Opinion
April 30, 1965 —
June 1, 1965.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellants there were briefs by Jasper, Winner, Perina Rouse of Madison, and oral argument by Robert I. Perina.
For the respondent Industrial Commission the cause was argued by James P. Altman, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Gordon Samuelsen, assistant attorney general.
For the respondents Employers Mutual Liability Insurance Company and Kisting Construction Company there was a brief by Klueter, Larson MacKenzie of Wausau, and oral argument by Elton E. Larson.
This appeal is to obtain review of a judgment rendered in the circuit court for Dane county which affirmed an order of the Industrial Commission, which had denied the claimants' application for death benefits based on total dependency. It is undisputed that the deceased was acting within the scope of his employment at the time he was killed.
The claimants, George and Leona Forde, are the parents of the deceased, Lyle Forde, who was killed in a traffic accident on October 16, 1962, while operating a truck for the defendant, Kisting Construction Company. The deceased, a single man aged twenty-five, lived on a 90-acre farm with his parents and his younger brother, Roger, who at the time was a sophomore in high school, and his older brother, Maynard, who was a part-time worker. George and Leona Forde also have two other children who live away from the farm. None of the children other than the deceased provided any support to their parents.
Prior to 1952, George Forde operated the farm, but in that year he became disabled and was prevented from performing the necessary chores on the farm.
In 1958, George and Leona Forde received support from Lyle when the latter, at his own expense, planted a crop of tobacco and turned the proceeds of $2,000 over to his parents. From 1959 to 1961, Lyle was in the military service, and he frequently sent cash home to his parents. Because of the financial difficulties at home, Lyle was given a hardship discharge from the service. On his return from the military, Lyle worked full time with the defendant Kisting Construction Company, and he also worked the farm during evenings and on the weekends.
The farm produced gross income of approximately $1,700 in 1962. Lyle paid the electric bills, his father's medical bills, the cost of local transportation, the cost of repairing and maintaining machinery and fencing, and the bills for the custom work of hay baling and corn picking. Lyle also provided the groceries for the family, and he paid for his younger brother's clothes and school expenses. All this was in addition to cash he gave his parents from his earnings as a truck driver.
The record title to the farm was held by George Forde's two brothers, Ole and Selmer Forde. They had purchased the farm in 1943 for $3,500, and, in the same year, George Forde orally agreed to purchase the farm from them for $3,500 plus interest. The claimants moved onto the farm that year and equipped the farm with livestock and farm machinery. As of the date of Lyle's death, George Forde had not paid the purchase price of $3,500.
For a time, George Forde paid the interest on this debt plus the real-estate taxes on the farm and insurance premiums on the farm buildings. However, at the time of Lyle's death, the real-estate taxes had been in arrears for three years, and the 1962 insurance premiums had not been paid; no interest on the purchase price of $3,500 had been paid since 1952.
Although George Forde's disability prevented him from working the farm, he earned $802.65 in 1961 by selling cattle feed on a part-time basis. In 1962 he received $350 for this work. He used Lyle's car in connection with his cattle-feed sales work. George Forde also received $98 from the Soil Bank, and his wife, Leona, earned about $25 harvesting tobacco in 1962.
On these facts the commissioner's finding was that the applicants were not totally dependent upon Lyle Forde within the meaning of sec. 102.46, Stats., as they had received substantial support from other sources. Recovery was limited to $2,000 for partial dependency pursuant to sec. 102.48. It is from a judgment of the circuit court affirming this finding which claimants appeal.
The Industrial Commission found that George and Leona Forde were not solely dependent for support upon their son, Lyle, and we believe that such determination must be upheld.
The record shows that there were a number of sources of support for the claimants other than their son, Lyle. George Forde had some small ($350) earnings from his sales of cattle feed. Even though George Forde used Lyle's automobile in connection with this sales work, the commission could nevertheless treat such earnings as an item of support not wholly supplied by Lyle. In addition, Leona Forde earned $25 harvesting tobacco, and the sum of $98 was received from the Soil Bank. As a more-significant factor, the commission found that the claimants received their shelter from a source other than Lyle.
As appellants, George and Leona Forde contend "that their own earnings should be regarded as de minimis. They also contend that Lyle Forde not only operated the farm but also that he assumed his parents' agreement to purchase the farm from Ole and Selmer Forde; upon this reasoning it is urged that it was Lyle who actually supplied shelter to the claimants.
The burden of proving total dependency is on the claimants. Fitz v. Industrial Comm. (1960), 10 Wis.2d 202, 205, 102 N.W.2d 93; Neumann v. Industrial Comm. (1950), 257 Wis. 120, 122, 42 N.W.2d 445; Beem v. Industrial Comm. (1943), 244 Wis. 334, 337, 12 N.W.2d 42. In Burrows v. Industrial Comm. (1944), 246 Wis. 152, 154, 16 N.W.2d 434, it is stated:
"There is no middle ground. Dependency is either partial or total. To be total the applicant must be wholly and solely dependent."
Even though the independent earnings of George and Leona Forde were very modest, we cannot say that they were de minimis in light of the family's meager standard of living which is reflected in the record. In our opinion, the earnings of the claimants and the outside support furnished to them were not so insignificant as to bring into play the rule that de minimis non curat lex. Neumann v. Industrial Comm., supra. Cf. Cherry v. Industrial Comm. (1944), 246 Wis. 279, 16 N.W.2d 800, and McKesson-Fuller-Morrisson Co. v. Industrial Comm. (1933), 212 Wis. 507, 250 N.W. 396.
Although George and Leona Forde argue that Lyle had assumed the obligation to pay for the farm and had taken over the management, we believe that the record supports the conclusion that legal title was in Ole and Selmer Forde, and that George Forde had an oral agreement to repay the purchase price to his brothers. The record would not, however, support a finding that Lyle was the owner of the farm; this is true even though there may have been an intention that Lyle would become the owner at some future time.
Upon the evidence, it was proper for the commission to have concluded that shelter was provided to George and Leona Forde from a source other than their son, Lyle.
In conclusion, we believe that the commission was not bound to find that Lyle had provided the sole support of his parents when the latter earned approximately $475 in 1962 and also received from someone other than Lyle their residence and a farm which had income-producing potential.
The respondents have moved to strike the appendix on the grounds that it was not served within the time required by sec. 251.43, Stats., and failed to comply with the provisions of sec. 251.34. The court has concluded that, as a matter of discretion, such motion should be denied.
By the Court. — Judgment affirmed.