Wengler v. Druggists Mutual Insurance Co.

PER CURIAM:

On June 27, 1979, this Court held § 287.-240, RSMo Supp.1976, constitutional. Wengler v. Druggists Mutual Insurance Company, 583 S.W.2d 162 (Mo. banc 1979).

On April 22, 1980, in Wengler v. Druggists Mutual Insurance Co., — U.S. —, —, 100 S.Ct. 1540, 1547, 64 L.Ed.2d 107 (1980) the United States Supreme Court reversed and said:

“Thus we conclude that the Supreme Court of Missouri erred in upholding the constitutional validity of § 287.240. We are left with the question whether the defect should be cured by extending the presumption of dependence to widowers or by eliminating it for widows. Because state legislation is at issue, and because a remedial outcome consonant with the state legislature’s overall purpose is preferable, we believe that state judges are better positioned to choose an appropriate method of remedying the constitutional violation. Accordingly, we reverse the decision of the Supreme Court of Missouri and remand the case to that court for further proceedings not inconsistent with this opinion.”

In its Second Regular Session, the 80th General Assembly of the State of Missouri enacted into law Conference Committee Substitute for House Bill No. 1396 (effective August 13, 1980), which extends the presumption of dependence to widowers.

In these circumstances, we believe the presumption of dependence should be extended to Paul J. Wengler. Jones v. State Highway Commission, 557 S.W.2d 225, 231 (Mo. banc 1977).

The judgment of the trial court is affirmed and the cause remanded.

SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur. DONNELLY, J., concurs in result in separate opinion filed, BARDGETT, C. J., and RENDLEN, J., dissent.