his shin. By May 1st the bruise had become infected, and Dr. Harder was called to treat him. He saw him regularly two or three days in succession and once or twice thereafter. He discontinued treating him on May 6th because, as he says, Freygang refused to follow his treatment. On May 7th Dr. Boerner was called, who caused Freygang to be removed to a hospital, where he died on May 14th.

The guardian of the minor children of the deceased filed a claim with the Industrial Commission for compensation. An award of $2,946.39 was made by the Commission against the employer and its insurer, General Accident, Fire & Life Assurance Corporation. In an action brought to have said award set aside, the circuit court for Dane county entered judgment affirming the award. From that judgment the employer and the insurance company appealed.

For the appellants there was a brief by Lines, Spooner & Quarles of Milwaukee, and oral argument by Charles B. Quarles.

For the respondent Industrial Commission there was a brief by the Attorney General and Winfield W. Gilman, assistant attorney general, and oral argument by Mr. Gil

man.

OWEN, J. Appellants contend that the testimony taken before the Industrial Commission conclusively shows that the proximate cause of the death of Robert Freygang was his unreasonable refusal to submit to and follow the treatment of his physician, and that there is no evidence to support the finding of the Commission to the effect that the injury sustained by him on the 27th or 29th day of April was the proximate cause of his death.

The legal principles involved were recently treated in Banner C. Co. v. Billig, 170 Wis. 157, 174 N. W. 544, to which this case is quite similar, and need not here be restated. The only question that need be considered is whether there was any evidence to support the finding of

E. Weiner Co. v. Freygang, 171 Wis. 187.

the Commission that the accident was the proximate cause of the death. The evidence shows that on the 1st day of May Dr. Harder first called upon and treated Freygang. He found an infected abrasion of the leg. He prescribed antiseptic treatments and bandaged the wound. The doctor claims that Freygang kept the bandage on for only two days, and on the third day removed it and told the doctor that he would not use his treatment any more. He examined Freygang's leg then, and the infection had spread above the knee. He told Freygang he thought there was an abscess on the knee and that he ought to go to a hospital and have it opened up. Freygang refused to listen to his advice. Between May 1st and May 6th he called on him five times. On May 6th he made a last effort to induce him to follow his treatment, and because he would not do so he declined further to treat him. On May 7th Dr. Boerner was called and Freygang was removed to the hospital and was thereafter regularly attended by Dr. Boerner.

Appellants contend that because Freygang refused to follow the treatment prescribed by Dr. Harder the infection resulted in death, the proximate cause of which was such refusal of said Freygang and not the accident. In order to sustain this contention it must appear (1) that the undisputed evidence discloses that Freygang did unreasonably refuse to follow the prescribed treatment, and (2) that had he followed it death would not have resulted. An examination of the record convinces us that there was evidence to support a finding either way upon these two questions. While Dr. Harder testifies that he refused to follow his instructions, one Edward W. Klotz, who lived upstairs in the same house with Freygang, testified positively that he did religiously follow the treatment prescribed by Dr. Harder. Upon the second question, three physicians testified that the treatment prescribed by Dr. Harder was proper treatment and that had it been followed death probably would not have resulted. That is the most than can

Ninneman v. Industrial Comm. 171 Wis. 190.

be claimed for the medical testimony. We do not think that upon this testimony the Commission was compelled to find that had the treatment been followed death would not have resulted, which is but a corollary to a finding that the refusal of Freygang to follow the treatment prescribed by the doctor was the proximate cause of death. It is well settled that if there is any evidence to support the award of the Industrial Commission it cannot be set aside. By the Court.-Judgment affirmed.

NINNEMAN, by guardian ad litem, Appellant, vs. INDUSTRIAL COMMISSION and another, Respondents.

February 13-March 9, 1920.

Workmen's compensation: Child of divorced father contributing $10 per month not wholly dependent on father: Evidence: Judicial notice as to amount necessary to support boy: Industrial commission: Findings of fact: Costs in actions to review compensation cases.

1. Under sub. 3 (c), sec. 2394—10, Stats., providing that a child under the age of eighteen years shall be conclusively presumed wholly dependent on the parent with whom he is living, and that in case of divorce the charging of the full support and maintenance upon one of the parents shall constitute a living with such parent, a boy whose care, custody, maintenance, and education were awarded to his mother by a divorce decree requiring the father to pay her $10 per month for his support, maintenance, and education was not wholly dependent on the father.

2. The court may take judicial notice that $10 a month will not support and educate a nine-year-old normal boy.

3. Under sec. 2394-19, Stats., the findings of the industrial commission are conclusive when supported by credible evidence. 4. Under sub. 1, sec. 2394-22, Stats., the action of the trial court in awarding costs against plaintiff in an action to set aside an award of the industrial commission cannot be disturbed, in the absence of an abuse of discretion.

APPEAL from a judgment of the circuit court for Dane county: E. RAY STEVENS, Circuit Judge. Affirmed.

Ninneman v. Industrial Comm. 171 Wis. 190.

Action to set aside an award of the Industrial Commission for $575 in favor of the plaintiff and against the Mineral Point Zinc Company growing out of the death of plaintiff's father while an employee of such company. The Commission found that plaintiff was only partially dependent upon his father for support and made the award accordingly. Plaintiff claims he was wholly dependent upon his father for support and that the award should have been more. The circuit court affirmed the award, and plaintiff appealed.

Alfred Bushnell of Madison, attorney, and David Gardner, Jr., of Platteville, guardian ad litem, for the appellant. For the respondent Industrial Commission there was a brief by the Attorney General and Winfield W. Gilman, assistant attorney general; for the respondent Mineral Point Zinc Company a brief by Kopp & Brunckhorst of Platteville; and the cause was argued orally by Mr. Gilman and Mr. A. W. Kopp.

VINJE, J. On January 18, 1918, plaintiff's father and mother were divorced and the "care, custody, maintenance, and education" of the plaintiff, a boy about nine years old, were awarded to the mother, and the father was adjudged to pay her ten dollars per month "as and for the support, maintenance, and education" of the plaintiff. At the time of the divorce plaintiff's parents were conducting a hotel at Rewey and the mother continued to conduct it thereafter.

Plaintiff's dependence upon his father is claimed to be established by sub. 3 (c), sec. 2394—10, Stats., which provides that the following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employee:

"A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning), upon the parent with whom he or they are living at the time of the death of such parent, there being no sur

Ninneman v. Industrial Comm. 171 Wis. 190.

viving parent. In case of divorce the charging of the full support and maintenance of a child upon one of the divorced parents shall be held to constitute a living with the parent so charged. . . .

The circuit court's opinion upon the issue is so concise and apt that we adopt it as our own. It says:

"The single question presented is whether a divorce decree which awards 'the care, custody, maintenance, and education' of the plaintiff to the plaintiff's mother and directs that the plaintiff's father, the deceased employee, pay $10 a month to the plaintiff's mother ‘as and for the support, maintenance, and education' of the plaintiff, is one that charges 'the full support and maintenance' of the plaintiff upon his deceased father, within the meaning of sub. 3 (c), sec. 2394-10, of the Statutes."

The plaintiff's mother testified that the sum of $10 paid by the plaintiff's father monthly was not enough to pay for plaintiff's board and room alone, to say nothing of other expenses incident to his support and maintenance. Under such a state of the record the Commission could not have found that the court granting the decree charged the deceased father with the "full support and maintenance" of the plaintiff.

The court, by awarding "the care, custody, maintenance, and education" of the plaintiff to his mother, clearly imposed upon her the duty of supplying all support and maintenance in addition to that supplied by the contribution of $10 monthly by the father.

We need only add that in this age of high cost of living we can take judicial notice of the fact that $10 per month will not support and educate a nine-year-old normal boy. The Commission and the trial court correctly found the facts and applied the law.

Claim is made that the award is wrong upon the Commission's theory of the law. This arises through an attack upon the findings of the Commission as to the amount contributed by the father to the son the year preceding his