author:
PINCH, Senior Judge.
      DONNELLY, Judge,

text:
    STATE of Missouri, Respondent, v. Willie Mae JOHNSON, Appellant.
    No. 60695.
    Supreme Court of Missouri, en banc.
    April 10, 1979.
    Rehearing Denied May 17, 1979.

      Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   PINCH, Senior Judge.

This opinion, written on recent reassignment, involves a case wherein defendant was found guilty by a jury of receiving stolen property and was sentenced to imprisonment for four years. She appealed to the Missouri Court of Appeals, Eastern District, which reversed. We ordered the case transferred and we now decide it as though here on direct appeal. Mo.Const. Art. V, § 10. We affirm.

On June 9, 1975, detectives of the St. Louis Metropolitan Police Department received a telephone call from a confidential informant whom these officers had known for about a year and a half. During that time he had furnished information to the officers on five occasions. This information led to only one conviction but one of the officers testified that they had not ever received information from the informant which they later found to be incorrect.

The informant told the officers that two men and two women had been observed carrying into a vacant building at 4752 Ash-land some tape recorders which had been stolen in St. Louis County. He stated that the people were going to attempt to remove identification markings and serial numbers, and then move the recorders immediately. The building was described as a house with brown and yellow trim around the windows, located across the street from the park. The informant did not give the names of the four persons, nor did he state from whence the recorders had been stolen or how he knew they had been stolen.

Three detectives departed immediately for the address given by the informant. Due to the time element, they did not attempt to contact the St. Louis County Police Department for information as to a burglary in which tape recorders had been taken and they did not obtain information as to ownership of the building. When they arrived, one officer went to the front door and officers Gober and Dorn went to the rear of the house to block escape of any persons leaving the building when the other officer knocked at the front door. When they arrived at the back of the house they saw two men and two women seated on the floor of the kitchen wiping cassette tape recorders with rags and some kind of liquid. The window had no curtains or blinds and the people were readily seen by the officers standing in the yard back of the house. The officers could see no furniture and the house appeared to be vacant and in a bad state of repair.

When the officer at the front door knocked, announced himself as a police officer and asked to be admitted, there was immediate activity inside the house. One of the men jumped up and was heard to say, “It’s the cops.” He then ran out the back door onto the porch but he was pursued back into the house by officers Gober and Dorn. The officers placed the four people, one of whom was defendant, under arrest and seized seventeen cassette tape recorders and a closed circuit television set, all of which were marked Frost Field School, Berkeley School District.

Prior to trial defendant filed a motion to suppress as evidence the tape recorders and the television set. An evidentiary hearing was held, at which the above facts were developed. The evidence also indicated that the vacant house was owned by defendant’s mother who lived in Berkeley, Missouri. The motion to suppress was overruled and the case proceeded to trial.

The first issue for resolution is whether the trial court erred in overruling defendant’s motion to suppress evidence seized at the time of defendant’s arrest and in permitting some of that evidence to be introduced at the trial.

The police officers received information from a reliable informant. They had known him for a year and a half during which he had furnished information on five different occasions. In no instance had the information furnished proved thereafter to be incorrect. In one instance the information furnished by this informant led to a conviction. The information furnished in this intance was that two men and two women had been observed carrying cassette tape recorders into a vacant building at a specific address and the building was further described by its location with reference to a park and the color of trim around the windows. The officers were told that these people were going to try to remove serial numbers and identifying marks from these stolen tape recorders and then immediately move them elsewhere.

This information called for a prompt response by the officers if they were to apprehend the people with the stolen recorders. Consequently, the officers made no attempt to check with county police about a burglary involving tape recorders and they did not stop to check on ownership of the vacant house. Instead, they went promptly to 4752 Ashland, the address given by the informant. There they found the house described by the informant. One officer went to the front door to knock and identify himself and then ask for admittance. Before doing that, however, two of the officers went to the rear of the house to prevent any people inside from escaping through the back door. When they reached the back of the house, they readily saw through the windows that four people, two men and two women, were sitting on the floor holding tape recorders which they were rubbing and wiping with rags and some liquid.

This corroborated the information furnished by the informant in that it placed two men and two women in the unfurnished, vacant house holding tape recorders (the things informants said they had carried into the house). It also corroborated the information that these people would be attempting to remove serial numbers and identifying marks because the two officers could see these four people using rags and a liquid rubbing and wiping the tape recorders. Finally, when the officer at the front door knocked and identified himself as a police officer, there was much scurrying around in the house and one of the four attempted to flee by running out the back door.

The information given to the officers which was corroborated in many respects by what the officers saw before entering the house was sufficient to indicate to the officers that a felony had been committed or was being committed at that time. It justified the officers in arresting the four people, including defendant, and, incident to said arrests, in seizing the tape recorders and the television set which they had seen through the window and were in plain view in the kitchen, some of which were being held by defendant and her companions. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975).

Defendant argues that this corroboration cannot be utilized because it came only after the officers had entered the back yard and observed defendant and her companions through the window. However, even when a technical trespass occurs, the facts can be such that a subsequent arrest and seizure of property incident thereto are not made unlawful. State v. Vineyard, 497 S.W.2d 821, 824 (Mo.App.1973). See also United States v. Taylor, 428 F.2d 515, 520 (8th Cir. 1970); United States v. Young, 322 F.2d 443, 445 (4th Cir. 1963). In this case one of the officers was going to the front door and knock, and then advise that he was a police officer. Apprehending that the people might leave by the back door and escape, two of the officers went to the rear of the house to prevent such escape. When they did that and were standing in the back yard they saw that which was easily observable through the uncovered window, viz., defendant and her companions inside the house attempting to remove identification from the tape recorders. We conclude and hold that whatever technical trespass was involved did not make the subsequent arrest and seizure unlawful.

The second issue for resolution is defendant’s contention that the state failed to make a submissible case for the reason that the evidence showed only possession by defendant of the tape recorders and there was no evidence to show that defendant received the property knowing it to have been stolen.

This issue is resolved by the decision of this court in State v. McAnulty, 491 S.W.2d 259 (Mo.1973). In that case a Mrs. Podhorn placed her automobile on a parking lot when she went to work at 7:30 a. m. It was gone when she returned to the parking lot at 4:30 p. m. Shortly thereafter, at about 5:00 p. m., two officers parked their car near the gate to an automobile salvage yard operated by defendant McAnulty. This was about nine blocks from the lot where Mrs. Podhorn had parked her automobile. At this time the officers did not know about the theft of the Podhorn car, but as they approached the salvage yard gate they observed three men around an automobile, one of whom was using an acetylene torch to cut it up. When the men saw the officers approaching, two of them ran and escaped. The third man, McAnulty, did not run. He had a fire extinguisher in his hands and was using it to try to extinguish a fire in the automobile.

The automobile being cut up was ascertained subsequently to be the Podhorn car and McAnulty was arrested. He was charged by the State with stealing the automobile and also with receiving it, knowing it to have been stolen. The State elected to proceed on the second charge, offering the evidence outlined above. The defendant offered no evidence. The jury convicted defendant on the charge of receiving the stolen automobile.

On appeal this court affirmed the conviction of McAnulty. In so doing the court held that there was sufficient evidence (1) that McAnulty possessed the automobile, (2) that he had knowledge that it had been stolen and (3) that McAnulty had received rather than stolen the Podhorn automobile.

The case we now consider is remarkably similar to McAnulty. In that case the evidence to show possession and knowledge consisted of proof that defendant was standing by the vehicle on his salvage yard while another was cutting it up and that he was trying to extinguish a fire which was burning in the automobile. Here the evidence to show possession and to permit an inference of knowledge that the tape players were stolen was that defendant and three other persons were seated in a room with the stolen tape recorders and T.V. Defendant was holding one of the tape recorders and was endeavoring to remove therefrom the marks which identified them as having come from the Frost Field School in the Berkeley School District.

On the question of whether the evidence was sufficient to permit a finding that defendant received rather than stole the automobile, the court in McAnulty stated, 491 S.W.2d at 260-61:

“Receipt. State v. Magers [Mo., 452 S.W.2d 198], supra, does hold that possession of recently stolen property is no basis for an inference that the possessor received, rather than stole, the property. Here, however, there were additional circumstances. There was evidence from which involvement of others could have been found — the two men who fled. Such additional evidence would have permitted the inference that they were the thieves and appellant the recipient of the property. See People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 1044[3].”

In this ease, in addition to the evidence of defendant and others having the tape recorders in their possession and attempting to obliterate the identifying markings, there was evidence that when the officers knocked on the door and the four people became aware of their presence, one of the four attempted to flee. The evidence is so similar to that in McAnulty that the language therein concerning receipt of the property by defendant can be paraphrased to fit this case in these words:

Receipt. State v. Magers, supra, does hold that possession of recently stolen property is no basis for an inference that the possessor received, rather than stole, the property. Here, however, there were additional circumstances. There was evidence from which involvement of others could have been found — the three other people who were trying to remove identification markings, one of whom attempted to flee.
Such additional evidence would have permitted the inference that they — or at least the one who attempted to flee— were the thieves and appellant the recipient of the property. See People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 1044[3],

Judgment affirmed.

MORGAN, C. J., BARDGETT, REND-LEN, JJ., and WELBORN, Special Judge, concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

SIMEONE, J., not sitting.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

DONNELLY, Judge,

dissenting.

The determinative question on this appeal is whether there was sufficient evidence that appellant received stolen goods from another.

“The rule is well established that conjecture, suspicion or surmise is not sufficient as a basis of conviction.” State v. Wilson, 345 Mo. 862, 869, 136 S.W.2d 993, 996 (1940).

“An inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary and the inference exists both as to the offense of burglary and of stealing.” State v. Cobb, 444 S.W.2d 408, 414 (Mo. banc 1969). In other words, the unexplained possession of property recently stolen, as was the case here, is evidence that the possessor is guilty of a wrongful taking of the property. However, the unexplained possession of property recently stolen does not give rise to the inference that the possessor is guilty of the offense of receiving stolen property from another under § 560.270, RSMo 1969. State v. Magers, 452 S.W.2d 198, 200 (Mo.1970). Appellant cannot be both the thief and the receiver of stolen property. She cannot receive stolen property from herself.

The record is barren of any proof tending to show that appellant received the stolen property from another. The State contends receipt may be found from the evidence of her efforts to remove identifying marks on the stolen property, that three other persons were involved, that one of them attempted to flee, and that appellant was not in possession of all the stolen property, relying on State v. McAnulty, 491 S.W.2d 259 (Mo.1973). I would overrule McAnulty. The evidence in this case is more consistent with guilt of stealing than with guilt of receiving stolen property from another. Of course, appellant may not be guilty of both offenses. In any event, it seems to me that only by resorting to speculation and conjecture outside of and beyond the scope of the evidence may it be found that appellant received stolen property from another. The verdict of guilty should not be permitted to stand.

I respectfully dissent.


source: Caselaw Access Project

author: BARDGETT, Judge. SEILER, Judge,

license: Public Domain

text:
    SUZY’S BAR & GRILL, INC., Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. 60669.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.
    As Modified On Court’s Own Motion On Denial of Rehearing May 17, 1979.

      Aaron A. Wilson, City Atty., George L. DeBitetto, Asst. City Atty., Kansas City, for appellant.
    Haskell Imes, Kansas City, for respondent.
   BARDGETT, Judge.

Appellant Kansas City (city) appeals from a judgment of the circuit court which invalidated ordinance numbers 42074, 43630, and 43864 which imposed a “License or Occupation” tax on the grounds that (1) the tax was a sales tax and had not been submitted to a vote of the people as required by sec. 94.510, RSMo 1969, and (2) the tax was imposed in violation of the uniformity provisions of art. 10, sec. 3, Mo.Const. The appeal was filed prior to January 2, 1979. This court has jurisdiction. Art. 5, sec. 3, Mo.Const., as amended 1970.

Because this court finds the tax to be a sales tax and invalid for the reason that it was not submitted to a vote of the people, the second issue will not be reached and the factual recitation will be restricted to that necessary to the decisional issue.

Respondent Suzy’s Bar & Grill, Inc., is a restaurant in Kansas City. It paid taxes under the disputed ordinances under protest and then filed this action seeking a declaration that the tax was invalid and a judgment for refund. As noted, the circuit court found the tax to be invalid and ordered the refund.

The underlying facts are undisputed. The city passed a series of ordinances that imposed a 1% tax on the “gross receipts” of cafes, cafeterias, lunchrooms, and restaurants within the corporate limits of Kansas City. The ordinances are codified as sec. 21.95 of the Code of General Ordinances of Kansas City. The tax is to be paid on the gross receipts from the retail sales of food prepared on the premises and delivered to the purchaser. An amendment to the ordinance permitted a licensee to separately state the amount of the tax on all sales tickets for retail sales of food. Section 21.95 was enacted as an “Occupational License Tax” and was never voted on by the people of Kansas City. Thus far the tax proceeds have been used to help retire the bonded indebtedness for the H. Roe Bartle Convention Center. However there is no legal limitation placed on the use of these funds and the funds are a part of the general revenue of Kansas City.

The city distributed a tax chart to respondent and others to be used by them with respect to the instant tax. The chart provides in part:

FOR RESTAURANT USE ONLY — Kansas, City, Missouri Effective January 1, 1975
* Tax per Sales Tax Chart (3% Mo. State + 1% City Sales Tax)
4% 1% Occ. Total
Sale Sales Tax * Lie. Tax Tax
.00- .12 .00 .00 .00
.13- .31 .01 .00 .01
.32- .54 .02 .00 .02
.55- .81 .03 .01 .04
.82- 1.08 .04 .01 .05
1.09- 1.35 .05 .01 .06
1.36- 1.62 .06 .02 .08
1.63- 1.87 .07 .02 .09
1.88- 2.12 .08 .02 .10
29.13-29.37 1.17 .29 1.46
29.38-29.62 1.18 .30 1.48
29.63-29.87 1.19 .30 1.49
29.88-30.12 1.20 .30 1.50

As noted supra, the circuit court found this tax to be a sales tax and, because city sales taxes must be submitted to the

electorate pursuant to sec. 94.510 and since this was not done, held the ordinances invalid.

The court is aware of the fact that municipalities have utilized gross receipts of various businesses as the monetary basis for assessing an occupational, franchise, or licenses tax as a prerequisite to doing business within the municipality. Kansas City v. John Deere Co., 577 S.W.2d 633 (Mo. banc 1979). This case does not concern a municipality’s power to enact such a tax.

The question here is whether the tax enacted is a sales tax. The differences between various types of taxes have become blurred over the years as a result of numerous innovative methods of taxation engaged in by various governmental taxing authorities. As pointed out by appellant, the court is not bound by what the legislating body calls the tax but must determine the matter from a consideration of the provisions of the statute or ordinance itself. State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453 (banc 1911). Nor is it decisive to note that the tax involved here is called a “gross receipts” tax because the state sales tax is also a form of “gross receipts” tax. Section 144.021, RSMo 1969; Fabick & Co. v. Schaffner, 492 S.W.2d 737 (Mo.1973); Virden v. Schaffner, 496 S.W.2d 846 (Mo.1973); Farm & Home Savings Ass’n v. Spradling, 538 S.W.2d 313, 316 (Mo.1976).

The fact that the ordinances impose the obligation to pay the tax of 1% upon the licensee without affording the licensee the legally enforceable right to collect 1% of the food bill from the customer does not necessarily mean the tax is an “Occupational License Tax” and not a “sales tax”. If the tax is truly an occupational license tax on gross receipts assessable against the licensee, then whatever part of the customer’s bill which represents a portion of the licensee’s tax obligation is collectible from the purchaser because it is simply part of the charge for food made by the licensee out of which the licensee must pay the expense of doing business, including such expense items as taxes. Ludwigs v. City of Kansas City, 487 S.W.2d 519 (Mo.1972). And whether the merchant chooses to advise the customer of what the merchant considers to be the amount of his (merchant’s) license tax by inserting that amount on the customer’s bill would seem to be a matter of choice with the merchant and would not require specific legislative authority. The cases of State ex rel. City of West Plains v. Public Service Commission, 310 S.W.2d 925 (Mo. banc 1958), and State ex rel. Hotel Continental v. Burton [Public Service Commission], 334 S.W.2d 75 (Mo.1960), relied upon by the city in support of its contention that the instant tax is not a sales tax simply because the ordinances permitted the licensee to state the tax on the customer’s bill, are inapposite. The issue in City of West Plains primarily involved the question of whether the Public Service Commission under its rate-making power had the authority to permit the utility, as part of an authorized rate, to pass a proportionate share of the utility’s municipal license taxes on to consumers who resided in the taxing municipality. The issue in Hotel Continental was, with minor variations, the same as in City of West Plains. However, the difference between the base upon which the occupational license tax was assessed in West Plains and Hotel Continental as compared with the base upon which the instant city tax is assessed points up the difference between the occupational license tax and a sales tax and forms the basis for our decision in this case. In both instances, the base is referred to as “gross receipts” but the distinction lies in the difference between the receipts upon which the tax is assessed.

In West Plains and Hotel Continental the license tax consisted of a percentage of the monies received by the licensee including the amount of money itemized by the licensee utility as the customer’s proportional share of the tax. In the instant case the 1% Kansas City license tax is not assessed on all the revenue received by the licensee from the food purchasers. The 1% is assessed only on that amount representing the restaurant food charge but not on the sum received as state and city sales tax or the Kansas City “Occupational License Tax”. This is clearly demonstrated by the Kansas City tax chart shown supra. Using the last line of the chart it is seen that the 4% sales tax of 1.20 on a 29.88-30.12 purchase is arrived at by multiplying 29.88 X .04 for a tax of 1.1952 (1.20), and the occupational tax is arrived at by using the same base of 29.88 and multiplying it by .01 for a tax of .2988 (.30), the total tax then amounting to 1.50. If this were an occupational license tax, the allocation of tax on the customer’s bill would not be 1% of the food charge nor the precise percentage specified in the ordinance as the tax on the licensee but would be a percentage of the licensee’s tax. This is demonstrated by the case of Ludwigs v. Kansas City, supra.

In Ludwigs the plaintiffs-taxpayers sued Kansas City to recover gross receipts taxes allegedly collected by utility companies and paid by the utilities to the city. Plaintiffs claimed the amount collected and paid to the city exceeded the amounts specified in the license tax ordinances. The tax specified in one of the ordinances was 10% of gross receipts of the utility. Plaintiffs claimed they were being charged over 11% on their bills. The court held the city had not exceeded the ordinance’s amount and set forth the following example, 487 S.W.2d at 521, footnote 4:

“For example, plaintiffs say that under the 10% gross receipts tax a customer with a bill of $10.00 for utility service would pay $10.00 for the service, plus $1.10 for the tax, or a total of $11.10, whereas his part of the tax should be only $1.00 and the total only $11.00.
“Defendants’ example of the method used by each utility company to compute the occupation license tax and each customer’s pro rata part thereof is as follows: assuming taxable revenues of $1,000,000 subject to the 10% gross receipts tax, the utility company’s license tax would be $100,000 to be paid from the $1,000,000. The pro rata share of this tax of each customer with a $10.00 bill would be $1.00. The Commission’s order required that the customer’s total bill be broken down to show the tax separated from the other part of the charge, that is, $9.00 for all other allocations in the rate and $1.00 for the customer’s pro rata share of the license tax. To arrive at a formula to apply to $9.00 to arrive back at the $10.00 overall bill necessary to pay the tax, one simply takes the equation 1.00/9.00, which equals 11.1%. This percentage (11.1) applied to $9.00 equals $1.00, the customer’s pro rata share of the license tax. The gross receipts from the $10.00 customer remains as $10.00 and, under this method of computation, the utility company continues to pay a license tax of $1.00 on a bill of $10.00 (10% of $10.00).”

In other words, a gross-receipts-oceupa-tional-license tax starts with the revenue received by the licensee, not the basic charge made to the customer by the merchant, and assesses a tax equal to a percentage of those revenues without regard to the makeup of the revenue and without restrictions to the percentage stated in the taxing ordinance. In the example, supra, the 10% was assessed against the revenues of the utility and included in those revenues was the proportionate amount of those taxes attributed by the utility to each customer. On a 10% gross receipts tax the percentage collected from the customer was 11.1% of the basic bill even though the tax was only 10% of the gross receipts of the licensee.

Ludwigs cites State Tax Commission v. Quebedeaux Chevrolet, 71 Ariz. 280, 226 P.2d 549 (1951), and Vause & Striegel, Inc. v. McKibbin, 379 Ill. 169, 39 N.E.2d 1006 (1942), with approval. Quebedeaux Chevrolet, involved an automobile dealer who claimed he was not liable for gross receipts taxes on his collections itemizing such taxes. The Supreme Court of Arizona held that the tax was part of the overall cost of operation and must be considered by the plaintiff in fixing his selling price, stating at 552: “Each item considered in setting the ultimate selling price, including the tax now in question, is paid by the consumer solely to get the goods. The tax therefore is part of the purchase price, and this price which is paid to get the goods which plaintiff does sell constitutes gross income on each transaction. . . . The tax therefore is a part of the selling price which forms the base upon which the amount of the tax is levied.”

In Pause the validity of a certain rule, No. 20, promulgated by the department of finance was in issue. The rule provided, 39 N.E.2d at 1007: “Regardless of how the retailer may set up his selling price, he is required to pay a tax measured by his gross receipts. For example, where a merchant follows the practice of selling an article for $1.00 and adds 3 cents thereto to reimburse himself for the [3%] tax which he will be required to pay, his gross receipts from such sale are $1.03, and he will be required to pay a tax at the rate of [3%] of $1.03 and not at the rate of [3%] of $1.00.” The Illinois Supreme Court affirmed the decree of the circuit court’s finding that the rule was valid.

The foregoing cases are cited to show how an occupational license tax on gross receipts actually operates in order to demonstrate that the Kansas City tax involved in this ease is not an occupational license tax based on gross receipts but is a sales tax based on each individual sale.

A sales tax is assessed against the taxpayer as a percentage of the price of the goods. If the tax in Ludwigs was a sales tax of 10%, then the tax on a $9.00 utility bill would be .90 and not 1.00 and the total remittance to the utility would be 9.90 and not 10.00. An occupational license tax would then be computed as a percentage of the 9.90 and not a percentage of 9.00.

In the instant case, Kansas City admittedly assesses this tax on the owners of restaurants, etc., at 1% of the base price, the same as the state and city sales tax is assessed. If the menu price for food purchased totals $30.00, the sales tax (state 3% + city 1%) of 4% is $1.20 (.04 X 30 = 1.20), and the “Occupational License Tax” of 1% is .30 (.01 X 30 = .30). It is clear, therefore, that the tax is assessed on the amount of the sale and not upon the amount of the licensee’s receipts.

The difference between a sales tax and a license tax which is prorated and itemized to a customer may or may not be significant in its actual impact. Nevertheless, the legislature by sec. 94.510 has required that sales taxes assessed by municipalities be first approved by the electorate. As such, the legislature perceived a difference between sales taxes and other taxes, including occupational license taxes, and required the former to be submitted to the people.

The instant tax imposed by ordinance numbers 42074, 43630, and 43864 is a sales tax and it was not submitted to a vote of the people as required by sec. 94.510, RSMo 1969, and is therefore invalid.

The judgment of the circuit court is affirmed.

MORGAN, C. J., and DONNELLY, RENDLEN and SIMEONE, JJ., concur.

SEILER, J., concurs in separate concurring opinion filed.

FINCH, Senior Judge, concurs and concurs in separate concurring opinion of SEILER, J.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

SEILER, Judge,

concurring.

I concur in the outcome of the principal opinion.

As I understand the situation, where Kansas City gets into trouble with the tax under consideration is that it uses as the base the advertised price, the menu price, or the “sticker” price used by the merchant. Applying a percentage to the menu price is the equivalent of a sales tax. On the other hand, had Kansas City used as its base here the menu price (which we can assume would include as part of the overhead the portion of the gross receipts tax allocable to that customer) plus the four percent sales tax, and then applied its one per cent license tax against the total of the above two items, there would have been a license tax measured by gross receipts and the ordinance would be valid and no vote of the people would be required.


author: SIMEONE, Judge.

text:
    Pamela YARDLEY and Andrew Yardley, Appellants, v. Gaylord MONTGOMERY, Employer and United States Fidelity and Guaranty Company, Insurer, Respondents. John Scott ASHER, a minor, et al., Appellants, v. KILLION CONSTRUCTION CO. et al., Respondents.
    Nos. 60961, 60844.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.

      Senator Emory Melton, Cassville, for John Scott Asher et al.
    Glenn A. Burkart, Springfield, for Killion Const. Co.
    Kenneth D. Kyser, Moberly, for Pamela Yardley et al.
    Kelly Pool, Jefferson City, for Gaylord Montgomery and U. S. Fidelity.
   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 divided 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 by 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.

Briefs were filed by the parties, arguments were made and on December 28, 1976, the Commission revised its order of July 13, 1976, and entered a modified award. This modified award stated that the

“. . dispute is over the construction of the provisions of Section 287.240, Revised Statutes of Missouri, 1969, as amended in 1974, relating to the effect of the remarriage of the widow in terms of the amount of the benefits the minor children shall receive within the two-year period immediately following the date of remarriage and in terms of the amount of benefits the widow shall receive in lump sum as result of remarriage.”

The Commission concluded that the widow is entitled to a lump sum benefit of 104 weeks times her weekly benefit immediately upon remarriage but “that the minor children are entitled to continue their weekly benefits at the amount of $10.00 each after the date of remarriage of the widow for a period of 104 weeks.” The Commission believed that § 287.240(4)(a) is subject to the limitations of § 287.240(2) which limits compensation to $95.00 per week.

The Commission therefore ordered that the widow be awarded a lump sum payment of $7,626.32 ($73.33 times 104 weeks) and that the payment of $10.00 per week to each of the children be continued for 104 weeks after May 14, 1976, and upon the expiration of the two year period each child shall then receive a weekly benefit of $46.67 until age eighteen.

From this modified order, the children appealed to the circuit court of Howard County. On April 25, 1977, the court affirmed the order of the Commission and ordered that the widow was entitled to a lump sum payment and that the dependent children continue to receive $10.00 per week for 104 weeks and upon the expiration of 104 weeks the children should then receive $46.67 ($36.66 or ½ of the widow’s award + $10.00).

Appeal was taken to the court of appeals, Western District which reversed the judgment of the circuit court and remanded the proceedings with directions. That court held that (1) upon remarriage the widow was entitled to a lump sum remarriage payment in an amount equal to the weekly benefits for a period of two years and (2) that immediately upon the remarriage of the widow the children were entitled to receive the periodic benefits to which the widow would be entitled had she not remarried, in addition to the original award to the children.

III.

In Asher v. Killion Construction Company and Employers Mutual Casualty Company, No. 60844, consolidated with Yardley, No. 60961, Leslie John Asher, an employee of Killion died on February 26,1975 as a result of an accident arising out of and in the course of his employment.

Mr. Asher left a surviving widow Shirley-anne and a son, John Scott, age one year. The insurer on behalf of the employer promptly began payment of compensation death benefits and paid the statutory medical and burial expenses.

On April 29, 1975, a hearing was held before a referee and on an agreed statement of facts the referee entered an award — awarding to the widow $73.34 per week and to the minor son the sum of $20.00 per week. The referee ordered that “[tjhese sums are to be paid to Shirley Anne [sic] Asher and John Scott Asher at the rate of $93.34 per week or until the prior death or remarriage of Shirley Anne [sic] Asher, then as provided by law.”

On October 27, 1976, the widow married Harold Dean Carr, Sr. Following the normal course, the Labor and Industrial Relations Commission on January 13, 1977, entered its modifying award. The order entered by the Commission stated:

“(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 $7627.36, which is the amount due her per week ($73.34) times two years (104 weeks). Thereupon the death benefits heretofore paid to said widow, Shirley-anne L. Asher, cease and abate as of October 28, 1976. A duly executed receipt for compensation shall be filed with the Commission.
“(2) The minor child, John Scott Asher, is continued the weekly benefit of $20.00 from October 28, 1976 for 104 weeks thereafter, at which time his benefit amount will be increased by $73.34 per week.
“(3) Said death benefits due said minor child shall be paid to Shirleyanne L. Carr, his mother and natural guardian, for his support, maintenance and education.
“Otherwise said award of April 29, 1975, shall remain in full force and effect as originally written.”

The appellants, mother and son appealed to the circuit court of Taney County. On October 11, 1977, the court affirmed the order of the Labor and Industrial Relations Commission. On application of the employer to transfer the cause here, the application was sustained and the cause was transferred prior to opinion and consolidated with Yardley.

IV.

The briefs of the parties are essentially the same and we shall treat both of these eases together.

On appeal, the appellants in Yardley contend that the court erred in affirming the modified order of the Industrial Relations Commission because that order was contrary to § 287.240 in that the periodic death benefits payable to the widow were not to be divided among the children until the expiration of a two year period following remarriage when in fact the children were entitled to the widow’s periodic death benefits immediately upon the remarriage of the widow. The appellants rely on the language of § 287.240(4)(a) as amended in 1974. They contend that there is nothing in the statute to justify a conclusion that the word “thereupon” means waiting two years. They argue that the Commission determined that § 287.240(4)(a) was limited by subsection (2) limiting the amount of compensation to $95.00 per week, but that if this is so why then is not subsection 1 (burial expenses) and the lump sum remarriage award not limited by subsection 7 which requires that all death benefits be paid in installments.

The respondents argue that subsection 2 limiting compensation to $95.00 per week and subsection 7 requiring death benefits to be paid in installments in the same manner as provided for disability compensation and § 287.160 limiting compensation to $95.00 per week must be considered in connection with subsection (4)(a) thereby limiting the benefits payable under workmen’s compensation to a maximum of $95.00 per week. Hence to require the employer-insurer to pay, in addition to the lump sum remarriage benefit an increased amount to the children to which the widow would have received had she not remarried would exceed the statutory maximum of $95.00 per week. To require the employer to pay the lump sum remarriage payment and in addition increase the award to the children upon the remarriage of the widow would be in direct conflict with subsection 2 of §§ 287.-240 and 287.160 and place an unwarranted and burdensome obligation on employers and insurers.

Respondents argue that the provisions of the lump sum remarriage award resembles the authority contained in § 287.530 authorizing the Commission to commute to a lump sum future installments of compensation under an award providing for periodic benefits for a stated period of time. They rely on Bruce v. Missouri-Kansas-Texas R. Co., 229 Mo.App. 124, 73 S.W.2d 425 (1934). They contend that the payment of certain benefits works a deferral of additional benefits provided in the law, relying on Cowan v. Southwestern Bell Telephone Co., 529 S.W.2d 485 (Mo.App.1975) and Strohmeyer v. Southwestern Bell Telephone Co., 396 S.W.2d 1 (Mo.App.1965). They argue that the widow would not be entitled to double payments and for the court to construe § 287.240(4)(a) as authorizing the payment of a widow’s share of periodic benefits to minor children prior to the expiration of the period of time covered by her commuted payment would require double payments in violation of the express language of §§ 287.240(2) and 287.160.

They also rely on decisions in other jurisdictions including—Carlin v. Lockport Paper Co., and Federal Marine Terminals, Inc. v. Byrne, supra.

Summarizing the thrust of the respondents’ position it is: First, that the periodic death benefits to which the widow would be entitled had she not remarried are to be deferred for two years because if the children are entitled to the widow’s benefits immediately upon remarriage, the total compensation would exceed the statutory limit of $95.00 contained in §§ 287.240(2) and 287.160(3). They take this position because § 287.240(4)(a) conflicts with and must be read in conjunction with §§ 287.-240(2) and 287.160 relating to compensation for disability, and that it is clear that the General Assembly intended to limit the benefits payable under the law to $95.00 per week. If in addition to the lump sum remarriage payment, the children were immediately entitled to the periodic death benefits to which the widow would be entitled upon the date of remarriage, the compensation would exceed the statutory maximum of $95.00 per week. Second, to increase the compensation to the children immediately upon the remarriage of the widow is akin to commutation to a lump sum of future installments violative of § 287.530 and Bruce v. Missouri-Kansas-Texas R. Co., 73 S.W.2d at 425. Third, it is the policy of the law to prohibit double payments. Fourth, decisions in other states hold that the increased payments to the children after the remarriage of the widow are to be deferred until the depletion of the remarriage lump sum award.

V.

As stated, we are of the opinion and hold that under the specific provisions of § 287.240(4)(a) that upon the remarriage of the widow of a deceased employee who has received a lump sum remarriage award, the periodic benefits awarded to the widow and to which the widow would have been entitled had she not remarried should be divided among the minor children immediately upon the remarriage and that the payments are not to be deferred until the termination of 104 weeks subsequent to the remarriage. Thus we reverse the judgments of the respective circuit courts. We do so for several reasons.

Section 287.240, RSMo Supp.1975 was considerably revised in 1974. (Laws, 1973-1974, pp. 853, 861). Two significant changes were made by the General Assembly. Subsection 2 of that section, prior to its amendment, provided that “The employer shall also pay to the total dependents of the employee a single total death benefit . .” That language was omitted in the 1974 amendment and now reads, “The employer shall also pay to the total dependents of the employee a death benefit . . .” The other significant change was in the wording of subsection 4(a). Prior to the amendment, subsection 4(a) ended with the first sentence. The 1974 amendment added the language presently under construction.

.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 other total dependents and paid to them during their period of entitlement under this chapter.”

This amendment is clear in that it provides that “thereupon” (the proper antecedent for “thereupon” is the phrase “on the death or remarriage of the widow or widower”) the periodic death benefits, in the event there are other total dependents, to which the widow would have been entitled had she not remarried “shall be divided among such other total dependents and paid to them during their period of entitlement. .. ."

This section is, in our opinion, not limited by the maximum death benefit compensation of $95.00 per week in § 287.240, subsection 2 or the disability compensation in § 287.160(2). While the Commission gave dominant effect to the provisions of the maximum compensation in § 287.240(2), the benefit in subsection 4(a) constitutes a separate benefit unrelated to death benefit installment compensation award. The express terms of § 287.240(2) are that only the death benefit, i. e., compensation payable in installments shall not exceed the maximum of $95.00 per week.

There are, in § 287.240 three compensations provided: (1) burial expense, (2) a lump sum remarriage award and (3) a “death benefit” or “compensation payable in installments” not to exceed $95.00 per week. Only the death benefit in subsection 2 is subject to the maximum. The lump sum remarriage payment is not so subject, hence the periodic death benefit to which the widow is entitled had she not remarried which are directed to be divided to the dependent children are also not subject to the maximum limitation. There is no basis in the statute to treat the lump sum payment to the widow as a death benefit subject to the maximum limitation of $95.00 per week in subsection 2. Construing the statute as a whole, the maximum limitation of $95.00 per week is not applicable to burial expense in subsection 1 and the lump sum remarriage payment in subsection 4.

There is nothing in subsection 4(a) which indicates the intention of the General Assembly to limit the liability of the employer by subsection 2 or by § 287.160. The history of the workmen’s compensation law shows a progression of an enlarged liability intended to relieve employees and their dependents from the financial burden of industrial injuries which result in death. See Domrese and Graham, Workmen’s Compensation in Missouri, 19 St.L.U.L.J. 1 (1974).

Furthermore, there are certain benefits under the workmen’s compensation law which are not payable in installments. Among them are burial expenses (§ 287.-240(1)) and medical expenses.

Thus, we believe the legislative intent in the amendment to § 287.240 made in 1974 is that although the death benefit for weekly compensation is limited to $95.00 per week, this limitation is not applicable to the lump sum remarriage benefit so that the weekly benefits to which the widow would have been entitled had she not remarried are to be divided among the other total dependents upon remarriage.

VI.

Respondents also rely on an alleged analogous situation in § 287.530, RSMo 1969 relating to commuting compensation. That provision states:

“1. The compensation provided in this chapter may be commuted by the division or the commission and redeemed by the payment in whole or in part, by the employer, of a lump sum which shall be fixed by the division or the commission, which sum shall be equal to the commutable value of the future installments which may be due . . ., if it appears that the commutation will be for the best interests of the employee or the defendants of the deceased employee, or that . the employee or dependent has removed or is about to remove from the United States or that the employer has sold or otherwise disposed of the greater part of his business or assets.
“2. In determining whether the commutation asked for will be for the best interest of the employee or the dependents of the deceased employee, or so that it will avoid undue expense or undue hardship to either party, the division or the commission will constantly bear in mind that it is the intention of this chapter that the compensation payments are in lieu of wages and are to be received by the injured employee or his dependents in the same manner in which wages are ordinarily paid. Therefore, commutation is a departure from the normal method of payment and is to be allowed only when it clearly appears that some unusual circumstances warrant such a departure.”

Respondents rely on Bruce v. Missouri-Kansas-Texas R. Co., supra. In that case the employee received an award of weekly benefits for a stipulated period of time. Thereafter the employee applied for a commutation and a lump sum payment on the ground that the payment would avoid undue hardship. The employee sought to reopen the case on the grounds of increased disability. The appeal was from a judgment from an award granting additional compensation because of “change of condition.” The court held that the commission had no authority to entertain the application for additional compensation until the period of time for which he would have been paid the lump sum in installments had expired. “The commutation was a cash settlement for the unpaid weekly payments ending in the week closing on March 1, 1931.” 73 S.W.2d at 429.

But Bruce is not dispositive of the case here. The lump sum commutation under § 287.530 is a procedure by which compensation may be commuted for certain purposes. This section does not authorize any additional compensation but is limited to the benefits to which the employee or his dependents are entitled. Section 287.-240(4)(a) is a separate and independent provision providing a lump sum remarriage award which when remarriage occurs the periodic death benefits to which the widow would have been entitled had she not remarried are to be divided among the other dependents and paid to them during their period of entitlement.

The construction by the Industrial Relations Commission rests on the supposition that the lump sum payment represents an advancement of benefits due over the two year period and must be depleted before the periodic benefit due the widow may be redistributed to the children. There is no suggestion in the statute which requires this interpretation. In the light of the development of workmen’s compensation legislation, the lump sum stipend to the widow upon remarriage leaves unaffected the right of the children as other total dependents to the immediate use of the periodic death benefits upon remarriage of the widow.

The respondents — employer and insurer— rely on the Southwestern Bell eases, supra, for the proposition that double payments are not authorized. Those decisions do not control the issue here. Those decisions construed § 287.160, subsection 3 which entitles the employer to credit for wages paid the employee after the injury and “for any sum paid to or for the employee or his dependents on account of the injury . . . .” In Cowan v. Southwestern Bell Telephone Co., supra, the court held that the employer was to be credited for benefits paid under an employee benefit plan under § 287.-160(3).

These decisions are of no aid to the respondents for they do not deal with the special incentive benefit provided in § 287.-240(4)(a).

The respondents rely on decisions in other states which they contend control the issue that the childrens’ increased benefits are to be deferred until the expiration of the two-year lump sum award period. They rely principally on Carlin v. Lockport Paper Co., supra, Federal Marine Terminals, Inc. v. Byrne, supra, and Di Donato v. Rosenberg, supra.

In Carlin an employee met with an industrial accident causing death. He was survived by a widow and four children. An award was made for death benefits being in the aggregate 66⅜ percent of the average wage — 30 percent to the widow and 9⅛ percent to each of the four children. The widow thereafter remarried and the widow was paid a remarriage award for two years’ compensation. The children’s award was then increased to 10 percent to each child. The question raised was whether the awards were contrary to the provisions of the workmen’s compensation law, limiting the total amount payable to 66⅜ percent of the average wages of the deceased. The court held that, under the statute authorizing a lump sum remarriage award and an additional amount of compensation to the children, limited the total amount payable to sixty-six and two thirds percent. The effect of the awards raising the death benefit to each of the children at the time of the remarriage when the widow received two years lump sum benefit exceeded the total amount payable contrary to the statutory provisions. “The intention of the Legislature, expressed in the last clause of said subdivision 2 of section 16 of the Workmen’s Compensation Law, was plainly to limit the total amount of awards to 66⅜ per centum.” 212 N.Y.S. at 66.

In Federal Marine, the sole issue was whether the widow was entitled to a lump sum payment of two years compensation upon her remarriage. Strangely enough the employer in this case contended that the widow was not entitled to a lump sum award but that the children were entitled to an increased statutory award. The District Court held that under the Longshoreman’s and Harbor Act, 33 U.S.C.A. §§ 909, 909(b), 921, the widow was entitled to the lump sum award. In the course of that opinion the court noted the language of the specific provision to be construed — 33 U.S.C.A. § 909(b) contained a specific proviso that the “. . total amount payable shall in no case exceed 66⅜ per centum of such wages, . . ” and stated:

“As a practical matter, it means that as of the date of the surviving widow’s remarriage, she became entitled to two years’ compensation for the period . in a single sum at the rate of 35 per cent of the deceased’s average wage. During that two year period, the three surviving children of the deceased are entitled to sequential death benefits at a rate of 31⅜ per cent of their father’s average wage. These two amounts total the maximum statutory award of 66⅜ per cent for that time period. On September 2, 1969, [the end of the two years] the mother’s compensation period will lapse, and the children, equally and among themselves, become entitled to payment at the rate of 35 per cent for one child and 15 per cent for each of the other two children, or a total of 65 per cent, of their father’s average wage.” 46 F.R.D. at 36.

These cases are, in our opinion, not controlling in these cases. Those cases interpreted the particular statute involved which contained within itself a limitation on the “total amount payable.” In each case, the death benefit compensation, the lump sum remarriage award and the maximum statutory allowance for the total amount payable were all contained within the same subsection so that all forms of benefits to the widow and children were limited by the proviso limiting the total amount payable. In each case, also, the wording of the statute treated the death benefit award and the lump sum award as a death benefit subject to the maximum allowance.

But our statute, in our opinion, contains a different rationale and the benefits and awards are not so entwined so as to place a statutory limit on the lump sum award provision in subsection 4(a) of § 287.240. Three different compensations are clearly described in § 287.240: the burial reimbursement, the installment death benefit (subsection 2) and the lump sum remarriage award in subsection 4. Only the installment death benefit award, by the express language, limits the total amount payable. Unlike the statutes in Carlin and Federal Marine which limited the total amount payable, the death benefit provided for in subsection 2 of § 287.240 provides only that compensation shall be payable in an amount not to exceed $95.00 per week without curtailment as to the total amount payable.

The statutes construed in Carlin and Federal Marine also contain no language as that found in our statute that “thereupon” the periodic death benefits to the widow shall cease and the periodic benefits to which the widow would have been entitled had she not remarried “shall be divided among such other total dependents and paid to them during their period of entitlement . (Emphasis added).

In short, our statute presents differences from Carlin and Federal Marine.

The issue here is more akin to Blumenfeld v. Rust Craft Greeting Cards, Inc., 51 N.J. 1, 236 A .2d 883 (1967). That court, confronted with the issue before us concluded that under the compensation law, the widow was to receive the lump sum and the compensation payable to the other total dependents must be recomputed as of the date of the remarriage. The compensation division rejected the employer’s contention that the weekly payments should continue as originally ordered until the portions allocated to the widow and paid to her after remarriage with recomputation as to the children to occur at that point. The Supreme Court of New Jersey stated:

“The question then is whether the Legislature intended to cut down the benefits theretofore payable to other total dependents or intended the payment to the widow on remarriage to be an additional obligation of the employer. Neither the wording of the statute nor its history indicates which of these approaches was in the legislative mind. We think it more likely that the Legislature intended the burden of the increase to be borne by the employer. This view is more in keeping with the remedial objective of the compensation law.
“We accordingly hold that upon remarriage (1) the widow receives in lump sum, without discount, the balance of the compensation not yet accrued to her, or $1,000, whichever is the lesser, and (2) the compensation payable to the other total dependents must be recomputed as of the date of the remarriage.” 236 A.2d at 884. See also, Blumenfeld v. Rust Craft Greeting Cards, Inc., 94 N.J.Super. 584, 229 A.2d 663 (1967).

VII.

In summary, we conclude that upon the remarriage of the widow of the deceased employee, the periodic benefits to which the widow would have been entitled had she not remarried is to be divided among the minor children immediately upon remarriage and such payments are not to be deferred for two years.

The judgments of the respective circuit courts are reversed and the causes remanded to the Labor and Industrial Relations Commission for an entry of an award in accordance with this opinion.

MORGAN, C. J., BARDGETT, REND-LEN and SEILER, JJ., and WELBORN, Special Judge, concur.

DONNELLY, J., concurs in result.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

      . The Commission, in its memorandum, quoted from §§ 287.240(2) and 287.240(4)(a). The employer-insurer contend that these sections considered together mean that upon remarriage the widow receives a lump sum and upon remarriage the children continue to receive weekly benefits of $10.00 each until the two year period has expired at which time their weekly benefits would be increased by the widow’s award of $73.33 divided between them. On the other hand the widow and children contend the children are entitled to the increased amount upon the remarriage of the widow.

      . The Commission relied on Carlin v. Lockport Paper Co., 214 App.Div. 354, 212 N.Y.S. 65 (1925); Matter of Di Donato v. Rosenburg, 263 N.Y. 486, 189 N.E. 560 (1934); Federal Marine Terminals, Inc. v. Byrne, 46 F.R.D. 33 (N.D.Ill.1969).
      The Commission in its order was troubled by the word “thereupon” in Section 287.240(4)(a). “ ‘Thereupon’ may simply mean that upon the expiration of the two-year period the benefit amount of tne minor children shall be increased. We are aware that the dictionary definition is ‘immediately thereafter.’ The question is ‘immediately thereafter’ which event — the event of the remarriage or the event of expiration of the two-year period? However, in light of the proposition that statutes are to be construed whenever possible to give harmony and effect to all their provisions and that it is not clear that the word ‘thereupon’ means to divide periodic benefits of the widow among the minor children immediately upon the remarriage of the widow, we can only conclude that the legislature did intend to limit the liability of the employer-insurer.”

      . The modified order was a 2-1 decision. One of the commissioners dissented. In the dissent, the Commissioner stated that if the majority opinion is to stand, the minor dependents must pay the penalty in all cases involving the remarriage of the widow. He believed that the majority opinion did not express the intent of the General Assembly. It was his opinion that the widow having been awarded the two year lump sum, the dependent children should immediately thereafter begin sharing that portion of the award originally allotted to her in addition to the benefits apportioned to them in the same original award.

      . “. . .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.”

      . The same rationale appears i Di Donato v. Rosenberg, supra.


text:
    Vickie Sue Followell IKERMAN et al., Plaintiffs-Respondents, v. Gary KOCH, d/b/a Gary’s Highway Shell and Gary’s Broadway Shell and American States Insurance Company, a corporation, Defendants-Appellants.
    No. 60822.
    Supreme Court of Missouri, En Banc.
    April 10, 1979.
    Rehearing Denied May 17, 1979.

      Edward J. Wynne, St. Louis, for defendants-appellants.
    Richard G. Steele, Cape Girardeau, for plaintiffs-respondents.
    Charles A. Mogab, Richard L. Hughes, Larry W. Glenn, St. Louis, amicus curiae.
   SIMEONE, Judge.

I.

This is an appeal from a judgment of the circuit court of Cape Girardeau County by appellants — employer and insurer entered on April 18, 1977 reversing an award of the Labor and Industrial Relations Commission which in turn modified a referee’s modified award which authorized a lump sum death benefit for two years to respondent, Mrs. Ikerman, the widow of a deceased employee on account of her remarriage without giving credit for the award to the appellants. Appellants, employer and insurer, appeal and contend the trial court erred in reversing the Commission’s order because the order was based on competent and substantial evidence. After decision by the court of appeals, Eastern District, and upon application by the appellants, we granted transfer and now decide the case as on original appeal under the provisions of Art. V, § 10, Mo.Const.; Rule 83.03.

The facts of this case are not in dispute. The issue turns on whether the respondent, Mrs. Ikerman, is entitled to be paid a lump sum death benefit award under § 287.-240(4)(a) or whether the employer is enti-tied to a credit of such lump sum following a third party recovery. 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, no third party recovery was effected.

II.

On January 8, 1975, Jerome Michael Fol-lowell was employed by Gary’s Highway Shell in Cape Girardeau. He had married the respondent Vickie Sue Followed on October 24, 1968. Two boys were born of the marriage. Michael Jerome was born in 1969 and Jeffrey Scott was born in 1972.

On the evening of January 8, 1975, Mr. Followed was engaged in his duties as an employee for Gary Koch. While attaching a wrecked car onto his employer’s wrecker he was struck by a pick-up truck driven by an uninsured third party. He received serious injuries from which he died on the same date.

A claim for compensation was filed with the Division of Workmen’s Compensation and the employer and insurer filed their answer to the claim. American States began making compensation payments of $64.00 per week commencing January 9, 1975 and made such payments through May 28, 1975. The total payments amounted to $1,280.00. American States also paid a funeral allotment of $800.00, a hospital bill of $203.60 and ambulance service of $45.00.

On May 24, 1975 the widow settled a wrongful death action which had been filed against the negligent third party for $29,-500. After deducting attorneys fees in the amount of $9,833.33, a net recovery of $19,-666.67 was had.

On January 15, 1976 a hearing was held before the referee in Cape Girardeau. The employer-insurer admitted that (1) the employer operated under the provisions of the workmen’s compensation law, (2) the employer was insured, and (3) Jerome Michael Followed was an employee and sustained a fatal injury by accident arising out of and in the course of his employment. The parties stipulated the rate of compensation to be $64.00 per week. At the hearing, the parties recognized that appellant — American States — was entitled to a credit of $19,-666.67 by virtue of the third party action at a weekly rate of $64.00 per week or for 307.29 weeks. “. . . And, 307.29 weeks from January 8, 1975 would mean that compensation should start in again on a monthly basis on or about December 1, 1980.” At the hearing dependency was proved, and on January 20,1976 the referee made his award. In his findings of fact, he found that Jerome Michael Followed sustained a fatal accident on January 8, 1975 arising out of and in the course of his employment and that he was survived by his widow Vickie Sue Followed and two minor children. He further found that the widow and children were total dependents and that the . dependents are entitled to distribution of death benefits . ” as follows: $48.00 per week to the widow, Vickie Sue and $8.00 per week for each of two children for a total of $64.00.

The referee further found (1) that the widow and children have effected a third party recovery of $29,500.00 less an attorney fee of $9,835.33 [sic] resulting in a net recovery of $19,666.67, (2) that the . . employer-insurer are entitled to a credit of said amount as advance payment of compensation for 307.29 weeks of death benefits at the rate of $64.00 per week; therefore employer-insurer are hereby directed to commence payment of death benefits to said dependents on December 4,1980, (3) that the employer-insurer paid $2,328.60 prior to the third party recovery and that the widow repaid that amount.

The referee also stated “. .In the event of remarriage [of the widow] a lump sum equal to death benefits due for a period of two years shall be paid to said widow. In event of either death or remarriage the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit as provided by Section 287.240(4)(A), VAMS.”

Some few days after the referee’s award and on January 31, 1976, Vickie Sue Follo-well married Donald Lee Ikerman in Cape Girardeau.

Upon application to the Division of Workmen’s Compensation to modify the award of January 20, 1976 on account of the remarriage of Mrs. Followell the referee on February 6, 1976, modified his award as follows:

(1) all death benefits accruing to the widow after December 4, 1980 are terminated as of February 1, 1976.
(2) the death benefits in the weekly sum of $48.00 due the widow on December 4, 1980 be paid to the two sons, Michael Jerome and Jeffrey Scott equally, “. . .so that said children will receive with the sum of $8.00 awarded to each of them by the award of January 20, 1976, the additional sum of $24.00 each, making a total weekly payment of $32.00, said payments to commence December 4, 1980.”
(3) the death benefits due the children shall be paid to Vickie Sue Followell Iker-man, their natural mother for their support, maintenance and education.
(4) “It is further ordered that Vickie Sue Followell Ikerman be paid a lump sum equal to death benefits due for a period of two years ($48.00 X 104 weeks = $4,992.00) on account of her remarriage to Donald Lee Ikerman, January 31, 1976.”

On February 24, 1976 appellants, Gary Koch and American States, filed an application for review with the Industrial Commission alleging that the referee’s modified award in paragraph 4 ordering a lump sum for a period of two years following her remarriage was erroneous.

On December 21, 1976, the Labor and Industrial Commission unanimously modified the referee’s modified award relating to the lump sum remarriage payment. As to the lump sum remarriage payment the Commission held:

“. . (4) As provided by Section 287.240(4) Revised Statutes of Missouri, 1969, [sic] the widow is entitled to a lump sum payment of 104 weeks times her weekly benefit amount of $48.00 per week immediately after the date of her remarriage. However, Section 287.150(2) Revised Statutes of Missouri, 1969 provides for a credit upon a third party recovery for all sums paid or payable under Chapter 288 [sic] . . . The Commission believes that the employer-insurer is entitled to a credit against the lump sum in this case because the lump sum payment upon remarriage is merely an advancing of the weekly benefit amount due the widow and the remarriage occurred on January 31, 1976 within the period in which the employer-insurer is entitled to a credit due to a third party recovery. Thus, the widow is entitled to $4,992.00 lump sum payment and the employer-insurer is entitled to a credit of $4992.00 as a result of the third party recovery against said lump sum payment.”

In effect the ruling of the Commission is that although the respondent Mrs. Ikerman is entitled to the lump sum payment, the employer-insurer is entitled to a credit in the amount of the lump sum as a result of the third party recovery. In effect, therefore, the Commission held that since the remarriage occurred during the third party recovery credit period the employer-insurer is entitled to a credit of the lump sum remarriage payment. The Commission interpreted § 287.240(4) to be merely “an advancing of the weekly benefit amount due the widow . . ” in the two years following her remarriage, hence there was no obligation to pay the lump sum remarriage benefit to Mrs. Ikerman.

We interpret the order of the Commission as stating (1) although Mrs. Ikerman is entitled to the lump sum remarriage payment there is no obligation on the part of the employer-insurer to pay it to her because (a) section 287.150(2) provides that the employer-insurer is entitled to a credit for all sums paid or payable upon a third party recovery, (2) the employer insurer is entitled to a credit of the lump sum remarriage payment because it is an advancing of the weekly benefit amount due the widow, and (3) since the remarriage occurred during the third party recovery credit period the employer-insurer is entitled to a credit of the lump sum remarriage benefit.

In short, the Commission held that although Mrs. Ikerman is entitled to a lump sum remarriage payment since there was a third party recovery, the employer-insurer is entitled to a credit of the lump sum.

On January 5,1977, Mrs. Ikerman appealed to the Circuit Court of Cape Girardeau County. On April 18,1977, the court found that “. . there is not sufficient competent evidence in the record to warrant said Industrial Commission in making said award . . . ”, reversed the Order of the Commission and reinstated the referee’s modified award, awarding Mrs. Ikerman the lump sum remarriage benefit equal to the death benefits for a period of two years.

On appellants’ application we granted transfer to review the question of the interpretation of § 287.240(4)(a) providing for the lump sum remarriage payment and its relation to § 287.150(2), which provides for credit to the employer upon a third party recovery.

III.

On this appeal the appellants contend that the circuit court erred in reversing the Industrial Commission because (1) the respondent, Mrs. Ikerman, had received a settlement from the negligent third party which covered all benefits due her under the workmen’s compensation act, and (2) the trial court did not allow a credit for the lump sum remarriage benefit.

Appellants argue that § 287.150(2), RSMo 1969 “is clear” that the employer is to be credited for all sums paid or payable under the chapter.

The widow-respondent on the other hand contends that (1) the Industrial Commission in awarding a credit of $4,992.00 for the remarriage benefit in addition to the $19,-666.67 third party recovery would result in a total credit of $24,658.67 despite a third party recovery of $19,666.67, (2) the legislative intent in adopting § 287.240(4)(a) was to discourage the tendency of widows to “live out of wedlock” rather than remarry and lose their weekly benefits and (3) § 287.150(2), while it does provide that the employer is entitled to receive or have credit for all sums paid or payable to the dependents the section provides that such credit is “to the extent of the settlement or recovery for the wrongful death.”

The Missouri Association of Trial Attorneys filed an amicus brief urging us to adopt the position of the respondent that the Industrial Commission erred in allowing credit for the lump sum payment because it would allow a credit in excess of the third party recovery which under § 287.150(2) limits the credit to the extent of the settlement or recovery for the wrongful death, and because § 287.240(4)(a) requires that the lump sum payment be paid (not set off) to the widow. Amicus also urges us to reexamine the Ruediger formula in Ruediger v. Kallmeyer Brothers Service, 501 S.W.2d 56 (Mo. banc 1973) of apportioning the share of the expenses of recovery of a third party recovery under § 287.150(3), RSMo 1969.

IV.

In the resolution of this proceeding we are not bound by the principle that we are not to substitute our judgment for that of the Commission when there is substantial evidence supported by the record. Where a ruling is based upon an interpretation of law, we are not bound by the Commission’s ruling. See Brotherton v. International Shoe Company, 360 S.W.2d 108, 111 (Mo.App.1962). Furthermore, where the facts are not disputed the award that should be entered by the Commission becomes a question of law and the Commission’s ruling is not binding on the appellate court. Corp. v. Joplin Cement Company, 337 S.W.2d 252, 258 (Mo. banc 1960). Here the facts are not disputed and thus the question becomes one of the application of the law to the facts.

V.

The issue which we must therefore determine is whether the widow is entitled to the lump sum remarriage benefit when there has been effected a third party recovery in excess of the remarriage benefit and the widow remarries within the credit period.

The General Assembly adopted the provisions for the lump sum remarriage benefit in 1974. (Laws 1974, pp. 853, 861). That provision did not exist prior to that time. Yardley, decided this date, notes that the legislative intent regarding this benefit was to encourage, or at least not discourage, widows from remarrying or delaying remarriage because of her monetary entitlement to benefits as a widow for the rest of her life. The General Assembly may well have had other reasons for the adoption of the benefit. Prior to the 1974 amendment, the employer’s liability was essentially limited to $22,500 payable to the total dependents (widow and minor children) plus certain expenses. Section 287.240, RSMo Supp. 1973, pp. 652-653. The interest of the employer in whether the widow remarried and thereby terminated his obligation to pay compensation was minor compared with the same interest under the greatly expanded open-ended liability to pay the widow a weekly sum for the rest of her life. From a practical standpoint, the remarriage payment was adopted as a legislatively imposed, arbitrary “settlement” of the future liability of the employer to the widow. In this way, the employer’s obligation to the widow could be terminated and by remarrying she would not be losing all of her remaining monetary entitlement.

In the instant case, the widow was entitled to receive $48 per week for the rest of her life. She was born on February 14, 1949, and was 26 years old at the time of her husband’s death on January 8, 1975. Even under the old mortality tables, 42 V.A.M.S. 801, she had a life expectancy of 43.21 years, according to the U.S. Total Population Table. During that expectancy, the employer would have paid over $107,000 to her at the rate of $48.00 per week had no third party recovery been had. Remarriage ends the obligation to pay death benefits to the widow. The employer was relieved of that liability upon remarriage.

The Labor and Industrial Relations Commission held that the remarriage payment was “an advancing of the weekly benefit amount due the widow.” This concept, however, has been rejected in Yardley. There the Commission considered the remarriage payment to be an advancement of periodic death benefits but this court rejected that conclusion, thus emphasizing the independent character of the remarriage payment and that the payment is not an “installment of compensation.”

Under § 287.150(2), ‘When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had . . for the wrongful death of the employee, subject to subsection 3, the employer shall receive or have credit for all sums paid or payable under this chapter to any one or all of the dependents of the deceased employee to the extent of the settlement or recovery for the wrongful death, . . .” (Emphasis added).

Subsection 3 provides that when a third-party recovery is made, the employer shall pay certain expenses and, among other things, provides that “any part of the recovery [obtained from the third party] paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation [due from the employer.]” (Emphasis added).

In Yardley, we considered the remarriage benefit to be separate and distinct from installment compensation benefits and held that the children’s receipt of their mother’s share would not be delayed for a two-year period but must be paid to the children immediately. Yardley considered the remarriage payment to be a matter separate and apart from ordinary compensation benefits, and that the remarriage payment is not an installment of compensation. Neither does it represent an advance payment of future installments of compensation. Thus, § 287.150(2) which by its terms is subject to § 287.150(3) does not require payments which are not installments of compensation to be credited against the third party recovery. Therefore, the remarriage payment, not being an installment of compensation, nor representative of future installments which the widow would be entitled to receive cannot be used as an offset against the third party recovery credit nor can the outstanding credit in the employer’s favor, because of the third party recovery, justify the nonpayment to the widow of the lump sum remarriage benefit required by § 287.240(4)(a). This section is an independent and separate section which provides that in the event of remarriage a lump sum payment “shall be paid to the widow or widower.”

There is nothing which precludes such payment in the event of a third party recovery. There is nothing in § 287.240(4)(a) which authorizes credit to be given. The statute does not say, as it could, that when a third party recovery is effected for the wrongful death of the employee and the widow[er] remarries within the credit period, the widow[er] shall not be entitled to a lump sum remarriage benefit.

We hold that under the facts and under the present statutes (1) the respondent Mrs. Ikerman is entitled to be paid a lump sum remarriage payment in an amount equal to the benefits due for a period of two years despite the fact that there was a third party recovery, and (2) the appellants are not entitled to a credit for the lump sum payment although the remarriage occurred during the credit period.

The circuit court did not err in reversing the Commission’s award and reinstating the referee’s modified award.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, REND-LEN and SEILER, JJ., and WELBORN, Special Judge, concur.

DONNELLY, J., dissents.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

      . Gary Koch, d/b/a Gary’s Highway Shell and Gary’s Broadway Shell.

      . American States Insurance Company.

      . Section 287.240, subsection 4, RSMo Supp. 1975: “. . . The following persons 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;
      “(a) A wife upon a husband legally liable for her support, and a husband mentally or physically incapacited from wage earning upon a wife; provided, that on 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.” (Emphasis added).

      . Compensation payments $1,280.00
      Funeral 800.00
      Hospital 203.60
      Ambulance 45.00
      $2,328.60
      The respondent repaid this amount to the appellants — employer-insurer out of the third party recovery.

      . The Missouri Association of Trial Attorneys filed an amicus brief contending that the net recovery should be $17,337.40 ($19,666.00 [sic] less $2,328.60) since the widow repaid the $2,328.60 to the employer-insurer. The parties themselves do not address this issue and to avoid greater confusion we shall assume the net recovery to be $19,666.67.

      . $19,666.67 divided by $64.00 per week equals 307.29 weeks.

      . At the referee’s hearing on January 15, Mrs. Followell admitted that she planned to marry Mr. Ikerman in the near future.

      . The Commission agreed with the referee’s modified order of February 6, 1976 in all other respects except that it provided that the death benefits due the minor children after December 4, 1980 should terminate at the time the child becomes eighteen years of age.

      . In their application to transfer, appellants state that the Industrial Commission held that the appellants were entitled to be credited for the lump sum payment of 104 weeks because . the remarriage occurred within the period in which the employer-insurer are entitled to a credit due to the third party recovery.”

      . “2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had either by judgment or settlement for the wrongful death of the employee, subject to subsection 3, the employer shall receive or have credit for all sums paid or payable under this chapter to any one or all of the dependents of the deceased employee to the extent of the settlement or recovery for the wrongful death, whether or not one or all of the dependents are entitled to share in the proceeds of the settlement or recovery and whether or not one or all of the dependents could have maintained the action or claim for wrongful death.”

      . As to this issue we decline to do so at this time. In Ruediger, we held that § 287.150(3) requires the following method of calculation: (1) the expenses of the third party litigation should be deducted from the third party recovery; (2) the balance should be apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party; (3) the amounts due each should be paid forthwith; (4) the amount paid the employee should be treated as an advance payment on account of any future installments of compensation; and (5) in a case such as presented here, the employee should be entitled to future compensation benefits in the event the amount paid him as an advance is exhausted under the provisions of the statute. The parties here have not at any stage of this proceeding argued or presented this issue. That issue has never been injected into this proceeding except by amicus. The question of the proportionate share of the expense of recovery is not a point in this case and neither party has appealed this issue nor is it in controversy. The only issue in this proceeding is whether the appellants are entitled to a credit of the lump sum remarriage benefit. As we stated in Rued-iger, we again urge the General Assembly to address itself to the problem.