Battles v. Massman Const. Co.

Decision Date10 April 1979
Docket NumberNo. 60958,60958
Citation580 S.W.2d 280
PartiesJames L. BATTLES, Deceased, Marla J. Battles Neece, widow, and Rebecca Jean Battles, minor dependent, Respondents, v. MASSMAN CONSTRUCTION COMPANY and the Travelers Insurance Company, Appellants.
CourtMissouri Supreme Court

Gary E. Lowe, Field, Gentry, Benjamin & Robertson, Kansas City, for appellants.

Richard D. Rhyne, Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for respondents.


This case basically raises the identical issue posed in Yardley v. Gaylord Montgomery and United States Fidelity and Guaranty Company, No. 60961 and Asher v. Killion Construction Co., No. 60844, decided this date, Mo., 580 S.W.2d 263. That issue is: When an employee covered by workmen's compensation dies in the scope of his employment and the widow thereafter remarries and receives a two-year statutory lump sum award, is the dependent child entitled to the widow's weekly benefit immediately upon the date of the widow's remarriage or is the child's increased benefit to be deferred until after the expiration of two years? As in Yardley and Asher we hold in this case that under the provisions of § 287.240, subsection 4(a) that upon the remarriage of the widow of a deceased employee, the periodic benefits to which the widow would have been entitled had she not remarried is, in this case, to be paid to the minor child immediately upon the remarriage of the widow and such payments are not to be deferred until the termination of two years after the remarriage. We thus affirm the order of the circuit court in this regard.

The facts are not in dispute. On August 16, 1974, James L. Battles was employed by Massman Construction Company and was subject to the workmen's compensation law. On that date he sustained an accident wherein he was electrocuted which resulted in his death. Marla J. Battles, his wife, and an infant daughter, Rebecca Jean Battles were his survivors. The compensation referee, after a hearing, awarded the widow the sum of $65.00 per week and the child $30.00 per week for death benefits. The award was entered December 31, 1974. The referee held that the compensation benefits due the widow "shall be paid to her until her death or remarriage at the compensation rate of $65.00 per week. 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 payments to the widow shall cease, and said periodic payments to which said widow would have been entitled had she not died or remarried shall be paid to the dependent child, Rebecca Jean Battles."

Marla J. Battles then married Victor L. Neece. 1 Following remarriage, the Labor and Industrial Relations Commission on January 13, 1977, entered its order modifying the award. The Commission, with one dissenting opinion, found that Marla was married to Mr. Neece on June 28, 1976 and ordered:

"(1) That a lump sum payment equal in amount to the benefits due her for a period of two years shall be paid to the widow. She is to receive in lump sum $6,760.00, which is the amount due her per week ($65.00) times two years (104 weeks). Thereupon the death benefits heretofore paid to said widow, . . . cease and abate as of June 29, 1976 . . . .

"(2) The minor child, Rebecca Jean Battles, is continued the weekly benefit of $30.00 from June 29, 1976 for 104 weeks thereafter at which time her benefit amount will be increased by $65.00 per week."

An appeal from this order was taken to the circuit court of Jackson County. On February 22, 1977, the circuit court made findings of fact, conclusions of law and entered its order reversing the Labor and Industrial Relations Commission. The court found the above facts but in addition found that on January 19, 1977, the insurer notified the dependents that its files indicated that it had paid Rebecca the sum of $95.00 per week for six months since the date of remarriage. But as the modifying award indicates "we should have only paid $30.00 per week for that period of (sic) $720.00. This amount(s) to an overpayment of $65.00 per week for 24 weeks or $1,560.00 . . . ." The insurer sought to retrieve the overpayment by ceasing payments for 52 weeks ($1,560 divided by $30). "After that time we will begin paying $30.00 per week until June 28, 1978. After that date we will again issue weekly payments in the amount of $95.00 per week ($380 every four weeks)."

The circuit court in reversing the Industrial Commission held that the law prior to 1974 provided that when a widow remarried, the benefits ceased. "But if there was a minor child, the benefits continued over to the minor child without interruption. The 1974 Amendment, (§ 287.240(4)(a)) which granted an additional lump sum payment to the widow, was not intended to reduce the periodic benefits which have historically been immediately transferred to any minor children upon the remarriage of the mother and in fact did not reduce those periodic benefits."

"The legislature's use of the word 'thereupon' to signify the time when the minor child's benefits shall be increased as the result of the mother's remarriage indicates that the legislature intended that the remarriage of the widow was the sole necessary and final act which would Immediately transfer the widow's periodic benefits to her minor children."

The circuit court, on April, 1978, reversed the January 13, 1977 order of...

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4 cases
  • Montgomery County v. Lake
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1985
    ...Corp., 333 Mich. 559, 53 N.W.2d 377 (1952); Christianson v. Axel H. Ohman Constr. Co., 346 N.W.2d 654 (Minn.1984); Battles v. Massman Constr. Co., 580 S.W.2d 280 (Mo.1979); Belton v. Carlson Transp., 714 P.2d 148 (Mont.1986); Travis v. Liberty Mutual Ins. Co., 79 Or.App. 126, 717 P.2d 1269 ......
  • Aswell v. Rockwood Ins. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 20, 1988
    ...are Missouri, Kansas, New Jersey, Pennsylvania and Ohio. Yardley v. Montgomery, 580 S.W.2d 263 (Mo.1979); Battles v. Massman Construction Company, 580 S.W.2d 280 (Mo.1979); Blumenfeld v. Rust Craft Greeting Cards, Inc., 51 N.J. 1, 236 A.2d 883 (1967); Lackey v. D & M Trucking Company, 9 Kan......
  • Ash v. Restoration
    • United States
    • Missouri Court of Appeals
    • August 27, 2013
    ...upon the amount of the weekly death benefit allocated to the surviving spouse. Yardley, 580 S.W.2d at 266;Battles v. Massman Constr. Co., 580 S.W.2d 280, 281 (Mo. banc 1979); Ikerman v. Koch, 580 S.W.2d 273, 276 (Mo. banc 1979); see also Mouser v. St. Joe Minerals Corp., 709 S.W.2d 950, 951......
  • Ikerman v. Koch, 60822
    • United States
    • Missouri Supreme Court
    • April 10, 1979
    ...This case is unlike Yardley v. Gaylord Montgomery and U.S.F. & G., and Asher v. Killion Construction Co., decided this date, Mo. 580 S.W.2d 280. In this case the widow of a deceased employee effected a third party recovery and then remarried within the credit period. In Yardley and Asher, n......

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