author: GANT, Judge. PARK, Judge, VANCE, Judge,

text:
    TRANSPORT MOTOR EXPRESS, INC. Michigan Mutual Insurance Co. and/or Michigan Mutual Liability Co., Appellants, v. William F. FINN, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1977.
    As Modified Oct. 18, 1977.
    Discretionary Review Granted Dec. 7,1977.

      Larry L. Johnson, William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves, & Deindoerfer, Louisville, for appellants.
    Buel L. Cox, Louisville, John Riehl, Jr., Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellees.
   GANT, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court affirming an award of the Workmen’s Compensation Board to the appellee in the amount of $35.97 per week from the employer and $35.97 from the Special Fund. The facts are not in dispute, both appellants and appellees agreeing that the sole questions are questions of law and not fact. The agreed facts are as follows:

1. The appellee is 100% disabled at the present time.

2. Appellee had a prior disability which had been previously compensated by various methods to the extent of 50%.

3. 25% of appellee’s disability is attributable to his work-related injury.

4. 25% of the appellee’s disability is attributable to the arousal into further disabling reality of a pre-existing dormant condition.

5. Appellee’s average weekly wage at the time of the injury was $261.60.

6. The maximum award permitted, at the time of the injury, under KRS 342.-740(1) was $84.00.

The first argument of the appellants is concerned with the procedure followed by which the final award was reached. The Board entered its first opinion on October 18, 1976, awarding the appellee $71.94 per week, payable equally by the appellants and the Special Fund. Appellants filed a petition for reconsideration and the Board reduced the award to $42.00 per week, again divided equally, by its order dated November 15,1976. On November 22,1976, appel-lee filed a motion to set aside the November 15 order on the grounds of mistake in the manner of computation, which motion was sustained and the original award was restored. The appellants argue that KRS 342.281 requires the claimant to file a petition for reconsideration within 14 days after the award is made and that his failure to do so bars reconsideration by the Board. However, in the instant case, the claimant had no reason to ask the Board for reconsideration of its original award and it was only the subsequent award that was objectionable to him. His motion was filed within seven days of the order reducing the payment.

This Court is aware of the fact that some confusion exists in the recent Workmen’s Compensation cases and we will therefore present to the Workmen’s Compensation Board, the lower courts and to the practicing attorneys the formula to be used in computing percentages and compensation and apply this formula to the instant case. This formula shall pertain to all cases of permanent total disability and permanent partial disability.

PERCENTAGE COMPUTATIONS

STEP 1. The Workmen’s Compensation Board shall translate the percentage of functional disability into the percentage of occupational disability. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 128 (1977). The percentage of occupational disability attributable to the employer, non-compensable disability and the Special Fund shall be fixed by the Board in the following order and in the following manner (Young v. Fulkerson, Ky., 463 S.W.2d 118 [1971]; Yocom v. Spalding, Ky., 547 S.W.2d 442 [1977]):

(a) Determine the employer’s percentage of liability by affixing the percentage of disability attributable to his work-related injury alone. Young v. Young, Ky., 460 S.W.2d 832 (1970); Young v. Fulkerson, supra. In the instant case this was done and that percentage was fixed at 25%.

(b) Determine the percentage attributable to the non-compensable or non-compensated disability or disabilities. This computation is for the sole purpose of assistance in computing percentage attributable to the employer and the Special Fund. It is never used again in compensation computations set out herein. In the instant case, the appellants urged that KRS 342.120(4) requires that any prior disability, whether compensated or not, shall be excluded from consideration. With this we agree, but “excluded” does not mean “deducted from” the compensation. As this Court stated in Yo-com v. Reid, Ky.App., 24 Ky.L.Summ. 9 (June 17, 1977):

In no event shall the non-compensable disability be applied to reduce the allowable income benefits which a claimant may receive as long as those benefits do not exceed the maximum as set forth in KRS 342.740. The amount assignable to non-compensable disability is already excluded by the method of determination.

Additionally, KRS 342.120(4) is available only to reduce the liability of the Special Fund and not to reduce the liability of the employer.

In this case, the non-compensable percentage was fixed at 50%.

(c)Determine the percentage of liability of the Special Fund, if any, under KRS 342.120. This percentage shall be the percentage of disability remaining after deducting the portion attributable solely to the work-related injury and the non-com-pensable or non-compensated disability or disabilities. In other words, the sum of (a), (b), and (c) must equal the total percentage of the claimant’s disability as found by the Board. Young v. Young, supra. In the instant case, the Board fixed this percentage at 25%, and the total of the three percentages equalled 100%, the total percentage of claimant’s disability as found by the Board.

COMPENSATION COMPUTATIONS

STEP 2. Determine the greater of:

(a) Lost wages. Mills v. Parsley, Ky. App., 24 Ky.L.Summ. 7 (May 20, 1977); Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976); Bartley & Bartley Coal Co. v. Ratliff, Ky.App., 24 Ky.L.Summ. 8 (May 27, 1977); Liberty Engineering and Manufacturing Co. v. Granger, Ky.App., 548 S.W.2d 845 (1977); or

(b) 55% of the claimant’s average weekly wage as defined by KRS 342.140 and two and one-half per cent (2.5%) of his average weekly wage for each dependent as defined by KRS 342.075, up to a maximum of three. KRS 342.730(1). For claims filed after January 1,1977, this percentage shall be 66⅜%, irrespective of the number of dependents. The claimant here had no dependents and applying the 55% to his average weekly wage of $261.60 we arrive at the sum of $143.88.

STEP 3. Determine the weekly maximum income benefits as per KRS 342.-740(1). This is computed by taking 60% of the average weekly wage of the state as prescribed by KRS 342.143. In any event, this sum shall not exceed the average weekly wage of the injured employee.

It was stipulated herein that the weekly maximum income benefits at the time of this injury were $84.00.

STEP 4. EMPLOYER. Determine the compensation payable by the employer by multiplying the percentage attributable to him as found in Step 1(a) by the amount found under Step 2. C. E. Pennington Co., Inc. v. Winburn, Ky., 537 S.W.2d 167 (1976); Yocom v. Hopkins, Ky.App., 548 S.W.2d 151 (1977); Yocom v. Reid, Ky.App., 24 Ky.L. Summ. 9 (June 17,1977).

(a) If this product is equal to or greater than the maximum weekly benefits in Step 3 then the employer’s liability is fixed at the amount as computed in Step 3 and this is the total compensation to be paid to the claimant. In this event, the computations would cease here. KRS 342.740(1).

In the case before us, the Board properly applied this procedure and multiplied the 25% disability attributable to the employer times the $143.88 arrived at under Step 2(b) and affixed the employer’s liability at $35.97.

(b) SPECIAL FUND. If the employer’s liability as computed hereinabove is less than the amount as set forth in Step 3, then the maximum liability of the Special Fund shall be determined by multiplying Step 1(c) by Step 2. The Special Fund’s actual liability is then determined in the following manner:

(i) If the sum of the employer’s liability and the allowable Special Fund’s liability is less than Step 3, then the Special Fund’s liability is equal to the allowable Special Fund liability as computed above.

(ii) If the sum of the employer’s liability and the allowable Special Fund liability is greater than Step 3, then the amount payable by the Special Fund is the difference between the employer’s liability and Step 3, the maximum weekly income benefits.

In this case, the Board properly applied this formula and multiplied the 25% determined under Step 1(c) times the amount determined in Step 2(b) and arrived at the liability of the Special Fund in the amount of $35.97. The sum total of both the employer and the Special Fund was $71.94, being less than the maximum weekly income benefits as per KRS 342.740(1) and thus the allowable amount was payable by the Special Fund.

Had the claimant herein cross-appealed, he would have been entitled to lost wages as indicated in Step 2(a), as the stipulated fact that he was totally and permanently disabled establishes that his loss of wages was $261.60. This formula as herein set out would have imposed a liability on the employer of 25% of that amount, which would have been $65.40, and the liability of the Special Fund would have been $18.60, as computed by Step 4(b)(ii), above. See KRS 342.620(9); KRS 342.730(l)(b). Also, the Special Fund did not raise this issue on appeal.

STEP 5. PREVIOUS AWARD, SETTLEMENT OR VOLUNTARY PAYMENT. Where a claimant is receiving compensation from a previous award, including schedule losses under KRS 342.730(l)(c), settlement or voluntary payments the compensation shall be computed as follows:

(a) Deduct the amount of the weekly payments for the prior disability from the amount determined in Step 3. Osborne Mining Corp. v. Blackburn, Ky., 397 S.W.2d 144 (1965); Cabe v. Skeens, Ky., 422 S.W.2d 884 (1967). The difference shall then constitute the new weekly maximum income benefits to be used in the computations in Step 4 in lieu of the amount originally determined in Step 3.

(b) When the amounts due from the previous award, settlement or voluntary payments are exhausted, the liability of the employer and the Special Fund shall be determined in Step 4 by using the original weekly maximum income benefits determined in Step 3. See 2 Larson’s Workmen’s Compensation Law, 59.41 at 10—341; 59.42 at 10-345.

A claimant is deemed to be receiving compensation whether it is from periodic payments or from a previous lump sum payment calculated over a period of time which overlaps with the period of time of compensation now under consideration. If the previous compensation was in a lump sum payment, the amount of the previous compensation for purposes of these computations is the amount and period of time of compensation as found by the Board and not the lump sum award actually received by the claimant distributed over the time of the compensation. General Refractories Co. v. Herron, Ky.App., 566 S.W.2d 433 (1977).

In the instant case, the evidence disclosed that the claimant had received some payment for a dislocation of the right shoulder in the 1960’s, a disability to his hand for which he had received further payments and that both of these payments had ceased prior to this injury so that Step 5 was not applicable herein. Additionally, the claimant had received a disabling injury at the hands of a third party and, although he had made claims against both the third party and his employer under his Workmen’s Compensation, the recovery was had from the third party and no disability payments had been made under Workmen’s Compensation.

It is the opinion of this Court that the formula above set out was properly followed by the Workmen’s Compensation Board and the judgment of the lower court is affirmed.

To avoid confusion and to enable preparation for the making of the determinations required under this opinion, this opinion will have prospective application only, and shall not constitute grounds for review of previous awards as provided in KRS 342.-125.

All concur.

PARK, J., concurs in the result by separate opinion, in which MARTIN, C. J., and WILHOIT, J., join.

VANCE, J., also concurs by separate opinion.

PARK, Judge,

concurring, with whom MARTIN, C. J., and WILHOIT, J., join, concurring in the result.

I agree with the decision in this case. I disagree only with that portion of the opinion which discusses “lost wages. Step 2(a) dealing with “lost wages” has no part in the computation of income benefits, and the claimant would not have been entitled to 100% of lost wages had he cross-appealed.

Lost wages are important for the purpose of determining whether there is disability and, if so, the degree of disability. However, 100% of lost wages should not be awarded as income benefits under the workmen’s compensation act. To award 100% of lost wages as income benefits violates every accepted theory of American workmen’s compensation law. Furthermore, an award of 100% of lost wages is not justified by the language of the present Kentucky Workmen’s Compensation Act.

One of the most important objectives of workmen’s compensation laws is the replacement of wages lost by employees disabled by job-related injury or sickness. Compendium on Workmen’s Compensation (National Commission on State Workmen’s Compensation Laws, 1973) pg. 24. Workmen’s compensation is essentially a form of income insurance. Larson, “Basic Concepts & Objectives of Workmen’s Compensation,” 1 Supplemental Studies for the National Commission on State Workmen’s Compensation Laws pgs. 31-34 (1973). If workmen’s compensation is considered to be a form of income insurance protecting employees against wage loss, it might appear proper to award 100% of lost wages as a form of income benefits. However, the workmen’s compensation law of no other jurisdiction awards an injured employee 100% of his lost wages as a form of income benefits. There are two fundamental reasons why income benefits are based upon a percentage of the employee’s lost wages.

First, rehabilitation and return to productive employment is also one of the most important objectives of workmen’s compensation. Compendium on Workmen’s Compensation, op. cit., pg. 25. If an employee receives 100% of his wage loss there is no incentive for him to return to work. In order to provide an incentive for the employee to return to work and a disincentive to remain unemployed, workmen’s compensation laws customarily provide income benefits that are less than 100% of the employee’s wages lost. Berkowitz, “Workmen’s Compensation Income Benefits: Their Adequacy and Equity,” 1 Supplemental Studies for the National Commission on State Workmen’s Compensation Laws, pgs. 191 & 196.

Second, if an employee receives 100% of lost wages in the form of workmen’s compensation income benefits, he will have more spendable income than he received while employed. Income benefits under workmen’s compensation laws are not subject to income taxation. 26 U.S.C. § 104(a)(1). This is particularly important for high wage employees. However, even low wage earners avoid the necessity of social security deductions. Consequently, workmen’s compensation laws do not pay income benefits equal to 100% of pre-tax lost wages. Berkowitz, op. eit., pg. 196.

In 1963 and 1965, the Council of State Governments published a suggested “Workmen’s Compensation and Rehabilitation Law” which is often referred to as the Model Act. Under Section 15 of the Model Act, income benefits for total disability are based upon 55% of the employee’s average weekly wage plus 2V2% of his average weekly wage for each dependent up to a maximum of five. In the case of partial disability, the employee’s income benefits are 55% of his decrease in wage earning capacity plus 2½% of his average weekly wage for each dependent up to a maximum of five. The Model Act also provided an alternative formula using 662/⅞% with no addition for dependents. In 1972, the National Commission on State Workmen’s Compensation Laws recommended that benefits for total disability be at least 66⅜% of the employee’s gross weekly wage. After a transition period, the commission recommended that benefits for total disability be at least 80% of the employee’s spendable weekly earnings. The Report of the National Commission on State Workmen’s Compensation Law (1972), Recommendations R 3.12 and R 3.13. The Council of State Governments adopted the initial recommendation of the National Commission. Under suggested legislation proposed in 1973 by the Council of State Governments, income benefits for total disability would be 66¾% of the employee’s average weekly wage. Workmen’s Compensation: A Challenge to the States, A Report of Advisory Committee on Workmen’s Compensation Laws of the Council of State Governments (1973), ch. 3. Neither the Model Act nor the Report of the National Commission recommends that an employee receive income benefits equal to 100% of wages lost. No state pays 100% of an employee’s wages for permanent disability benefits. 4 Larson's Workmen's Compensation Law (1973), Appendix B, Table 8. I do not believe that the Kentucky Workmen’s Compensation Act can, or should, be construed to authorize income benefits equal to 100% of an employee’s lost wages.

The basic income benefits payable under the act are set forth in KRS 342.730(l)(a) and (b). Under the 1972 amendment, the employee receives income benefits for total disability equal to 55% of his average weekly wage during disability and 2½% of his average weekly wage for each dependent up to a maximum of three. This provision clearly is based upon Section 15 of the Model Act as proposed in 1963. In 1976, KRS 342.730(l)(a) was amended to provide for total disability income benefits equal to 66⅜% of the employee’s average weekly wage without any addition for dependents. 1976 Ky. Special Session Acts, ch. 26, § 1. The 1976 amendments follow the recommendations in the Report of the National Commission and the 1973 suggested legislation of the Council of State Governments. There is absolutely no language in KRS 342.730(l)(a) as enacted in 1972 and amended in 1976 which would support the conclusion that an employee is entitled to 100% of his wages lost in the case of total disability.

Nevertheless, this court in Mills v. Parsley, Ky.App., 24 Ky.L.Summ. 7 at 12 (May 20, 1977) held that a totally disabled employee was entitled to receive 100% of his average weekly wage subject only to the limitations of KRS 342.740(1) which provides that the maximum weekly income benefit shall not exceed 60% of the state average weekly wage. This decision was not based upon any provision of KRS 342.730, the only section of the law specifically relating to income benefits. The decision was based solely upon certain language contained within the definition of the term “disability” set forth in KRS 342.620(9). Within the definition of disability, the statute contains the following provision:

A person who has lost wages by reason of his disability, and who is otherwise eligible for compensation, is entitled to compensation during the compensable period in an amount equal to the wages lost, so long as this amount does not exceed the applicable maximum compensation.

In the Parsley case, the court purported to give recognition to the rule of statutory construction that, “ ‘where two statutes seemingly conflict, courts must harmonize them and give them such construction as will give effect to each other if possible.’ ” Unfortunately, the construction given the workmen’s compensation laws in the Parsley case renders the income benefit statute, KRS 342.730(l)(a), totally meaningless. Under the definition of disability contained in KRS 342.620(9), for the purposes of determining “wages lost” it is assumed that “wage earning capacity prior to injury is the average weekly wage as calculated under KRS 342.140.” If the Parsley decision is correct, a totally disabled employee will always be entitled to 100% of his average weekly wage, subject only to the limitation imposed by KRS 342.740(1). If the totally disabled employee is entitled to 100% of his average weekly wage by virtue of the definition of disability contained in KRS 342.-620(9), the legislature did a stupid and useless act at the 1976 special session when it amended the income benefits statute to provide that a totally disabled employee should receive 66⅜% of his average weekly wage, subject to the limitations of KRS 342.740(1).

The decision in Mills v. Parsley, supra, does not harmonize KRS 342.620(9) and KRS 342.730(1)(a). The two statutes can be harmonized only if the definition statute, KRS 342.620(9) is utilized for the purpose of determining the degree of disability. After the degree of disability is determined, the amount of income benefits can be determined under KRS 342.730(1)(a). If the language in the statute relied on by the court in the Parsley case was intended to measure the amount of income benefits, then it should appear in the section of the statutes dealing with income benefits, rather than the section of the statutes defining disability. If the two provisions of the act are in irreconcilable conflict, then I would apply the rule adopted in Gish v. Shaver, 140 Ky. 647, 131 S.W. 515, 516 (1910):

“Where there is an irreconcilable conflict between different parts of the same act, the last in order of position must control, or the clause which is directed specially to the matter in preference to others mentioning it incidentally only.”

KRS 342.620(9) was enacted as Section 2 of the 1972 act; KRS 342.730(l)(a) was enacted as Section 14 of the 1972 act. (1972 Ky.Acts, ch. 78.) KRS 342.730(l)(a) deals directly with income benefits for total disability; KRS 342.620(9) deals with income benefits incidentally to the definition of “disability.” KRS 342.730(l)(a) follows the Model Act and, as amended, follows the recommendations of the National Commission. On the other hand, the language from the disability definition would introduce a revolutionary concept to the American law of workmen’s compensation. For those reasons, I believe the decision Mills v. Parsley, supra was wrong. Step 2(a) has no part in the computation formula set forth in the majority opinion.

To award 100% of lost wages would defeat one of the fundamental purposes of the Workmen’s Compensation Act, rehabilitation. See KRS 342.710(1). As the award will not be subject to taxation, the employee would be better off from the viewpoint of spendable income than he was before the injury.

This case and Mills v. Parsley, supra, both involve total disability. Nevertheless, the compensation computation formula set forth in the majority opinion is applicable to cases of partial disability. A related but slightly different question is presented with respect to awarding 100% of lost wages as income benefits for partial disability. The income benefits statute, KRS 342.730(1)(b), originally provided that the employee was to be paid 55% of his average weekly earnings, plus 2½% of his average weekly wage for each dependent up to a maximum of three, multiplied by the percentage of his work related disability. This provision was clearly based on Section 15 of the Model Act as originally proposed in 1963. As amended at the 1976 special session, the statute provides that the partially disabled employee shall be paid 66⅜% of his average weekly wage multiplied by the percentage of his work related disability, without any addition for dependents. This amendment also brings the Kentucky statute into conformity with the recommendations of the National Commission and the most recent proposed legislation by the Council of State Governments.

However, the income benefits statute also provides that benefits for partial disability shall be “based on lost wages or body functional disability benefits, whichever is greater.” In Liberty Engineering & Mfg. Co. v. Granger, Ky.App., 548 S.W.2d 845, 846 (1977), this court stated:

It is our conclusion that “lost wages” as used in KRS 342.730(l)(b), refers to either a present loss of wages or probable future loss of wages as a result of shortening of work life or reduction of future work opportunities caused by an injury of appreciable proportions.

The income benefits statute provides that benefits shall be “based” on lost wages or body functional disability. This does not mean that the benefits shall equal 100% of lost wages. It means no more than that lost wages may be used to calculate the degree of disability. Even if there is no present wage loss, an award of benefits can be made for future impairment of earning capacity. This construction of the income benefit statute is in harmony with the landmark decision in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968).

It is true that the definition section, KRS 342.620(9), provides that an employee entitled to partial disability benefits “shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.” For the reasons set forth above with respect to total disability benefits, I do not believe that this additional language in the definition section was intended to override the specific language of the income benefits section. Nevertheless, I must acknowledge that a contrary construction was adopted by the Supreme Court in Apache Coal Company v. Fuller, Ky., 541 S.W.2d 933 (1976). However, the language in the Apache decision was dictum inasmuch as the employee in that case had no present wage loss. I also concede that I participated in the decision in Bartley & Bartley Coal Company v. Ratliff, Ky.App., 24 Ky.L.Summ. 8 at 10 (May 27, 1977), in which this court approved the approach taken in the Apache case. However, the reference to Apache in the Bartley case was also dictum as the employee was entitled to the maximum weekly benefits allowed when income benefits were calculated under KRS 342.730(l)(a) and 342.120. Furthermore, I believe the error of this construction of the workmen’s compensation law can be demonstrated by an example.

Assume an employee with average weekly wages of $420.00. . As a result of a work related injury, the employee is unable to perform his regular work, but he is able to secure regular employment at $336.00 per week. He has lost wages of $ 84.00 per week. If the definition section (rather than the income benefit section) is used to determine income benefits, the employee will receive annual income benefits of $4,368.00 ($84 X 52 weeks). This sum will be tax free. His gross income will be the same as before the injury, but his spendable income will be greater. There will be no incentive for rehabilitation. There will be no reason for the employee to attempt to return to his old work. To return to his old job will only result in his paying income taxes on the amount which he is receiving tax free under the workmen’s compensation law. I do not believe that such a result was intended by the legislature.

For the foregoing reasons, I cannot agree with the portion of the majority opinion which would provide income benefits equal to 100% of lost wages. By this concurring opinion, I hope that the need for reviewing this area of the workmen’s compensation law can be demonstrated to the Supreme Court and that the problem will be considered by the legislature.

VANCE, Judge,

concurring.

I concur in the result reached in this case. I fully agree with the concurring opinion of Judge Park that lost wages are used only to determine the percentage of occupational disability.

I do not agree with the conclusion of the majority expressed in step 1(b) that prior disability is never used except to determine the percentage of disability attributable to the employer and to the special fund.

It seems plain to me that the special fund is liable only for that percentage of disability by which the combined effects of injury and aggravation exceed the disability attributable to the injury alone. Disability attributable to the prior injury is excluded. KRS 342.120(4).

The result reached in the majority opinion is correct only because of the holding in C.E. Pennington Co., Inc. v. Winbum, Ky., 537 S.W.2d 167 (1976) that permits a partially disabled worker to receive the maximum compensation benefits in some cases. Except for that decision, I would limit the award in this case to $42.00 per week. Yocom v. Layne, Ky., 553 S.W.2d 52 (1977) recognizes that there should be deducted from the award a sum equal to the percentage of disability attributable to a prior disability.


source: Caselaw Access Project

author: BARDGETT, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William Ronald BASHAM, Appellant.
    No. 60435.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.
    Walter D. McQuie, Jr., McQuie & Deiter, Montgomery, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

The question which caused this case to be transferred by the Missouri Court of Appeals, St. Louis district, after opinion, to this court is whether the double jeopardy provisions of United States' Constitution, Fifth Amendment, and Missouri Constitution, art. 1, sec. 19, prevent the retrial of a defendant where an appellate court reverses the initial conviction solely for lack of evidence to support the conviction.

Defendant was charged with perpetrating a confidence game in violation of sec. 561.450, RSMo 1969. A jury found him guilty and set punishment at six months in the county jail and a $450 fine. The trial court overruled defendant’s motions for judgment of acquittal and for a new trial. On appeal, the court of appeals, St. Louis district, reversed because the evidence adduced at trial was insufficient to support a conviction. The court of appeals then remanded the case for a new trial because the information listed three witnesses who were not called by the state and therefore it appeared reasonably possible for the state to adduce additional evidence sufficient to sustain a conviction at another trial. Judge Gerald Smith concurred “with the reservations set forth in my concurring opinion in State v. Miller, 536 S.W.2d 524 (Mo.App. 1976).” The court of appeals denied appellant’s motion for rehearing but sustained his motion to transfer to this court. The point asserted in appellant’s motion for rehearing or transfer was that the order of remand for new trial violated his rights against double jeopardy under the Fifth Amendment of the U.S. Constitution, and art. 1, sec. 19, Mo. Constitution, because the court had determined that the evidence was not sufficient to support a conviction.

In the court of appeals and in this court the state maintained that the evidence was sufficient to support the conviction. All of the evidence offered by the state was admitted by the trial court. The court of appeals held the evidence insufficient. We agree and adopt that part of the court of appeals opinion concerning that issue without the use of quotes.

The facts are not complex. Sometime before October 18, 1974, defendant went three or four times to the home of Mr. and Mrs. Flavel S. Page in Mineóla, Missouri, asking about painting some barns. Defendant gave Mr. Page a price of $750 to supply materials and paint the barns. Defendant wrote out on a piece of paper, which he gave to the Pages, the following:

Bill Basham
Phone 682-5701
R 1 Centrallia [sic] $750.00 to be paid to me for job

Mrs. Page added to the bottom of the note, “this will be for both barns paint and labor.” On October 18, 1974, defendant received a check written by Mrs. Page for $400 to buy paint. When defendant cashed it the same day he presented a driver’s license for identification. The bank teller wrote on the back of the check the driver’s license number and address appearing on the license as “RFD 3 Box 169 Troy Mo.” The agreement and subsequent events were described by Mr. Page in these words:

“Mr. Basham told me if he would paint the barns and it wasn’t satisfactory, I would [not?] have to pay him anything ’till the job was done. That was just before this contract and a few days later he came back and he said, ‘I’ll start painting your barns but I don’t have the money to buy the paint, if you’ll give it to me.’ He first came and asked my wife — I had come to Montgomery — and she said, T will not give you a check, or anyone else, without my husband’s o.k.’, so he went down on Old 40 and sat there and waited ’till I come up and then he said for me to give him a check to buy the paint so he could start the painting, and I gave him a check on the 18th, which I believe was a Thursday or Friday — I believe it was Friday. He went and cashed the check and the next morning he came down with the paint— dressed up. He had no ladders, no brushes or nothing, and I was getting ready to go to St. Louis when he brought the paint. He said, ‘I’ll be back Monday morning [October 21, 1974] with the brushes and paint (sic) to start painting’, and about 10:30 or such a matter he had not showed up and I got on the phone and called him — the number he give me to call. Some lady answered the phone — I couldn’t say who it was — and I asked if he was there.”

Defendant was present and when he spoke to Mr. Page on the telephone defendant said he would start painting within an hour. He did not appear as promised and Mr. Page did not see or hear from him again. Mr. Page “let it go for a while and then [he] got out a warrant for his arrest.” Mr. Page could not recall the exact date that he got out the warrant but estimated it to be four or five weeks after the check was given to defendant. Mr. Page acknowledged that he only called defendant one time between the time the check was given and the warrant was issued. He also stated that he tried to call defendant several times but never received an answer. When asked whether he heard recordings that the defendant’s telephone was disconnected, Mr. Page stated, “It — the phone would ring but I couldn’t tell — you know sometimes it will ring if it is disconnected.’’ The paint which defendant brought to the Page place on Saturday October 19, 1974, consisted of ten gallons valued at about $50. Defendant also brought a little box of nails. It was Mr. Page’s understanding that defendant was to start and complete the job right away, meaning he was to start painting Monday, October 21, 1974. Defendant did not present any evidence.

In considering whether a submissible case was made, we “view the evidence and inferences to be drawn therefrom in a light most favorable to the state and reject all evidence to the contrary. State v. Gamache, 519 S.W.2d 34, 39[1] (Mo.App.1975). If substantial evidence supports the finding of the jury, it will not be disturbed on appeal., State v. Gamache, supra.State v. Scruggs, 551 S.W,2d 306, 308[5] (Mo.App. 1977). “[I]ntent to cheat and defraud may be shown by circumstances from which such intent may be inferred.” State v. Schmidt, 530 S.W .2d 424,427[5] (Mo.App.1975). “But before a jury is permitted to find a verdict of guilty where fraudulent intent is an element of the crime there must be found in connection with the act done attending circumstances which bespeak fraud — a situation where common experience finds a reliable correlation between the act and a corresponding intent. If such a relation is absent, or if the circumstances proved are consistent with innocence or raise only a suspicion or probability of guilt, a conviction cannot be allowed to stand.” State v. Brookshire, 329 S.W.2d 252, 256[5] (Mo.App. 1959) (citing 23 C.J.S. Criminal Law sec. 919, p. 190).

The state claims the following “facts” show an intent to cheat and defraud: defendant “immediately” cashed the check. Defendant used only a small fraction of the proceeds of the check to buy an amount of paint which was obviously insufficient to complete the job. Defendant never brought any brushes or ladders or equipment to the jobsite. Defendant falsely represented on Monday, October 21, 1974, that he would be down in an hour to start painting. Defendant “effectively disappeared” after Monday, October 21, 1974.

But there was no evidence of how much paint defendant purchased or how much would be necessary to paint the barns. We only know that defendant brought ten gallons of paint to the jobsite on Saturday, October 19, 1974. And evidence of defendant’s “disappearance” consists of Mr. Page not being able to reach defendant by telephone, even though Mr. Page did reach him once at the telephone number given by defendant. The facts relied on by the state do not singly or collectively indicate that defendant had the intent to cheat and defraud at the time he promised to paint the barns or when he received the check for $400. Even considering defendant’s behavior after he received the check, which evidence the state claims is relevant and admissible to prove an earlier intent, there is insufficient evidence to sustain this conviction. The evidence merely raises a suspicion of guilt. Other cases finding sufficient evidence for a conviction under sec. 561.450 involve situations where there was more evidence from which the jury could infer an intent to cheat and defraud. E. g., State v. Crow, 487 S.W.2d 461 (Mo.1972) (money obtained for unnecessary or unperformed house and yard work); State v. Fields, 366 S.W.2d 462 (Mo.1963) (attempt to obtain money for worthless termite and beetle eradication work); State v. Smith, 324 S.W.2d 702 (Mo.1959) (defendant stated he had probably cheated old lady when he overcharged her for materials on electrical work she had authorized after defendant told her the wiring was unsafe); State v. Weber, 298 S.W.2d 403 (Mo.1957) (evidence that four other people had been cheated by similar scheme to obtain money for a down payment of rent on apartment which was never rented); State v. Schmidt, 530 S.W.2d 424 (Mo.App.1975) (money obtained for cattle which defendant falsely stated he had already purchased); State v. Barnes, 517 S.W.2d 155 (Mo.App.1974) (money obtained by false statement that defendant needed money to close deal to buy a nonexistent motel). See generally, 38 Mo.L.Rev. 432, 437 (1973).

We have concluded that the evidence in this case is insufficient to show an intent to cheat and defraud and that the trial court’s judgment should be reversed.

The court of appeals then remanded the cause for a new trial for the reason stated at the outset of this opinion.

In Burks v. United States,—U.S.—, 98 S.Ct. 2141, 57 L.Ed.2d 1 [decided 6/14/78] the court stated the issue as follows: “We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.” That is precisely the issue in this case.

The court in Burks held that double jeopardy provisions of the U. S. Constitution, Fifth Amendment, preclude the retrial of a defendant where the initial conviction is reversed solely for lack of sufficient evidence to sustain the jury’s verdict.

This holding is binding upon this court and requires that the judgment of the circuit court be reversed and defendant discharged.

The United States Supreme Court’s opinion is unanimous and deals solely with this singular issue. No useful purpose would be served by paraphrasing it and it needs no interpretation in order that its application to our case be understood. The opinion traces the judicial history of the issue and deals exhaustively with the principal cases pertaining to it.

The judgment of the circuit court is reversed and the defendant is discharged.

MORGAN, C. J., and DONNELLY, RENDLEN and SEILER, JJ., HOUSER and STOCKARD, Special Judges, concur.

FINCH, J., not sitting.

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

      . “I concur in the principal opinion because I believe it to be in accord with the law of this State as enunciated by the Supreme Court. I express here my grave reservations that an appellate court which finds insufficient evidence to make a criminal case has authority to remand for new trial to give the State an opportunity to present additional evidence. To me that is a violation of the rule against double jeopardy. Our decision here, in essence, holds that the trial court erred in not directing a verdict of acquittal. If the trial court had done what we say it should have done, double jeopardy would apply. If the State is unable to present sufficient evidence to establish defendant’s guilt, it should not have a second chance to do so whether the insufficiency is determined by the jury, trial judge, or appellate court. Obviously a different situation pertains where the reversal is upon the basis of error during the trial of the case. However, as the majority opinion holds, the position stated in this concurrence is contrary to the decisions of the Supreme Court of this State, so I must reluctantly concur in the disposition made.”

      . Because an offense under sec. 561.450 is complete when the accused (with the requisite intent) obtains the victim’s property, State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 206[17] (banc 1954); State v. Weiler, 338 S.W.2d 878, 880[2] (Mo.1960), the state must normally prove that defendant had the intent to cheat and defraud at the time he made the false representation or representations and the prosecuting witness parted with his property. See, State v. McWilliams, 331 S.W.2d 610, 612-13[4] (Mo.1960); State v. Richardson, 228 S.W. 789, 792-93[3] (Mo.1921).

      . In support of this contention the state cites State v. Schmidt, 530 S.W.2d 424, 427[5] (Mo. App.1975) where the court stated that “intent to cheat and defraud may be shown by circumstances from which such intent may be inferred,” and where some of the events reported in the case occurred after the false representations were made. See also, State v. Richardson, 228 S.W. 789, 792-93[3] (Mo.1921).


author: DONNELLY, Judge.

text:
    ELLSWORTH FREIGHT LINES, INC., et al., Respondents, v. MISSOURI HIGHWAY RECIPROCITY COMMISSION et al., Appellants.
    No. 59981.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.

      John D. Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellants.
    Howard M. Downs, Petty, Andrews, Tufts & Jackson, San Francisco, Cal., John W. Inglish, Jefferson City, for respondents.
   DONNELLY, Judge.

On October 26, 1970, eight Iowa based trucking companies and two Missouri based trucking companies, on behalf of themselves and all others similarly situated, filed a lawsuit in the Circuit Court of Cole County against the Missouri Highway Reciprocity Commission, its individual members, the State Treasurer, and the Director of the Division of Budget and Comptroller. This petition set forth four counts: Count I sought a declaratory judgment that certain practices, rules and regulations of the Missouri Highway Reciprocity Commission concerning the collection of motor vehicle registration fees were unconstitutional; Count II sought injunctive relief against those practices; Count III sought recovery of registration fees allegedly collected illegally by the Commission since 1960, along with interest; and Count IV requested mandamus against the Director of Revenue, the Treasurer and the Comptroller for payment of the alleged excessive registration fees.

Three of the plaintiffs, Ellsworth Freight Lines, Inc., Hirsehbach Motor Lines, Inc., and Kroblin Refrigerated Xpress, Inc., along with two other trucking firms, Bruce Motor Freight, Inc., and Brady Motor Frate, Inc., filed claims for refund with the Director of Revenue in late 1969 for motor vehicle registration fees allegedly collected in violation of the Vehicle Registration Pro-ration and Reciprocity Agreement (Uniform Compact) to which the State was a party. The hearing on the applications for refund was held before the Director of Revenue on June 25, 1970. Brady and Bruce appealed the adverse decisions from the Director of Revenue to the State Tax Commission and ultimately to this Court, where it was held that the formula used by the Missouri Highway Reciprocity Commission in determining registration fees had been improper but that the two-year statute of limitations contained in § 136.035, RSMo 1969, was applicable. State ex rel. Brady Motorfrate, Inc., v. State Tax Commission, 517 S.W.2d 133 (Mo.1974).

During the course of the action below, the Director of Revenue denied the claims of plaintiffs Ellsworth, Hirschbach and Kroblin, who filed a petition for writ of review of the Director’s decision in the Circuit Court of Cole County and also filed an application for review of the Director’s decision with the State Tax Commission. To date, no further action has taken place in the Tax Commission, or in the Circuit Court of Cole County on the petition for a writ of review.

Defendants filed a motion to dismiss the action below alleging, among other things, that the circuit court lacked jurisdiction over the subject matter because the petition asserted a claim for money against the State to which the State had not consented, that the plaintiffs had not exhausted the administrative remedies available for recovery of taxes allegedly collected illegally, and that the petition constituted an improper attempt at a class action. The lower court overruled the motion, and allowed the action to proceed as a class action.

On December 12, 1975, the final hearing was held and a stipulation of facts was agreed to. This stipulation stated that plaintiffs’ request for an injunction was now moot because the State had ceased certain practices complained of and an amendment to the Uniform Compact in 1972 by the State now allowed the Commission to calculate registration fees by utilizing the several formulas complained of by plaintiffs. For these reasons, plaintiffs indicated they were only seeking recovery of registration fees through the license year 1972. No preliminary writ of mandamus was issued by the trial court, so Count IV was not in issue.

The lower court entered judgment for the plaintiffs, concluding that the class action was proper, and that the refund of motor vehicle fees was not subject to the requirements of § 136.035, RSMo 1969, or any concept of sovereign immunity. .

Defendants have appealed from the trial court’s ruling, alleging that this action was an improper means of securing a refund of motor vehicle fees and that plaintiffs failed to exhaust their administrative remedies. Plaintiffs contend that they were entitled to sue in the trial court for a refund without exhausting administrative remedies because their basis for a refund is alleged violations of federal rights.

Section 136.035, RSMo 1969, provides:
“1. The director of revenue from funds appropriated, shall refund any overpayment of erroneous payment of any tax which the state is authorized to collect. The general assembly shall appropriate and set aside funds sufficient for the use of the director of revenue to make refunds authorized by this section or by final judgment of court.
“2. The director of revenue shall refund any overpayment or erroneous payment of any tax on intangible personal property and the amount refunded shall be charged against the next apportionment to the political subdivision which was the residence or situs of the taxpayer at the time the tax was paid.
“3. No refund shall be made by the director of revenue unless a claim for refund has been filed with him within two years from the date of payment. Every claim must be in writing under oath and must state the specific grounds upon which the claim is founded.”
Section 138.430, RSMo 1969, provides:
“1. Any person, firm or corporation shall have the right to appeal to the state tax commission from any finding, order, decision, assessment or additional assessment made by the director of revenue, or by the state collector of revenue, under such rules and regulations as said commission shall prescribe. The state tax commission shall have authority to affirm, modify or reverse any such finding, order, decision, assessment or additional assessment which is found to be unlawful, unfair, improper, arbitrary or capricious.”

The State Tax Commission’s decision is judicially reviewable under Supreme Court Rules 100.03 to 100.07, inclusive, by means of a writ of review. Gas Service Co. v. M. E. Morris, 353 S.W.2d 645 (Mo.1962).

Plaintiffs in this cause, after having filed claims for refunds which were denied, chose not to pursue their administrative remedies, but instead to seek a refund by means of a declaratory judgment action and suit for recovery of taxes paid. This means of recovering taxes paid is not provided for by statute.

In a suit against the State for recovery of taxes, administrative procedures statutorily provided for are the exclusive means of recovery. In Gas Service Co. v. M. E. Morris, supra, at 655, this Court said:

“ . . . The legislature here provided for the taxpayer a procedure to recover a tax illegally collected and to that extent the state consented to be sued. Rogers v. Holmes, 214 Ore. 687, 332 P.2d 608, 611(1, 2). When a state consents to be sued, it may be proceeded against only in the manner and to the extent provided by the statute; and the state may prescribe the procedure to be followed and such other terms and conditions as it sees fit. State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, 359; Kleban v. Morris, supra [363 Mo. 7], 247 S.W.2d [832], 840; American Steel & Wire Co. of New Jersey v. State, 49 Wash.2d 419, 302 P.2d 207, 210(6, 7); Land Holding Corp. v. Board of Finance & Revenue, 388 Pa. 61, 130 A.2d 700, 703(1-3); Executive Air Service v. Division of Fisheries & Game, [342] Mass. [356], 173 N.E.2d 614, 615(1, 2). Thus, if as in the present instance the only method and procedure provided for the recovery of illegally collected taxes was through the media of administrative agencies and the judicial review of their decisions, the state’s consent to be sued was conditional upon the pursuance of those procedures as the taxpayers’ exclusive remedy. Great American Ins. Co. v. Gold, 254 N.C. 168,118 S.E.2d 792, 795(2); Kleban v. Morris, supra, 247 S.W.2d 840.”

The exclusivity of administrative remedies was reaffirmed by this Court in State ex rel. Brady Motorfrate, Inc. v. State Tax Commission supra, at 138:

“The statutes creating the highway reciprocity commission and giving it certain powers and responsibilities do not expressly or by implication abrogate or repeal the preexisting statutory procedures for refund of overpaid taxes Insofar as tax refunds are concerned, the diminution of sovereignty implicit in the enactment of § 301.277, supra enures to the benefit of these motor carriers only to the extent that they comply with the procedural requirements of Missouri’s tax refund statutes.”

The propriety of a state’s requiring exhaustion of administrative remedies before the invalidity of a tax may be asserted in a judicial tribunal, even where constitutional claims are raised, has been recognized by the United States Supreme Court. First National Bank of Greeley v. Board of County Commissioners of the County of Weld, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1924).

Plaintiffs assert that "the State of Missouri may not qualify or condition federal rights by local rules of practice including Chapter 136, RSMo 1969.” They argue from such assertion that they may not be relegated to § 136.035, RSMo 1969, as the exclusive remedy available to them for the recovery of taxes. We recognize that “the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143 (1923). However, we do not believe that plaintiffs’ claims are defeated by the requirement that they be pursued through use of the remedy given by § 136.-035. Plaintiffs would have us hold that their assertion of “federal rights” entitles them to proceed, at their option, under the Missouri Declaratory Judgments Act and for damages rather than under § 136.035. We decline to do so. Plaintiffs must proceed under § 136.035.

We do note that unreasonable delay on the part of the State Tax Commission in making a decision on plaintiffs’ refund requests may be grounds for an order of the Circuit Court either compelling action by the State Tax Commission or removing the case to the court for decision. Rule 100.03.

The judgment of the Circuit Court is reversed and the cause is remanded with directions to dismiss the petition filed by plaintiffs without prejudice to the right to proceed further under §§ 136.035 and 138.-430 and Rules 100.03 to 100.07, inclusive.

MORGAN, C. J., BARDGETT, FINCH, RENDLEN and SEILER, JJ., and GUNN, Special Judge, concur.

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


author: RENDLEN, Judge. BARDGETT, Judge,

text:
    Mary E. CRANE and Nathan Douglas Crane, by his next friend, Mary E. Crane, Appellants, Aetna Casualty & Surety Company, Intervenor, v. Hobert Fred RIEHN, Macke’s Farm Service, Larry McGowan, Respondents.
    No. 59686.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.

      John Reid, II, Schnapp, Graham & Reid, Fredericktown, for appellants.
    David G. Beeson, Albert C. Lowes, Buer-kle, Buerkle & Lowes, Jackson, Donald P. Thomasson and Paul V. Gilbert, Jackson, Thomasson, Dickerson & Gilbert, Cape Gir-ardeau, for respondents.
   RENDLEN, Judge.

Larry Edward Crane, fatally injured in a highway accident on September 15, 1969, was survived by his parents, whom he did not support, and his pregnant wife, the plaintiff, Mary Crane. On April 27, 1970, almost seven and one-half months following the accident, Mary Crane gave birth to her son, the plaintiff, Nathan Douglas Crane.

Plaintiffs filed their petition for wrongful death August 20, 1971, twenty-three months following the fatality, but decedent’s parents have not joined in this proceeding nor have they brought a separate action to secure their interests. All defendants denied liability alleging contributory negligence and defendant McGowan, not served until March of 1975 (more than five years after Crane’s death), moved to dismiss alleging the bar of § 537.100, RSMo 1969. After the decisions of this Court in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo.banc 1976) and Selsor v. Zenith Radio Corporation, 536 S.W.2d 157 (Mo.banc 1976), defendants amended their pleadings alleging that decedent’s parents survived him, a fact admitted by plaintiffs, and moved to dismiss for the reason the action had not been brought within one year following the death. Defendants’ motions were sustained and from the order of dismissal plaintiffs appealed.

Under § 537.080, RSMo 1969, as interpreted by this Court in Kansas City Stock Yards and Selsor, supra in 1976, and more recently in Edmonsond v. Lakeside Hospital Association, 562 S.W.2d 361 (Mo. banc 1978), the claim for wrongful death accrued on the date of death vesting in decedent’s minor child and spouse who, because decedent’s parents survive, were obliged to appropriate their preferred right of action by filing suit within one year from the date of death or failing so to do the claim passed to and vested in decedent’s parents.

We first consider the fact that plaintiff Nathan Douglas Crane was born seven months after his father’s death and its ef-feet on plaintiff’s right of action. The class of persons described as parties entitled to maintain an action in subsection 537.080(2) as “spouse or minor children” who must “sue within one year [if deceased is survived by a parent or parents] after such death” does not expressly include children born subsequent to the death. Assuming, arguendo, the class includes such post-born minor and that the one year period was extended by the birth of decedent’s son seven and one-half months following “such death”, he nevertheless failed to commence suit within one year after his birth, April 27, 1970. Thus (though we do not rule the point), if the one year period were extended, at least as to Nathan’s claim, the cause of action if separable in the minor was extinguished April 27, 1971, almost four months before suit was brought. See Wes-sels v. Gipfel, 522 S.W.2d 653, 656 (Mo.App. 1975). It cannot be said that plaintiffs appropriated their cause of action because they “failed to timely perfect an essential element of their claim for relief.” Edmon-sond v. Lakeside Hospital Association, supra at 363. Under § 537.080 the suit was properly dismissed.

Seeking to preserve their right of action, plaintiffs assert that the statute is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Art. I, § 2 of the Missouri Constitution because it discriminates between (1) that class of minor children and/or spouse of a decedent survived by one or both of his parents and (2) that class of minor children and/or spouse of a decedent not survived by parent or parents. The former is subject to the one year limitation of § 537.080(2), but not the latter, which is limited only by the two year term of § 537.100.

In this regard it is important that § 537.080, creating the referenced classes of claimants, does not establish differences within a class and it is generally held that legislative classification of the type here considered is not prohibited by the equal protection clauses of the United States and State Constitutions “if all within the same class are included and treated alike.” Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo.banc 1959). While the general purpose of the cited constitutional provisions is to prevent invidious discrimination, the creation of unequal rights between classes (not otherwise suspect) is permissible unless such classification rests upon grounds irrelevant to the achievement of the State’s objective or not reasonably related to the legislative purpose. Gem Stores, Inc. v. O’Brien, 374 S.W.2d 109, 117 (Mo.banc 1964); Petitt v. Field, 341 S.W.2d 106,109 (Mo.1960). These principles were discussed in some detail in Ballentine v. Nester, 164 S.W.2d 378, 383 (Mo.banc 1942) as follows:

“ ‘There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a classification for governmental purposes, there cannot be an exact exclusion or inclusion of persons and things.’ It is ‘sufficient to satisfy the demand of the Constitution if a classification is practical and not palpably arbitrary.’ Louisville and Nashville R. R. v. Melton, 218 U.S. 36, loc. cit. 55, 30 S.Ct. 676, 54 L.Ed. 921 [47 L.R.A., N. S., 84], ‘The selection, in order to become obnoxious to the fourteenth amendment, must be arbitrary and unreasonable, not merely possibly, but clearly and actually, so.’ Bachtel v. Wilson, 204 U.S. 36, loc. cit. 41, 27 S.Ct. 243, 245, 51 L.Ed. 357. Again, ‘a classification may not be merely arbitrary, but necessarily there must be great freedom of discretion even though it result in ill-advised, unequal, and oppressive legislation.’ Heath & Milligan Mfg. Co. v. Worst, 207 U.S. [338], loc. cit. 354, 28 S.Ct. 114,119, 52 L.Ed. 236; ...” (Other citations omitted.)

The question for us is whether the classification of claimants within the framework of the wrongful death statutes bears a reasonable relation to the legislative intendment.

We must remember there was no right of action for wrongful death at common law and only by virtue of statutory enactment did it become possible to recover upon such claims. In State ex rel. Kansas City Stock Yards v. Clark, 1. c. 144, the Court, nothing that the wrongful death statutes had been “amended and reenacted in 1967,” quoted from Wessels v. Gipfel, supra at 656:

“There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation.”

In its critical analysis that followed, the Court pointed out that the Act provides for one indivisible death claim, vesting first in the spouse and minor children, either jointly or severally, and if the deceased left surviving a father or mother, the spouse and minor children must exercise their preferred right by filing suit within one year from the date of death. If however, the spouse and minor children fail to sue within one year, the claim passes to and vests in the father and mother or the survivor. If there is no father and/or mother, the spouse and minor children have the full two years in which to sue. Further, if there is no spouse or minor children, the father and mother may sue at any time within the two year period and the party having the right to enforce the claim has absolute control thereover during the period specified and may bring an action or settle without suit. In addition, when appropriated by one of the preferred classes of beneficiary, the claim terminates the rights of any others mentioned in the statute with the exception that if the person so appropriating dies during the limitation period without having completed enforcement, the next alternative claimant may file within the two year limitation period. Finally, as provided in § 537.080(3), if there be no husband, wife, minor children or others of the classes designated in the preceding subsection, “. . . then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.” In addition to these interpretative statements of § 537.080, we examine the provisions of § 537.090, RSMo Supp. 1975, which speaks to damages for wrongful death. That section requires such damages shall be awarded “as will fairly and justly compensate such party or parties for any damages he or they have sustained and are reasonably certain to sustain in the future as a direct result of such death.” (Emphasis ours.) Considering sections 537.080-537.100 in their entirety, there emerges a clear legislative intent to provide damage claims for those classes we normally would expect to find most affected by the death of a family member in descending order of their dependence. This is not to say that in every class the level of dependence must or does follow the legislative pattern but such variants, stemming from statutory underinclu-siveness or inability to foresee all possible fact combinations, do not chill the constitutional validity of the legislative scheme. This pattern is seen in the fact that the spouse and minor children constitute the class given priority for first appropriation of the claim, followed by the parents of the decedent and thereafter by the administrator or executor for the benefit of those entitled to a share of the decedent’s estate under the laws of descent. Such arrangement roughly parallels the pattern of intestate succession under the probate code. As noted above, such action was unknown at common law and came into being only when the legislature deemed it desirable to create the right and nominate those entitled to sue. A class was established consisting of the spouse and minor children who, by virtue of their relationship with the deceased and probable dependence upon him, have a special or preferred right to bring such action in the first year to the exclusion of the parents (if then living), adult children (if any), and any others, regardless of their degree of consanguinity. For purposes of defendants’ equal protection argument, this “first” class has been compared to another, consisting of spouse and minor children whose decedent leaves no parents living, whose members have two years in which to bring the action. Though several classes have been created by the statute, no distinction has been drawn between members within each class. Due regard has been shown to the needs of other classes (e. g., parents of decedent), who might reasonably be expected to experience damage from the death. The order and time of death, as well as the age and probable level of dependence of those in the decedent’s immediate family, are concerns clearly considered and balanced by the legislature. For example, any minor child who dies before accrual of the cause of action is eliminated from the class. Similarly, the deaths of a minor claimant’s grandparents (i. e., the parents of the deceased), before accrual of the cause of action affects the establishment and nature of the class entitled to sue. Also, a child who attains his majority before his parents’ death and who in the usual case is expected to be self-supporting is eliminated from the first class of claimants. These qualifications for class membership are relevant to a discernible legislative purpose. As stated by the United States Supreme Court in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” 1. c. 111, 86 S.Ct. 1. c. 763. To like effect in Dandridge v. Williams, 397 U.S. 471,90 S.Ct. 1153,25 L.Ed.2d 491 (1970), the Court discussing an equal protection challenge to the Federal Aid to Families With Dependent Children Program states at page 485, 90 S.Ct. at page 1161: “In the area of economics and social welfare a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” The Court further observed that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific,” and that “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it,” citing McGowan v. Maryland, 366 U.S. 420,426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

We must decide whether the classifications adopted in the Act rest upon some real difference “which bears a reasonable and just relation to the act in respect to which the classification is proposed.” State ex inf. McKittrick ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990, 994 (Mo.banc 1942); Kansas City v. Webb, 484 S.W.2d 817 (Mo.banc 1972), cert, denied, 409 U.S. 851, 93 S.Ct. 62, 34 L.Ed.2d 93; State v. Ewing, 518 S.W.2d 643 (Mo.1975). It should be emphasized that the classification of those entitled to sue under the wrongful death statute does not involve interference with the exercise of a “fundamental” right nor discriminate as to classes having the “traditional indicia of suspectness” for equal protection considerations. The designated classes are “not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritorian political process.” San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 1. c. 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). In that case suit was brought on behalf of members of poor families residing in districts with low property tax bases who made claims that the Texas system of reliance on local property taxation to finance their public elementary and secondary schools favored the more affluent and violated equal protection requirements by producing substantial inter-district disparities in per pupil expenditures. This resulted primarily from differences in the value of assessable property among the districts. The Court held that was not a proper case in which to examine the State’s laws under standards of “strict judicial scrutiny” since that test was reserved for those cases involving laws which operate to the advantage of a “suspect class” or interfere with the exercise of “fundamental rights” and liberties explicitly or implicitly protected by the Constitution. So too, in the case at bar no suspect class nor interference with “fundamental right” appears and strict judicial scrutiny is not the proper standard. The Texas system for financing its elementary and secondary schools was found not to violate the equal protection clause of the Fourteenth Amendment.

The number of classes into which our citizens may be constitutionally classified has been described as infinite, and the legislature has chosen to give parents of a deceased the right to sue for his wrongful death during the second year following his death, if the prescribed conditions of the statute occur. It is not constitutionally impermissible that the right of action passes to and vests in the decedent’s parents at the beginning of the second year to the exclusion of the minor children and spouse who have not appropriated the action when contrasted with that class in which no parents of decedent survive and whose members may sue during the two year period. Thus we have a variety of claimants classified in various ways and though the statute may be arguably imperfect or underinclusive, such defects or legislative choices do not constitute an impermissible denial of equal protection of the laws. We find that the distinctions between the classes hereinabove described are relevant to the purposes for which the classifications were made and the contention of constitutional invalidity is denied.

Appellants’ final point is that the statute of limitations provided in § 537.100, RSMo 1969, “was tolled because the defendant Larry McGowan was a nonresident of Missouri at all times on, and after September 15, 1969, and could not be served under the Missouri Nonresident Motorist Statute and could not be served until he was served on March 6, 1975 . . .The one year time limitation restricting plaintiffs’ rights in this case are found in the provisions of § 537.080, which are independent of the tolling provisions of § 537.100 and the two year limitation provided by that section. As previously discussed, by their failure to appropriate the cause of action plaintiffs failed to perfect an essential element of their claim for relief. The tolling provisions of § 537.100 do not affect the plaintiffs’ rights to the cause of action, lost to them under § 537.080(2). The contention is without merit.

The action of the trial court dismissing plaintiffs’ action is affirmed.

MORGAN, C. J., and FINCH and DON-NELLY, JJ., concur.

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

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

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

BARDGETT, Judge,

dissenting.

I respectfully dissent. The plaintiffs are the surviving spouse (Mary) of Larry Crane, deceased, and the posthumous son (Nathan) of Larry and Mary. Nathan was born seven and one-half months after his father Larry was killed, allegedly due to the negligence of two other automobile drivers. Unfortunately for Máry and Nathan, the deceased Larry was also survived by his parents whom he did not support and to whom he owed no duty to support and who did not sue within the two-year-limitation period.

The suit by Mary and the minor child Nathan was filed August 20, 1971, twenty-three months after Larry’s death. Here, as in State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142 (Mo.banc 1976), Sel-sor v. Zenith Radio Corp., 536 S.W.2d 157 (Mo.banc 1976), Edmonsond v. Lakeside Hospital Assn., 562 S.W.2d 361 (Mo.banc 1978), the infants of a deceased and/or a surviving wife or husband are denied the right to sue because the deceased was (unfortunately for the children and spouse) survived by parents even though the parents were owed no duty of support by the deceased, received no support from the deceased and filed no suit, nor did the parents “appropriate” the cause of action in any way at all.

So, this makes the fourth casualty in a short time of a confusing wrongful death statute. The victims (minor children and spouses) are those who suffer most by the death and are often those who simply cannot, because of their infancy, as in this case, protect themselves by bringing a suit within the first year after the death of the father or mother. No one could realistically pretend that in this case Nathan could have done a thing to bring suit and thereby have damages for the loss of his right to support by his father.

The denial of the right to sue to a widow and minor child simply because the deceased also left surviving him, somewhere in this world, a mother or father who have not been damaged, completely distorts the purpose of the law and, in my opinion, produces a result which the court should avoid if at all possible.

The court has previously held that if the deceased did not leave a mother or father surviving then the surviving spouse and minor children have the full two years in which to sue, Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973), Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973), and cases cited therein. This even though the statute does not explicitly provide for the additional year in such circumstances. In the instant case the surviving parents did not sue within the two-year period and, therefore, can never sue. The defendants will not be subject to multiple litigation or multiple claimants of different classes. Therefore, I would hold that this suit can be maintained by both the surviving spouse and minor child and consider this case the same as if the deceased left no surviving parents.

My views that the origin of wrongful death actions is found in the common law and that such an action existed in Missouri (James v. Christy, 18 Mo. 162 (1853)), prior to the first death damage act have been set forth in my dissenting opinion in State ex rel. Kansas City Stock Yards v. Clark, supra, at 149-157. See also Selsor v. Zenith Radio Corp., supra, Montemayor v. Harvey, supra, Almerantz v. Carney, supra, and Edmonsond v. Lakeside Hospital Assn., supra. For an exhaustive treatise supporting the proposition that such a recovery was allowed at common law, see 1 S. Speiser, Recovery for Wrongful Death 2-28 (2d ed. 1975).

One would think the Missouri general assembly would have given some attention to their wrongful death statute in the past several years in order to correct the obvious injustice being wrought by that law but they haven’t done so yet. Just maybe the fact that an infant not yet born at the time of his father’s death is forever barred from recovery for the loss of his father because, as I say, unfortunately the father’s parents happen to survive him, will get their attention. I hope so. I dissent.

      . While driving a truck south on U. S. Highway 61 in Perry County, Crane was blinded by the lights of a following vehicle. He stopped, dismounted and was walking back toward the following vehicle driven by defendant McGowan (who apparently had stopped, although the record is not clear on this point) and was fatally struck by a northbound tractor trailer unit operated by the defendant, Riehn, the agent-driver of defendant, Macke’s Farm Service.

      . All statutory references are to RSMo 1969, unless otherwise cited.
      Pertinent portions of § 537.100, RSMo 1969, are as follows: “Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; provided, that if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him; ...”