Wisconsin Drainage Co. v. Industrial Commission

| Wis. | May 4, 1915

Marshall, J.

Were Mr. and Mrs. Ganzer, at the time their son was injured, to any extent, dependent upon him for support? If they were, within statutory limitations, they were entitled to be compensated for their loss under par. (b), sub. (3), sec. 2394 — 9, Stats. 1911.

There is no presumption of dependency of parents upon their children. Whether such condition exists in any particular case is a question of fact which the claimant must establish by the preponderance of evidence to satisfy sub. 3, sec. 2394 — 10, Stats. The burden in such a case should be regarded the same as in any ordinary civil action. It is not within the function of the trial body to guess at the matter, or dispose of it on any theory of favor, competency, or punishment. Nothing of that sort can legitimately enter into such a matter. Are the surviving parents losers in respect to their dependency for support by the incident of the industry in which their son was engaged at the time it happened ? That is the basic question to he determined and to a reasonable certainty from competent evidence.

We must say, the evidence upon which the finding in the parents’ favor in this case was made is not very satisfactory, but it is not the function of this court to try the issue as an original matter. It extends, 'really, no further than to determine whether there was sufficient evidence to afford jurisdiction to make the finding complained of. This very restricted opportunity for one circumstanced as appellant is for redress, should stimulate the triers of fact to exercise a high degree of diligence, impartiality, and discretion, in discovering the real. facts and basing their conclusion thereon.

In this case we are unable to say that the trial body was entirely unjustified in concluding that the parents of the deceased were partially dependent on him for support. Whether, if we were to pass upon the matter from the standpoint of such body, we would come to the same conclusion it did, is quite another question. There is ample evidence that deceased was an industrious young man and inclined to deal with his parents very much as if under age; that he was fond of and freely turned over his earnings to them. The evidence indicates that he expected to he paid back some time when he needed the money to buy a farm, yet it shows that the money was not invested and kept for him, and that he did not expect. it would be. Tbe money was used for family support and together with tbe other sources of income was not sufficient to create any surplus. Tbe evidence rather indicates that there was still a deficiency, notwithstanding the fairly good earnings of the father. In face of the fact that 'the deceased was accustomed to turn over to his mother part of his earnings; that she spent the same for family support and, probably, as he supposed she would; that it took all thereof and the ordinary family income to meet the expenses, — we are unable to conclude the case does not fall within the statute because the son supposed that, ultimately, his parents would, in some way, make return to enable him to buy a farm. '

By the Gourt. — The judgment is affirmed.