Allen v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 January 1936
• Docket Number: 34448
• Citation: 90 S.W.2d 1050,338 Mo. 395
• Parties: James G. Allen, Marion J. Allen, Vernice Allen, Elmer L. Allen and John L. Allen v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

90 S.W.2d 1050

338 Mo. 395

James G. Allen, Marion J. Allen, Vernice Allen, Elmer L. Allen and John L. Allen v. St. Louis-San Francisco Railway Company, Appellant

No. 34448

Supreme Court of Missouri

January 11, 1936

Rehearing Denied January 11, 1936.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Joseph W. Jamison and Mann, Mann & Miller for appellant.

(1) Where an employee is survived by a widow and minor children the statute does not vest the right to claim compensation jointly in them but vests that right solely in the widow. Where a widow survives, there is no statutory provision authorizing the filing of a claim for compensation by, or an award of compensation to, the minor children. R. S. 1929, sec. 3319; Holmes v. Mack I. C. Co., 28 S.W.2d 446; Robinson v. Union E. L. & P. Co., 43 S.W.2d 912. (2) Where a deceased employee is survived by a widow, the rights of a minor child under the statute are limited to such portion of an award, if one is made to the widow, as many remain unpaid in the event, or upon the death or remarriage, of the widow. If the widow lives and remains the widow of the deceased employee until after payment in full of an award to her, no right under the statute ever accrues to the minor child. The right of a minor child under the statute, therefore, is a conditional one of succession. It has been referred to "as a right to a contingent remainder." Bomar v. Kreis & Sons, 72 S.W.2d 206; Caldwell v. Kreis & Sons, 72 S.W.2d 201, and cases under Point (1). (3) The right to recover compensation, as in the case of damages, on account of death was unknown to the common law and only those persons designated by the statute granting the right may invoke its provisions. The right is entirely statutory and the legislative intent being clearly expressed courts have no right, by construction, to substitute their ideas of legislative intent for that unmistakably expressed in legislative words. Betz v. Railroad Co., 284 S.W. 455; Freie v. Ry. Co., 283 Mo. 457, 222 S.W. 824; Reading Co. v. Koons, 271 U.S. 58, 70 L.Ed. 835; Mellon v. Goodyear, 277 U.S. 334, 72 L.Ed. 906; Rogers v. Railroad Co., 19 F.2d 922. (4) The six months' period provided by statute, Section 3337, following the death of the employee within which claims for compensation may be filed is not a mere Statute of Limitation, but is a condition and limitation upon the power to exercise the rights granted by the statute. Higgins v. Heine Boiler Co., 228 Mo. 493, 41 S.W.2d 571. Perry v. Kreis & Sons, 49 S.W.2d 221; McConnell v. Hennessy, 44 S.W.2d 195; Heele v. Eyermann C. Co., 44 S.W.2d 236; Schrabauer v. Schneider E. P. Co., 25 S.W.2d 532. (5) Where there are successive owners of a cause of action or right to sue, and the first owner is under no legal disability, so that the Statute of Limitations begins to run as against him, it continues without interruption not only against him, but against the right of such successive owners, and the disability by reason of minority, or otherwise, of those who are successors to that right will not interrupt it. 37 C. J., sec. 435, p. 1028; Pim v. St. Louis, 122 Mo. 665; Burdett v. May, 100 Mo. 19; Cunningham v. Snow, 82 Mo. 592; Meyer v. Christopher, 176 Mo. 596; Mathis v. Melton, 293 Mo. 134, 238 S.W. 808; Turnmeyer v. Claybrook, 204 S.W. 179; Wilkinson v. St. Louis S.D. Co., 102 Mo. 141; Robinson v. Allison, 192 Mo. 377; Patton Hotel Co. v. Milner, 238 S.W. 78; Ashland I. & M. Co. v. Fowler, 271 S.W. 591.

Ben G. Clark for respondents.

(1) Under the Missouri Workmen's Compensation Act the rights of all dependents become fixed at the time of the death of the employee and all dependents have the right to claim compensation, as it is only the order of payment that is prescribed by the statute. Sec. 3319, R. S. 1929; Robinson v. Union E. L. & P. Co., 43 S.W.2d 912; Holmes v. Mack International T. Co., 28 S.W.2d 446; Caldwell v. Kreis & Sons, 50 S.W.2d 728. (2) The status of minor children as total dependents is fixed at the time of the death of their father and the right to claim compensation accrues to them immediately upon his death, although their right to receive compensation is subject to any payment that might be made to the widow, if any. When the widow becomes disqualified for any reason, the entire death benefit, or the unpaid balance, as the case might be, becomes the property of the minor children, not by inheritance from the widow, but by removal of the restriction that previously had existed. The minor children do not succeed to the rights of the widow, but have a right complete in itself and capable of being enforced by them alone. Sec. 3319, R. S. 1929; Robinson v. Union E. L. & P. Co., 43 S.W.2d 912; Catlin v. Pickett & Co., 105 A. 503, 262 Pa. 351. (3) The six months Statute of Limitations does not begin to run against the minor children of a deceased employee until their disability is removed and their rights cannot be affected or destroyed by the silence of the widow or by her neglect to claim compensation for herself. Sec. 3337, R. S. 1929; Kennedy v. Keller, 37 S.W.2d 452, 225 Mo.App. 561; Matlock v. Leschen & Sons Rope Co., 43 S.W.2d 871; Daniels v. General Box Co., 66 S.W.2d 944. (4) The Workmen's Compensation Act is not cumulative to or supplemental of the common law, but is wholly substitutional, consequently the rules of law pertaining to real property, descents, negotiable instruments and the like, have no application to a proceeding for compensation. DeMay v. Liberty Foundry Co., 37 S.W.2d 640, 327 Mo. 495; Kemper v. Gluck, 39 S.W.2d 330, 327 Mo. 733. (a) The Compensation Act must be liberally construed to effectuate its purpose and should not be unnecessarily restricted by a technical construction of words. Elsas v. Montgomery Elevator Co., 50 S.W.2d 130. (b) The Compensation Act should be liberally construed as to the persons to be benefited and any doubt as to the right of compensation should be resolved in favor of the dependents. Pruitt v. Harker, 43 S.W.2d 769, 328 Mo. 1200.

Watson, Ess, Groner, Barnett & Whittaker, amicus curiae.

Jones, Hocker, Gladney & Jones and W. F. Drescher, Jr., for Wrought Iron Range Company and The Travelers Insurance Company, amici curiae.

(1) The Missouri Workmen's Compensation Commission was without jurisdiction to entertain the claim of the widow for the death benefit because said claim was not filed within six months of the date of the death of the deceased employee. Sec. 3337, R. S. 1929; Higgins v. Heine Boiler Co., 41 S.W.2d 565; Caldwell v. Kreis & Sons, 50 S.W.2d 728; Murphy v. Burlington Overall Co., 34 S.W.2d 1035; Wheeler v. Mo. Pac., 42 S.W.2d 579. (2) The widow of the deceased employee was entitled to the death benefit to the exclusion of the minor son, and the widow's claim for compensation having been denied because it had not been filed within six months after the death of the employee, the commission was without jurisdiction to entertain any claim on behalf of the minor son. Holmes v. Mack International Truck Co., 28 S.W.2d 446; Robinson v. Union E. L. & P. Co., 43 S.W.2d 912; Caldwell v. Kreis & Sons, 50 S.W.2d 728; Secs. 3319, 3342, R. S. 1929.

OPINION

Collet, J.

This case comes to us from the Kansas City Court of Appeals. That court properly decided the case (Allen v. St. L.-San Francisco Ry. Co., 81 S.W.2d 447) but on motion for rehearing one of the judges concluded the opinion was in conflict with decisions of the St. Louis Court of Appeals in the cases of Robinson v. Union Electric Light & Power Company (Mo. App.), 43 S.W.2d 912; Caldwell v. J. A. Kries & Sons (Mo. App.), 72 S.W.2d 201, and Bomar v. J. A. Kries & Sons (Mo. App.), 72 S.W.2d 205. At his request and pursuant to the direction of Section 6, Article VI of the Amendment of 1884 to the Constitution of Missouri the case was certified and transferred to this court for determination. By that constitutional provision it is our duty to rehear and determine the cause in the same manner as if it came here by ordinary appellate process. This we have done, and, finding our views in complete accord with those expressed by the Court of Appeals, we adopt the opinion of that court which is as follows:

"This is an appeal by the defendant from a judgment of the Circuit Court of Jackson County affirming an award of the death benefit by way of compensation to plaintiffs separately as the minor children of Elmer A. Allen, deceased, aggregating the sum of $ 5496.

"There is no dispute as to the facts. The case was tried before the commission on an agreed statement of facts.

"Elmer A. Allen, the deceased employee, concededly came to his death on December 14, 1928, within a few hours after and as result of an accident arising out of and in the course of his employment with defendant in its railroad yards at Kansas City, Missouri. The plaintiffs herein are his children.

"He was survived by his widow, Elsie A. Allen, and his six minor children, all of whom, with the exception of Albert E. Allen who reached his majority January 12, 1932, were minors at the time the claim for compensation was filed on July 21, 1933. The age and date of birth of each of the plaintiffs are stated in the agreed statement of facts. Albert E. Allen was not permitted to participate in the award for the reason that, since arriving at the age of twenty-one years, his right so to do had been barred by the Statute of Limitations.

"Shortly after the death of the employee, the widow, as administratrix of his estate, filed a suit under the Federal Employers' Liability Act of Congress (45 U.S.C. A., sec. 51 et seq.) to recover damages on account of his death. In this suit, she recovered a judgment of $ 25,000, which judgment was subsequently reversed by the Supreme Court of Missouri, that court hol...