here in question and which title must necessarily come through the right of an alien enemy dependent. There was the same situation in the case of Youghiogheny & Ohio C. Co. v. Lasevich, 171 Wis. 347, 349, 176 N. W. 855. The present general view is one that recognizes the property right of an alien enemy but withholds the possession of the property subject to governmental control and disposition. Breuer v. Beery (Iowa) 189 N. W. 717; Birge-Forbes Co. v. Heye, 251 U. S. 317, 323, 40 Sup. Ct. 160; Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185; Taylor v. Albion L. Co. 176 Cal. 347, 168 Pac. 348, L. R. A. 1918B, 185 and note on p. 189; Kaiser Wilhelm II, 246 Fed. 786, 159 C. C. A. 88, L. R. A. 1918C, 795.

On defendants’ appeal they challenge the holding by the trial court that there was no substantial basis in the evidence for the findings by the Commission that the beneficiary was living with the déceased and solely and wholly dependent upon him for support. In so holding we think the trial court erred. '

Sec. 2394 — 10, Stats., provides by sub. 3:

“The following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employee:

“(a). A wife upon a husband with whom she is living at the time of his death. . . .

“(c) aA child or children under the age of eighteen years . . . upon the parent with whom he or they are living at the time of the death of such parent. . . .”

We see no grounds for distinction between the questions of the living with and the dependency upon a deceased in the case of a child under eighteen and a widow. The statute gives them the same position on both such questions and the court must. Under the facts here presented as to the family relationship, separation, and contributions, were the claim being made by a widow of the deceased instead of a child an award to her would be clearly justified. Belle City M. I. Co. v. Rowland, 170 Wis. 293, 297, 174 N. W. 899. The same view should be taken as to a child, and the conclusion by the Commission on these questions has sufficient support in the evidence and must be upheld.

Under similar statutes the same result has been reached in other jurisdictions. Cronin’s Case, 234 Mass. 5, 124 N. E. 669; Gavaghan's Case, 232 Mass. 212, 122 N. E. 298; Holmberg’s Case, 231 Mass. 144, 120 N. E. 353 (and here the child was living in another state) ; Johnson C. Co. v. McDonald, 143 Tenn. 505, 226 S. W. 215, 218; Pacific G. D. Co. v. Industrial Acc. Comm. 184 Cal. 462, 194 Pac. 1, 13 A. L. R. 725; and see note Ibid. p. 702.

The Commission found, and the trial court upheld such finding, that'the beneficiary on whose behalf the claim was made was alive at the time of the father’s death in July, 1919. The older brother testified to having last seen this boy when he left Austria in 1913. Letters were received in evidence, without apparent objection, written subsequent to that date and evidently referring to Lazo as being alive. The conclusion that this boy was alive at the time of his father’s death must be based, if to be supported at all, by resort to the well-recognized rule of evidence that, the fact being shown by proper, evidence that a person was alive at a certain time in the past, a presumption then arises that in the usual .course of events such person remains alive fpr a reasonable period of time thereafter or until the contrary is shown. Jones, Ev. (2d ed.) § 60. This is but a rule of evidence, by no means conclusive, and in this particular instance has its effect much weakened by the undisputed facts that this boy was within the age probably subject to being compelled to serve in the army and was in a region where actual hostilities occurred. This rule has been applied in cases where the existence of the parties thereto is unquestioned, but where rights arise or liabilities are sustained on account of the alleged existence or death of some third person. We find no case in which such rule of evidence has been applied where a question is raised as to whether the party, on whose ostensible behalf a right is asserted, is in existence. The actual being alive of the son Lazo at the time of the death of the father was an absolute condition precedent to liability, and the fact of that existence being challenged an extremely unusual issue is presented and one which we deem it necessary should have a stronger foundation for. a conclusion that he was so alive than the mere presumption as to continuance of life upon which it must have been based. Such view on a somewhat similar state of facts was reached in Keystone S. & W. Co. v. Industrial Comm. 289 Ill. 587, 124 N. E. 542; National Zinc Co. v. Industrial Comm. 292 Ill. 598, 127 N. E. 135.

It thus appearing that the essential finding as to the existence of a claimant at the time of the accident and death of the employee was based upon what we now hold to have been a mistaken view of the law, we reach the conclusion that the Commission exceeded its powers in making the award and that the judgment of the court below must be affirmed for this reason, rather than upon the grounds stated by the trial court.

Upon these proceedings being returned to the Commission further testimony may be taken on the questions as to whether Lazo Ziroz was in fact alive and, if alive, his age at the time of the death of Stojan Ziroz on July 14, 1918.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, without costs, on January 9, 1923.