Maryland Casualty Co. v. General Electric Co.

418 S.W.2d 115, 1967 Mo. LEXIS 800
CourtSupreme Court of Missouri
DecidedSeptember 11, 1967
Docket52606
StatusPublished
Cited by33 cases

This text of 418 S.W.2d 115 (Maryland Casualty Co. v. General Electric Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maryland Casualty Co. v. General Electric Co., 418 S.W.2d 115, 1967 Mo. LEXIS 800 (Mo. 1967).

Opinions

DONNELLY, Judge.

This is an action for apportionment under § 287.150 RSMo 1959, V.A.M.S. Respondent Lucille Storm prevailed in the trial court. Appellant Maryland Casualty Company appealed to the Kansas City Court of Appeals, which Court adopted an opinion affirming the judgment of the trial court. Upon appellant’s application, we ordered the case transferred to this Court and it will be determined here “the same as on original appeal.” Rule 84.05(h), V. A.M.R., Mo. Const, Art. V, § 10 (1945), V.A.M.S.

On February 10, 1960, David A. Storm, an electrician, was killed by reason of contact with an electrical current while working on the campus of the University of Missouri at Columbia.

The Division of Workmen’s Compensation of the State of Missouri entered an award ordering Maryland Casualty Company to pay Lucille Storm, his widow, $15,-500. This award has now been fully paid.

On May 11, 1960, Maryland Casualty Company, insurer for Storm’s employer, filed suit against General Electric Company on the theory that a switch within a high voltage transformer substation was defectively manufactured and that a mal[116]*116function caused the death. On August 5, 1960, Lucille Storm joined as plaintiff. Trial was had in April , 1963, and a judgment was entered for plaintiffs for $25,-000. On January 7, 1964, the judgment of $25,000 was paid into court for distribution between appellant and respondent.

The parties agree to the following facts: “That Terence C. Porter was employed by the Maryland Casualty Company, a corporation, on February 13, 1960, to make an investigation of the cause of death of the decedent David A. Storm, and to determine the existence of a cause of action for wrongful death; that pursuant to this investigation, Maryland Casualty Company directed Terence C. Porter to file a wrongful death action against the General Electric Company and that this was done as hereinbefore related on May 11, 1960; that thereafter in August, 1960, after various conferences between the widow Lucille Storm and the firm of Koenig, Dietz and Siebels of St. Louis, Missouri, who were representing her, she agreed, at the request of Terence C. Porter, as attorney for Maryland Casualty Company, to enter her appearance as a co-party plaintiff in this action; that thereafter Terence C. Porter continued the investigation and preparation of the case including the conduct of all discovery proceedings and trial preparation, including the employment of various expert witnesses and the preparation of a motion picture to illustrate the defect in the equipment of the defendant, General Electric Company, which caused the death of the decedent; that the actual trial of the case was conducted by Terence C. Porter pursuant to the original employment by Maryland Casualty Company as aforementioned; that the widow Lucille Storm cooperated in the prosecution of the case to the extent that she conferred with the said Terence C. Porter on occasion, both personally and by and through her attorneys, with respect to the progress of the preparation of the case and the prospects of settlement, and in addition, attended the trial and testified to the state of health of the decedent and the extent of her dependency ; that at no time did Mrs. Storm or her attorneys assist in the investigation or preparation of the case for trial.”

The amount of attorney fees and costs incident to the $25,000 recovery is not in dispute. It is agreed that the amount subject to distribution between Lucille Storm and Maryland Casualty Company is $15,-801.67.

Section 287.150, RSMo 1959, V.A.M.S., as it now exists, reads in part as follows:

“1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be sub-rogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.

“3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorneys fee has been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree. Any part of the recovery found to be due to the [117]*117employer, the employee or his dependents shall he paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation.”

Before 1955, the statute contained only Subsection 1. Section 287.150, RSMo 1949, V.A.M.S. The law as to apportionment thereunder was as stated in Schumacher v. Leslie, 360 Mo. 1238, 1248, 232 S.W.2d 913, 919 (1950): “Under the Missouri Act and the decisions construing it there is no double recovery, an evil to be avoided, because whoever, the employer or the employee, recovers against a third person tort-feasor holds so much of such recovery as in truth and in fact belongs to the other as an express trustee — the employee to see that the employer’s right of subrogation is protected, and the employer to see that the employee receives any surplus after his indemnification. McKenzie v. Missouri Stables, Inc., 225 Mo.App. 64, 34 S.W.2d 136, 139 [7]; Reynolds v. Grain Belt Mills Co., 229 Mo.App. 380, 78 S.W.2d 124, 130[2]; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446[5].”

In 1955, the Legislature added the Subsection now numbered 3. Laws of 1955, pp. 597, 598. It is evident that if apportionment should be made under Subsection 1 of the statute, Maryland Casualty Company is entitled to $15,500. The trial court ordered apportionment under Subsection 3 of the statute and held Maryland Casualty Company is entitled to $7,690.67.

We must determine what the Legislature intended by its enactment of Subsection 3. The applicable principles of statutory construction are well settled. “Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written. However, when the meaning is doubtful it becomes the duty of the courts to construe it. It is elementary that the primary rule to be applied in the construction of a statute is to ascertain and give effect to the legislative intent.” Foremost Dairies, Inc. v. Thomason, Mo.Sup., 384 S.W.2d 651, 659 (1964).

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418 S.W.2d 115, 1967 Mo. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryland-casualty-co-v-general-electric-co-mo-1967.