Yardley v. Montgomery

580 S.W.2d 263, 1979 Mo. LEXIS 271
CourtSupreme Court of Missouri
DecidedApril 10, 1979
DocketNos. 60961, 60844
StatusPublished
Cited by13 cases

This text of 580 S.W.2d 263 (Yardley v. Montgomery) 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
Yardley v. Montgomery, 580 S.W.2d 263, 1979 Mo. LEXIS 271 (Mo. 1979).

Opinion

SIMEONE, Judge.

I.

These are consolidated appeals involving the same legal issue and a construction of certain provisions of the workmen’s compensation law of Missouri. The issue in both cases is one of first impression: When an employee covered by workmen’s compensation is killed in the course of his employment and the widow and children are each awarded certain weekly death benefits and the widow thereafter remarries and receives, under the law, a two-year lump sum remarriage award, are the dependent children entitled to the widow’s weekly benefits immediately upon the date of the remarriage or are the increased benefits to be deferred until after the expiration of two years?

For reasons hereinafter stated, we hold that under the provisions of § 287.240, subsection 4(a), RSMo 1975 Supp. that upon the remarriage of the widow of a deceased employee, the periodic benefits awarded to the widow and to which the widow would have been entitled had she not remarried is to be [265]*265divided among the minor children immediately upon the remarriage of the widow and that such payments are not to be deferred until the termination of two years after the remarriage. Thus we reverse the judgments of the respective circuit courts.

The various statutes involved in this proceeding insofar as pertinent are as follows:

1. Section 287.240, subsection 2, RSMo 1975 Supp.:

“The employer shall also pay to the total dependents of the employee a death benefit on the basis of sixty-six and two-thirds percent of the employee’s average weekly earnings during the year immediately preceding the injury as provided in section 287.250. Compensation shall be payable in installments in the same manner that compensation is required to be paid under this chapter, but in no case be less than at the rate of sixteen dollars per week nor more than ninety-five dollars per week or as provided in section 287.-160. . .

2. Section 287.240, subsection 4(a), RSMo 1975 Supp.:

“. . . [Ojn the death or remarriage of a widow or widower, the death benefit shall cease unless there be other total dependents entitled to any death benefit under this chapter. In the event of remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow or widower. Thereupon the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit under this chapter in which event the periodic benefits to which said widow or widower would have been entitled had he or she not died or remarried, shall be divided among such other total dependents and paid to them during their period of entitlement under this chapter; ”

3. Section 287.240, subsection 7, RSMo 1975 Supp.:

“All death benefits in this chapter shall be paid in installments in the same manner as provided for disability compensation; . . . ”

4. Section 287.240, subsection 1, RSMo 1975 Supp.:

“[If the injury causes death, the compensation therefor, shall be as provided in this section:] (1) In all cases the employer shall pay . . . the reasonable expense of the burial of the deceased employee not exceeding eight hundred dollars.”

5. Section 287.160, subsection 2, RSMo 1975 Supp.:

“. . . Compensation shall be payable on the basis of sixty-six and two-thirds percent of the average earnings of the employee . . . but in no case shall the compensation exceed ninety-five dollars per week.”

Other pertinent provisions of the statutes bearing on the resolution of this proceeding will be cited in the course of this opinion.

II.

Yardley v. Gaylord Montgomery and U.S. F.&G., No. 60961, involves an appeal from the circuit court of Howard County which affirmed a modified order of the Labor and Industrial Relations Commission. An appeal was taken by the appellants, Pamela Yardley and Andrew Yardley, children of the deceased employee, to the Missouri Court of Appeals, Western District which reversed the judgment of the circuit court with directions. Upon motion, the Western District transferred the cause to this court because the appeal involves a “novel issue of general interest and importance in that it is a case of first impression in Missouri. . . .."

The facts are not complex or contradicted, but the legal issues raised are difficult and have been the subject of debate and uncertainty in the field of workmen’s compensation.

On March 31, 1975, Mr. Lonnie Yardley, age 26, was an employee of Montgomery Construction Co. On that date Mr. Yardley was starting to reroof a house and while in the course of his employment fell from the roof onto concrete. He suffered head injuries and died in surgery. He was survived [266]*266by his widow, Susan C. Yardley and two children, Pamela Kaye, age 6, and Andrew Earl, age 1.

On March 5,1976, an award of compensation was made by the referee. The referee awarded death benefits. Susan, the widow, was awarded $73.33 per week, and each of the two children were awarded $10.00 per week. Burial expenses in the amount of $800.00 were also awarded. The referee, in the award stated that the death benefit to the widow would continue until her death or remarriage. The award also stated:

“. . .In the event of her remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow. Thereupon the periodic death benefits payable to the widow, Susan Yardley, shall cease and the remainder of the compensation payable under this award shall become payable to Pamela Yardley . and Andrew Yardley . . . .”

On May 14, 1976, Susan Yardley married Charles Joseph Flaspohler.

In the normal course, and on July 13, 1976, the Labor and Industrial Relations Commission entered its order modifying the referee’s award because of the remarriage of the widow. The modified order found that Mrs. Yardley had remarried and ordered that Mrs. Yardley be paid a lump sum equal in amount to the benefits due her for a period of two years. The order recited that she was to receive in a lump sum $7,626.32 (the amount due her per week, $73.33 times 2 years or 104 weeks), and that as of May 15, 1976, her death benefits would cease.

However, the award stated that:

“(2) The death benefits in the weekly sum of $73.33 heretofore paid to said widow, ... be immediately hereafter paid each week to Pamela and Andrew Yardley, ... so that Pamela Yardley will receive with the sum of $10.00 awarded to her by the award of March 5, 1976, the additional sum of $36.66, making a total weekly payment of $46.66, and Andrew Yardley will receive with the sum of $10.00 awarded to him by the award of March 5, 1976, the additional sum of $36.67, making a total weekly payment of $46.67.”

These benefits were made payable to the mother as their natural guardian.

But upon subsequent motion by the employer and insurer, contending that the modified award grants to the dependents compensation in an amount in excess of $95.00 in violation of § 287.240(2), RSMo Supp.1975, the Commission set aside its order of July 13, 1976 and requested arguments.

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Bluebook (online)
580 S.W.2d 263, 1979 Mo. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yardley-v-montgomery-mo-1979.