Wengler v. Druggists Mut. Ins. Co.

• Decision Date: 27 June 1979
• Docket Number: No. 60442,60442
• Citation: 583 S.W.2d 162
• Parties: 20 Empl. Prac. Dec. P 30,159 Paul J. WENGLER, Respondent, v. DRUGGISTS MUTUAL INSURANCE COMPANY, and Dicus Prescription Drugs, Inc., Appellants.
• Court: Missouri Supreme Court

Page 162

583 S.W.2d 162

20 Empl. Prac. Dec. P 30,159

Paul J. WENGLER, Respondent, v. DRUGGISTS MUTUAL INSURANCE COMPANY, and Dicus Prescription

Drugs, Inc., Appellants.

No. 60442.

Supreme Court of Missouri, En Banc.

June 27, 1979.

Rehearing Denied July 17, 1979.

Ralph C. Kleinschmidt, Gerre S. Langton, Evans & Dixon, St. Louis, for appellants.

John W. Reid, III, Schnapp, Graham & Reid, Fredericktown, for respondent.

BARDGETT, Judge.

The issue on this appeal is whether the provision contained in section 287.240, RSMo Supp.1976, which affords a conclusive presumption of dependency to a widow for obtaining workmen's compensation benefits for the death of her spouse but requires a widower to prove actual dependency to receive reciprocal benefits, offends the equal protection clause of art. 1, sec. 2, Mo.Const., and amendment 14, U.S.Const.

Plaintiff-respondent Paul J. Wengler's wife Ruth was killed in an accident while working for defendant-appellant Dicus Prescription Drugs, Inc., and plaintiff made a claim for workmen's compensation death benefits under sec. 287.240(2). It is stipulated that plaintiff was not actually dependent for support, in whole or in part, upon the wages of his wife at the time of the injury, nor was he mentally or physically impaired from wage earning. In order for a widower to obtain periodic death benefits under 287.240(4) and (4)(a) upon the work-related death of his wife, the widower must either be (1) mentally or physically incapacitated from wage earning, or (2) must prove actual dependency for support, in whole or in part, upon his wife's wages. However, if the husband dies in a work-related accident, the surviving widow is conclusively presumed to be totally dependent upon her husband's wages for support. She does not need to prove actual dependency. Sec. 287.240(4) and (4)(a). ¹ A child under age 18 is also conclusively presumed to be totally dependent upon his parent under 287.240(4)(b).

The workmen's compensation referee denied plaintiff benefits because no dependency on his wife's wages was shown. On review, the Labor and Industrial Relations Commission adopted the referee's award and denied compensation. The circuit court reversed and held that because sec. 287.240 affords a conclusive presumption of total dependency to a widow upon her husband's work-related death, it constitutes a denial of equal protection under art. 1, sec. 2, Mo.Const., and the fourteenth amendment, U.S.Const., to require a widower to prove dependency and to deny that same presumption to a husband whose wife dies in a work-related accident.

The employer and insurer appealed. This court has jurisdiction. Art. 5, sec. 3, Mo.Const. Our decision upholding the constitutionality of sec. 287.240(4) and (4)(a) renders other issues on the cross-appeal moot.

The workmen's compensation act is considered substitutional for common-law tort remedies. Sheets v. Hill Bros. Distributors, Inc., 379 S.W.2d 514 (Mo.1964). Its primary purpose is to ameliorate, in the interest of working people and the public welfare, losses sustained from accidental injuries received by the working person in the course of employment, Reed v. Kansas City Wholesale Grocery Co., 236 Mo.App. 402, 156 S.W.2d 747 (1941), and is to be liberally construed with a view to the public welfare. Sec. 287.800, RSMo 1969.

The act was first adopted by the legislature in 1925 (Laws of Mo.1925, p. 375), and upon being referred to a vote of the people it was approved at the November 1926 election (Laws of Mo.1927, p. 490).

Section 21 of the original act provided for compensation upon the death of an employee. The definition of "dependent" in sec. 21(d) has continued to the present unchanged and is now sec. 287.240. The conclusive presumption of dependency of "a wife upon a husband legally liable for her support" was part of the original act, as was the provision which results in a nondisabled husband being required to show actual dependency, in whole or in part, to receive compensation upon the work-related death of his wife.

Workmen's compensation is not, in the main, financed by taxes and the payment of compensation is not a governmental obligation but rather the obligation of the employer.

The plaintiff contends that because of the differential in treatment of husbands and wives in claims under sec. 287.240 is gender based, it violates the equal protection clause of art. 1, sec. 2, Mo.Const., and the fourteenth amendment, U.S.Const.

To withstand scrutiny under the equal protection clause, classification by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the court upheld the constitutionality of a Florida statute which, since 1885, granted all widows an annual $500 tax exemption as against an equal protection attack brought by a widower. The court said there could "be no dispute that the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man. Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs." Earning statistics, cited in Kahn, of men as compared with women from 1955 to 1972 showed in 1972 that a woman working full time had a median income which was only 57.9% Of the median for men six points lower than in 1955. The court observed at 354, 94 S.Ct. at 1737, "While the widower can usually continue in the occupation which preceded his spouse's death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer." It was also noted at 355, footnote 7, 94 S.Ct. at 1737: "It is still the case that in the majority of families where both spouses are present, the woman is not employed. A. Ferriss, Indicators of Trends in the Status of American Women 95 (1971)."

Kahn v. Shevin, supra, distinguished Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), on the basis that the denial to service women of procedural and substantive benefits granted service men was "Solely " for administrative convenience and served no important governmental objective; whereas, in Kahn, widows were found to be at an economic disadvantage to widowers. The court thereupon held the Florida statute rested upon a ground of difference that had a fair and substantial relation to be the object of the legislation.

Likewise, in Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), the court upheld a gender-based difference which benefited women by requiring fewer number of elapsed years to qualify for certain old-age insurance benefits for women than for men. This, the court held, was a justifiable difference to correct a long history of discrimination against women by a male-dominated culture and an inhospitable job market.

However, in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), the court held a gender-based distinction created by a provision of the social security act violated the due process clause of the Fifth Amendment. The provision in question allowed a widow to receive benefits based upon the earnings of her deceased husband without showing actual dependency, but required a widower to prove he was receiving at least one-half of his support from his deceased wife to qualify for benefits upon his working wife's death. The court, following Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), said 430 U.S. at 206-207, 97 S.Ct. at 1027:

". . . Wiesenfeld thus inescapably compels the conclusion reached by the District Court that the gender-based differentiation created by § 402(f)(1)(D) that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men is forbidden by the Constitution, at least when supported by no more substantial justification than 'archaic and overbroad' generalizations, Schlesinger v. Ballard, supra, 419 U.S. 498, at 508, 95 S.Ct. 572, at 577, 42 L.Ed.2d 610, or 'old notions,' Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975), such as 'assumptions as to dependency,' Weinberger v. Wiesenfeld, supra, 420 U.S. at 645, 95 S.Ct. at 1231, that are more consistent with 'the role-typing society has long imposed,' Stanton v. Stanton, supra, 421 U.S. at 15, 95 S.Ct. at 1378, than with contemporary reality."

The court also found the provision in violation of equal protection for essentially the same reason, saying 430 U.S. at 208, 97 S.Ct. at 1027:

"From its inception, the social security system has been a program of social insurance. Covered employees and their employers pay taxes into a fund administered distinct from the general federal revenues to purchase protection against the economic consequences of old age, disability and death. But under § 402(f)(1)(D) female insureds received less protection for their spouses solely because of their sex. Mrs. Goldfarb worked and paid social security taxes for 25 years at the same rate as her male colleagues, but because of § 402(f)(1)(D) the insurance protection received by the males was broader than hers."

But in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the court upheld the denial of social security benefits to a woman applying for mother and daughter benefits on the basis of a provision in the act defining "widow" and "child" excluded surviving wives and stepchildren who had their respective relationship with the deceased wage earner for less than nine months prior to his death. Quoting from the earlier case of Dandridge v....