Gennari v. Norwood Hills Corp.

• Decision Date: 09 March 1959
• Docket Number: No. 46499,No. 2,46499,2
• Citation: 322 S.W.2d 718
• Parties: Frances GENNARI, Shirley L. Gennari, Roger L. Gennari and Nelson E. Gennari, Appellants, v. NORWOOD HILLS CORPORATION, d/b/a Norwood Hills Country Club, Employer, and Aetna Casualty and Surety Company, Insurer, Respondents
• Court: Missouri Supreme Court

Page 718

322 S.W.2d 718

Frances GENNARI, Shirley L. Gennari, Roger L. Gennari and Nelson E. Gennari, Appellants, v. NORWOOD HILLS CORPORATION, d/b/a Norwood Hills Country Club Employer, and Aetna Casualty and Surety Company Insurer, Respondents.

No. 46499.

Supreme Court of Missouri, Division No. 2.

March 9, 1959.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 13, 1959.

William G. Phillips, St. Louis, for appellants.

Luke, Cunliff & Wilson, St. Louis, for respondents.

STORCKMAN, Presiding Judge.

This claim for maximum death benefits under the Missouri Workmen's Compensation Act was filed by the widow and three dependent children of the deceased employee. The referee who heard the claim and the Industrial Commission on review found against the claimants-dependents and a final award was made denying compensation. On appeal the Circuit Court of St Louis County sustained the final award of the Industrial Commission and the claimants appealed to this court.

The employee Joseph Gennari was regularly employed as a pastry cook by the Sheraton Hotel in St. Louis. The Norwood Hills Corporation, doing business as Norwood Hills Country Club, the alleged employer, operated the Norwood Hills Country Club in St. Louis County. The manager of the country club contacted Mr. Gennari and engaged him for a minimum fee of $25 to carve ornamental figures out of ice for table decorations at a dinner being held at the country club in connection with the Missouri State Women's Golf Tournament.

On July 20, 1954, Mr. Gennari went to the country club to do the work. According to the parties' stipulation, the outside temperature at 4:30 p. m. on that day was 102 degrees. Mr Gennari spent a portion of the afternoon in a refrigerator room at the club house carving the decorative ice figures with special tools and equipment which he furnished. At about 5 p. m. Mr. Gennari came out of the room, walked about thirteen steps, staggered, and started to fall, but was caught and assisted to a chair by an employee of the club who asked him if he was ill. Mr. Gennari responded, 'Yes'; but was unable to say anything more. He was taken to the St. Louis County Hospital where he died about 3 o'clock the next morning.

Norwood Hills Country Club denied that it was a statutory employer of Mr. Gennari within the purview of Sec. 287.040, but the Industrial Commision found that it was and that Mr. Gennari 'was performing services for his said employer on their premises at said time.' The Industrial Commission further found that a cerebral hemorrhage caused the employee's death, but that it was not the result of an accident arising out of or in the course of his employment; and that his death was not in any way connected with the extreme changes in temperature encountered when he left the refrigerated room in which he had been working.

Maximum death benefits under the act were claimed. After Mr. Gennari's death, the Norwood Hills Country Club sent his widow a check for $40 in payment of his services. In the claim for compensation the employee's average weekly wages were stated to be 'in excess of $52.50,' which would have supported an award of a single death benefit of at least $10,900 including funeral expenses. The employment records at the Sheraton Hotel tended to prove that Mr. Gennari's earnings during the year immediately preceding his death, computed in accordance with Sec. 287.250, were in excess of $100 per week and the single total death benefit calculated as provided in Sec. 287.240 would be the maximum of $12,000 plus burial expenses of $400.

The claimants are Frances Gennari, widow, and three dependent children, Shirley L. Gennari born October 12, 1936, Roger L. Gennari born February 6, 1940, and Nelson E. Gennari born January 15, 1942. These children were all under 18 years of age when their father died on July 21, 1954, being approximately 17 years 8 months, 14 years 5 months, and 12 years 6 months, respectively. There were two other children over the age of 18 at the time of the death who were not claimed to be dependent.

The appellants in their jurisdictional statement assert that this court is vested with jurisdiction on appeal because the amount in dispute is $12,400. The respondents do not contend otherwise. Nevertheless, we must determine the question because the monetary jurisdiction of the supreme court on appeal is not general, but is limited to cases where the amount in dispute, exclusive of costs, exceeds $7,500 Art. V, Sec. 3, Const. of Mo.1945, V.A.M.S.; Crow v. Missouri Implement Tractor Company, Mo., 292 S.W.2d 573, 574[1, 2].

The jurisdictional question in this type of case has been brought to the forefront by a decision of the court en banc rendered since this case was argued and submitted. This case, Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390, reaffirms this holding of Stuart v. Stuart, 320 Mo. 486, 8 S.W.2d 613, 614: 'We are on firmer ground in holding, as we do, that the appellate jurisdiction of this court, on the ground of the amount in dispute, attaches when, and only when, the record of the trial court affirmatively shows that there is involved in the controversy, independent of all contingencies, an amount exceeding $7,500, exclusive of costs.'

The widow of Mr. Snowbarger, the sole dependent, had been allowed a 'single total death benefit,' Sec. 287.240(2), in the amount of $8,535, payable in weekly installments; however, less than $7,500 had become due and payable at the time the appeal was taken. The court held the jurisdictional amount was not affirmatively shown, 'independent of all contingencies,' because the award might be terminated by the death or remarriage of the widow before a sum of $7,500 became due and payable. Section 287.240(4)(a) provides 'that on the death or remarriage of a widow, the death benefit shall cease unless there be other total dependents entitled to any unpaid remainder of such death benefit under this chapter.' In the Snowbarger case there were no total dependents other than the widow.

The present case is distinguishable from Snowbarger in that dependent children are parties claimant together with the dependent widow. Section 287.240 RSMo 1949, V.A.M.S. provides, inter alia, that a wife whose husband was legally liable for her support and a child or children under the age of 18 years 'shall be conclusively presumed to be totally dependent for support upon a deceased employee and any death benefit shall be payable to them, to the exclusion of other total dependents.' The section further provides: 'In case there is a wife * * * and a child or more than one child thus dependent, the death benefit shall be divided among them in such proportion as may be determined by the commission after considering their ages and other facts bearing on such dependency.' The original enactment did not provide for the initial division of the death benefit among the wife and children; the children's rights were secondary to those of the widow. See Sec. 21(d), Laws of Missouri 1925, p. 388; Laws of Missouri 1927, p. 503; and Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 265, 94 A.L.R. 751. Other dependents are provided for in Sec. 287.240, but we have mentioned only the categories involved in this case.

A death benefit awarded to a dependent child of the deceased employee continues until all of the weekly installments have been paid and is not terminated when such child attains the age of 18. Murray v. Marshall-Hughes Co., 327 Mo. 88, 34 S.W.2d 34, 35. This follows according to the Murray case from the fact that the statute, Sec. 287.240, provides that the status of dependency, and hence the right to the benefit, is to be determined as of the date of injury and the award once made may not be discontinued for any reason not expressly mentioned in that section of the act.

Also the death of a dependent child does not terminate the compensation award; in case of such death the dependent child's personal representative is entitled to the unpaid portion of the award. Pfefer v. Winer & Saroff Commission Co., 227 Mo.App. 280, 49 S.W.2d 293.

The death benefit awarded a dependent widow abates upon her death or remarriage only if there are no total dependents entitled to the unpaid remainder of such benefit. Sec. 287.240(4)(a). In this case there are dependent children to whom the award would go upon the widow's death or remarriage. Allen v. St. Louis-San Francisco R. Co., 338 Mo. 395, 90 S.W.2d 1050, 1055, 105 A.L.R. 1222; Culberson v. Daniel Hamm Drayage Company, Mo., 286 S.W.2d 813, 820.

The dependency of the children must be determined as of the time of the injury causing the parent's death. Sec. 287.240(4) and (4)(b); Reneau v. Bales Electric Co., Mo., 303 S.W.2d 75, 81; Pittman v. Scullin Steel Company, Mo., 289 S.W.2d 57, 63. Having been so established, the dependency cannot be re-examined and discontinued as of a later date by reason of the death or maturity of the beneficiary or other contingency, because there is no statutory authority for so doing. Murray v. Marshall-Hughes Co., supra; Pfefer v. Winer & Saroff Commission Co., supra.

Where injury causes the death of an employee, compensation rights are determined by Sec. 287.240 independently of any other part of the act except the sections referred to in Sec. 287.240. Wahlig v....