| Wis. | Nov 17, 1925
By sub. (3), sec. 102.11, of the workmen’s compensation act, it is provided that among those conclusively presumed to be solely and wholly dependent for support upon a deceased employee shall be: A child under the age of eighteen years . . . upon the parent with whom such child is living at the time of the death of such parent, there being no surviving dependent parent; and in case of divorce, “the charging of the full support and maintenance of a child upon one of the divorced parents shall he held to constitute a living with the parent so charged.”
The statute further provides that in all other cases the question of entire or1 partial dependency shall be determined in accordance with the fact as it may be at the time of the accident to the employee.
The only question here between the parties is whether the circuit court was right in determining that the- situation presented one of partial dependency of the child, Harold,
The appellants contend that there was here a question of fact and the determination of the Commission was conclusive, the respondents that it presented a question of law upon which the court below and this court may properly arrive at a different result.
There was presented here for solution a problem with three elements, viz.: undisputed facts; the language of a divorce judgment; the language of the statute. Generally such a problem presents a question of law within the sole province of the court to determine, rather than -a question of fact which may be left to the determination of a jury or some officer or tribunal as a trier of facts. As stated in 1 Jones on Evidence (3d ed.) § 175a: "It is firmly established and universally recognized that the judge is to construe and interpret the contracts and other written instruments of every description that are offered in evidence. Their' construction and interpretation are governed by the established rules of law.” 5 Wigmore, Evidence (2d ed.) § 2556, says: “The construction of all written instruments belongs to the court.”
Were the same situation presented in a trial in the circuit court before a jury, evidently there would be_.no question for the jury and the determination would be for the court alone.
A question of considerable difficulty, however, has been raised under the broad effect given by the workmen’s compensation act to the findings of fact by the Industrial Commission, sec. 2394 — 19 (now sec. 102.23) providing: “The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive.”
Under this statute, where, as here, there was no dispute in the evidence, it has been held that where different conclusions could be reasonably drawn from such evidence, the
Again, in Carey v. Industrial Comm. 181 Wis. 253" court="Wis." date_filed="1923-06-18" href="https://app.midpage.ai/document/carey-v-industrial-commission-8194115?utm_source=webapp" opinion_id="8194115">181 Wis. 253, 194 N. W. 339, a case involving the death of a teamster killed by the collapse of a bam during a storm, the Commission held that it was a hazard common to all and not within the act. This court upheld such finding as being based upon an inference that might be drawn from undisputed facts and that it was a conclusive finding of fact and not a conclusion of law. In Weyauwega v. Industrial Comm. 180 Wis. 168" court="Wis." date_filed="1923-03-06" href="https://app.midpage.ai/document/village-of-weyauwega-v-industrial-commission-8193990?utm_source=webapp" opinion_id="8193990">180 Wis. 168, 192 N. W. 452, the difficulty is again pointed out, and it was there held that the fixing of the status of one claiming to be an employee is a conclusion of law, and the finding of the Commission there that claimant was an employee was reversed. Substantially the same question was presented and the same result reached in Wonewoc v. Industrial Comm. 178 Wis, 656, 190 N.W. 469" court="Wis." date_filed="1922-11-08" href="https://app.midpage.ai/document/town-of-wonewoc-v-industrial-commission-8193858?utm_source=webapp" opinion_id="8193858">190 N. W. 469, and again in Pruno v. Industrial Comm. 187 Wis. 358" court="Wis." date_filed="1925-06-22" href="https://app.midpage.ai/document/pruno-v-industrial-commission-8194767?utm_source=webapp" opinion_id="8194767">187 Wis. 358, 203 N. W. 330, 204 N.W. 576" court="Wis." date_filed="1925-06-22" href="https://app.midpage.ai/document/town-of-pella-v-gresch-8194776?utm_source=webapp" opinion_id="8194776">204 N. W. 576.
We think that under these decisions the question here, requiring as it does a construction to be given to the provisions of the divorce judgment, offered in evidence by the claimant, in connection with the language of' the statute, makes a result reached 'from the consideration of the language of the
Cases from California (Federal Mut. L. Ins. Co. v. Industrial Acc. Comm. (Cal.) 233 P. 335" court="Cal." date_filed="1925-01-16" href="https://app.midpage.ai/document/federal-mutual-liability-insurance-co-v-industrial-accident-commission-3301032?utm_source=webapp" opinion_id="3301032">233 Pac. 335, and Robert Sherer & Co. v. Industrial Acc. Comm. 182 Cal. 488" court="Cal." date_filed="1920-03-20" href="https://app.midpage.ai/document/robert-sherer--co-v-indus-accident-commn-3307141?utm_source=webapp" opinion_id="3307141">182 Cal. 488, 188 Pac. 798) are called to our attention by appellant, but in view of the material difference between the two statutes and our own decisions upon the question we do not care to adopt the views there held.
By the Court. — Judgment affirmed.