184 Wis. 203 | Wis. | 1924
Lead Opinion
The constitutionality of that part of the section above quoted was argued, but we express no opinion upon that subject because it is not involved in this case. The dependency of parents upon their children must be shown as a matter of fact in each case. The law does not infer it. Wisconsin D. Co. v. Industrial Comm. 161 Wis. 42, 152 N. W. 460. And dependency exists only when the amount contributed by a minor child the preceding year exceeds the cost of his support for such year. Milwaukee B. Co. v. Wiecki, 173 Wis. 391, 396, 181 N. W. 308. Here the cost of support exceeded the minor’s contribution, hence there was no dependency. The parents suffered no present financial loss by his death. The workmen’s compensation law was enacted for the purpose of in a measure making good present financial losses and future losses for a limited time based upon present losses. Where there are no present losses there can be no award for future losses. As was aptly said by the trial judge in his- opinion, “This is the fundamental feature that distinguishes the award under the compensation act from damages. under the common
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). The compensation act was passed in 1911. It was an innovation- with reference to liability for industrial accidents. Common-law liability in such cases depended upon negligence without contributory negligence or assumption of risk on the part of the injured workman. It had been found to be unjust, inadequate, and expensive. The compensation act was a substitute therefor, and to establish a more equitable system for relief to injured workers. It was a great humane piece of legislation, and has become firmly established in practically all the states of the Union since Wisconsin led the way. As might be expected, the act was experimental in its early stages, and has received a great many amendments to perfect it in order to carry out the purposes of its authors. The Industrial Commission, created to administer the law, obtained experience under the law that proved valuable in determining the necessary amendments to it.
One of the provisions of the law was to the effect that where an employee received an industrial -accident resulting in death, his dependents were entitled to not to exceed four times his earnings during the year preceding his death. It-
Section 2394 — 9 (4) (c). "... Where, by reason of minority, sickness, or other causes during such year, the foregoing basis is unfair or inadequate, the death benefit shall be such sum as the commission may determine to be fair and just, considering the death benefits allowed in other cases where such untoward causes do not exist.”
This amendment was presented by the Commission to the legislature, with a full explanation of its necessity. The legislature promptly adopted the amendment and it became a part of the law. Thereafter the Industrial Commission administered the law to provide that in cases of minority, where the old basis was unfair or inadequate, the death benefit was fixed at such sum as was found to be fair and just considering the death benefits allowed in other cases where such untoward causes did not exist. In other words, the law provided, and the Commission held, that where a minor, because of minority, was earning less or contributing less than he would have been able to earn or contribute if
In Milwaukee B. Co. v. Wiecki, 173 Wis. 391, 181 N. W. 308, decided in February, 1921, the court went beyond the facts in that case to hold that—
“We are of the opinion that where, as here, a minor contributes his earnings to his family with whom he resides, so much thereof as is actually needed and necessarily used for his individual care and support from the general family purse is to be treated as a sum used' for his individual support rather than as. a contribution by him of the same amount to the support of his dependents under the statute above quoted.”
Now, in the instant case, this court has extended that doctrine and has laid down the rule. “Dependency exists only when the amount contributed by a minor child the preceding year exceeds the cost of his support for such year.” And as applied to the facts in the case, it is held that a boy thirteen years of age, working part time and going to school, who earned $122.35 and contributed the same to his parents during the year preceding his death, and whose upkeep amounted to $188 during such year, furnished nothing to the support of his parents, and they, therefore, were not dependent upon him and were entitled to nothing by way of death benefit under the compensation act. It seems too plain for argument that the court has read out of the compensation act the amendment heretofore quoted, and has put the law back on the old basis which proved so unjust and inequitable. The rule established by the legislature is plain and unequivocal. If, by reason of minority, an employee is unable to contribute to the family support what he otherwise might reasonably be expected to contribute were it not for his minority, the legislature has plainly said that the Industrial Commission, in fixing death benefits,
The court has reached its present decision, to my mind, under a wholly mistaken view jof the law. It first determines that there was no dependency because there was no net contribution. Clearly this is wrong, in the ordinary acceptation of the word “dependency.” A farmer sows his crops and depends upon the growing crops to pay the mortgage and keep the family during the ensuing year. Until harvest time he has had no contribution. It has all been outgo. But there was a dependency that kept him on the job — that gave him faith in the future, — and on' that dependency he might reasonably rely. So the merchant. He buys a stock of goods and depends on future sales for the support of his family and to pay his bills. The dependency is justified for the future just as much as it was in the past. In,other words, can it be doubted that there may be dependency without contribution, the same as there may be contribution without dependency. Certainly the legislature recognized that such was the case. It shocks the sensibilities of mankind to say that poor parents, raising a large family of children, may not depend on the children as they grow older to return in a measure the heavy expense of their early childhood. The duties of parents and children are reciprocal. It is a fact that among poor people the children do reward their parents for their early sacrifices, and the parents do depend upon their children for such assistance.
The amendment to the compensation law quoted was intended by the legislature to meet the exact situation presented to us in this case. It was known to the legislature that a minor employee might, by reason of his minority, be unable to earn a wage that would permit him to contribute to the family support over and above his keep. It was known to the legislature that many boys and girls were apprenticed in order to learn a trade, and that during their
The great majority of children who, like the Baldus boy, are engaged in one form or another of day labor, are children of the working classes, who, more than all others, must be looking forward to the day when these same children will take over a large part of the burden of the'parents. It does not reqúire statistics to prove that they do not earn an adult’s wage, even if they work the limit of permissible hours fixed by statute, and if because of their minority or limitations of hours they cannot earn sufficiently’to make it possible for them to contribute something in excess of the cost of their board and keep, these parents will be subjecting their children to all the hazards of industry without shadow of the right accorded the dependents of other workers.
In the year 1923 the Commission issued regular permits to each of 8,552.children who were less than seventeen years of age and over fourteen. Regular permits are issued for employment during the school year. There were during
It is this situation that makes the decision of the court so shocking. There are thousands of children at work at dangerous occupations which are brought under the compensation law whose dependents are deprived of all compensation by this decision. Common-law liability is taken away by the compensation act, and by wiping out the amendment there is nothing to take the place of common-law liability.
The holding of the. court as to burial expense is equally
“If the deceased employee leaves no person dependent upon him for support, and the accident proximately causes death, the death benefit shall consist of the reasonable expense of his burial, not exceeding $100.”
It will be noted that up to that time the burial expense was paid only in those cases where there was no dependency. The legislature then used the expression “death benefit” as descriptive of burial expense in spite of the fact that there were no dependents. In 1917 the legislature determined that burial expense ought to be paid in all cases and modified the statute accordingly. The only change since 1917 was the increase provided by the 1923 legislature from $100 to $200.
Certainly when one takes into account the wording of this statute prior to 1917, he is forced to the conclusion that the term “death benefit” as used by the legislature contemplated burial expense in all cases, and is not influenced at all by reason of the fact that there were no dependents.
For the reasons stated I respectfully dissent.