Opinion
No. 28544.
January 20, 1953.
APPEAL FROM THE CIRCUIT COURT, ST. FRANCIS COUNTY, J. O. SWINK, J.
Smith, Harris Hanke, Harold C. Hanke, St. Louis, for appellants.
W. Oliver Rasch, Bonne Terre, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for respondent.
This is a claim which was filed before the Division of Workmen's Compensation of the Department of Labor and Industrial Relations of Missouri. It arises out of the death of Emil H. Gramm, who was admittedly killed by accident arising out of and in the course of his employment with the St. Joseph Lead Company. The employer reported the death to the Division of Workmen's Compensation and upon information that the deceased employee had left no dependents the company paid into the Second Injury Fund of the State of Missouri the sum of five hundred dollars as required by law. Thereafter the claim now in dispute was filed by Virginia Mossman, Floyd Mossman, and Terry Lyn Mossman, who are respectively the daughter, son-in-law, and grandson of the deceased, Emil H. Gramm, and they claim that they were his partial dependents.
The employer moved that the state treasurer, who is custodian of the Second Injury Fund be made a party defendant to the action for the reason that he would be obliged to refund to the employer the five hundred dollars that had been paid, if the claimants' dependency was proven. The treasurer entered his appearance and filed an answer denying the dependency of the claimants and was represented by the attorney general upon the hearing before the referee.
The finding of the referee was against the claimants, and the full commission upon review also found that Gramm left no dependents, either total or partial, within the meaning of the Workmen's Compensation law. From this the claimants appealed to the circuit court where the final award of the Division of the Workmen's Compensation was upheld, and thereafter Virginia Mossman and Terry Lyn Mossman appealed to this court.
The respondent directs our attention to the question of appellate jurisdiction that appears to be in the case by reason of the fact that the state treasurer was made a party to the action. The Constitution of Missouri, Article 5, Section 3, gives to the Supreme Court exclusive appellate jurisdiction "in all civil cases where * * * any state officer as such is a party." If, therefore, the state treasurer is a party to this action within the meaning of the constitution, this case must be transferred to the Supreme Court.
The "Second Injury Fund" is a fund created by Section 287.220 RSMo 1949, V.A.M.S., out of which an employee may be paid when he suffers a second injury which entitles him to compensation in excess of that which the employer is required to pay. This fund is derived from payments employers are obliged to make to it when their employees sustain certain injuries, and the employers are obliged, under the statute, to pay into this fund the sum of five hundred dollars when an employee suffers a fatal accident for which death benefits would be payable under the act, but leaves no dependents entitled to claim such benefits.
Subsection (1) of paragraph 1 of the section provides:
"The state treasurer shall be the custodian of the second injury fund and said fund shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. Said fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer."
Subsection (4) provides:
"In event of payment on account of death is or has been made by an employer under the provisions of this section into the second injury fund, and dependence in any degree as in this chapter provided is later proved, the state treasurer is hereby authorized and directed to refund such deposit upon certification of the commission of the establishment of such dependency."
And subsection (6) provides:
"In all cases in which a recovery against said second injury fund is sought, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against said claim. All awards affecting said funds and deposits therein shall be subject to the provisions of this chapter governing review and appeal."
The respondent directs our attention to the cases of Klaber v. O'Malley, Mo.Sup., 90 S.W.2d 396, and Murphy v. Hurlbut Undertaking Embalming Co., 346 Mo. 405, 142 S.W.2d 449.
The first of these cases involves a suit on an insurance policy against a company which was taken over by the State Superintendent of Insurance while the suit was pending. The superintendent of insurance was made a party. The Supreme Court held that it had jurisdiction of the appeal because the duties and functions of the superintendent were state-wide in their scope and he was acting as a state officer in taking over the assets of the company.
The case of Murphy v. Hurlbut Undertaking Embalming Company was an action brought in the name of the Unemployment Compensation Commissioners for sums due from the defendant to the unemployment compensation fund. Again in this case the Supreme Court held that the plaintiffs were state officers whose duties were coextensive with the state and it therefore had jurisdiction of the appeal. It should be noted that cases involving the same factual issues would not at this time be within the jurisdiction of the Supreme Court for the members of the Unemployment Compensation Commission are no longer authorized to bring suits in their own names as commissioners. Parker v. Unemployment Compensation Commission, 358 Mo. 365, 214 S.W.2d 529. The Hurlbut case has been followed in the more recent case of State ex rel. Webb v. Pigg, Mo.Sup., 249 S.W.2d 435, 438 in which it was stated:
"In order to be considered a `state officer' within the purpose and meaning of said constitutional provision, the official in question must have been delegated a portion of the sovereign power of government to be exercised for the benefit of the public and such delegation of sovereign power must be `substantial and independently exercised with some continuity and without control of a superior power other than the law.'"
The state treasurer seems to fall within this classification and in view of the statute directing that the treasurer be made a party to claims against the second injury fund of which he is legal custodian, it appears that in cases such as this, the action involves a state officer, within the meaning of the constitutional provision which gives the Supreme Court exclusive appellate jurisdiction.
We are cited by the appellant to Bank of Darlington v. Atwood, 325 Mo. 123, 27 S.W.2d 1029, and Union Electric Light Power Co. v. Holt, Mo.Sup., 131 S.W.2d 720. In these cases no state fund was involved and the Supreme Court held that the finance commissioner, who was a party in both cases, was authorized by law to bring and defend actions in the name of the delinquent bank and that when he did so he was merely acting in a representative capacity and was not a party to the action within the constitutional sense.
The same is true in quo warranto brought at the relation of an individual by the attorney general for there he is not the real party in interest. State ex rel. Handlan v. Wilkie Land Co., 349 Mo. 666, 162 S.W.2d 846.
These cases are not pertinent to the situation under consideration for if the claimants prevail in this case the treasurer will be obliged to pay to the employer five hundred dollars from the fund he is charged with keeping. Nor does the fact that the attorney general waived service of a copy of the transcript and filed no brief on appeal, alter the interest of the treasurer which was fixed by the statute quoted.
For the reasons stated, it is the recommendation of the Commissioner that this cause be transferred to the Supreme Court.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The cause is accordingly transferred to the Supreme Court.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.