Brocco v. May Department Stores Co., 20812.

• Decision Date: 07 January 1930
• Docket Number: No. 20812.,20812.
• Parties: BROCCO v. MAY DEPARTMENT STORES CO. et al.
• Court: Missouri Court of Appeals

22 S.W.2d 832

BROCCO v. MAY DEPARTMENT STORES CO. et al.

No. 20812.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Rehearing Denied January 24, 1930.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Proceeding under the Workmen's Compensation Act by Catherine Brocco, claimant, widow of John Brocco, deceased, against the May Department Stores Company, employer, and the Ocean Accident & Guarantee Corporation, insurer. From a judgment of the circuit court, reversing an award by the Workmen's Compensation Commission in favor of the employer and insurer, the employer and insurer appeal. Affirmed.

Jones, Hocker, Sullivan & Angert, W. A. McCaleb, and James C. Jones, Jr., all of St. Louis, for appellants.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

BECKER, J.

This is a proceeding under the Workmen's Compensation Act (Laws 1927, p. 490), by Catherine Brocco, widow of John Brocco, deceased, for compensation for the death of John Brocco, employee, against the May Department Stores Company, a corporation, the employer, and the Ocean Accident & Guarantee Corporation, the insurer.

The evidence upon the claim was originally heard by Hon. Alroy S. Phillips, the commissioner, and an award entered in favor of claimant for the death benefit. After a hearing before the full commission, however, said award was reversed, and an award entered in favor of the employer and the insurer; Commissioner Phillips dissenting. On appeal in the circuit court of the city of St. Louis, the award of the commission was reversed, the court assigning as its reasons, first, that the facts found by the commission do not support the award; second, that there was not sufficient competent evidence in the record to warrant making the award.

The employer and the insurer thereupon filed a motion for a new trial, which the court in due course overruled; but, without saving exceptions to the action of the court in overruling their motion for new trial, the employer and the insurer filed their affidavit for an appeal, which the court granted. The record discloses that no bill of exceptions was made or filed in the circuit court.

The appellants present two assignments of error: That the trial court below erred in reversing the award of the Workmen's Compensation Commission, denying compensation on the ground "(A) that the facts found by the commission do not support the award; (B) that there was not sufficient competent evidence in the record to warrant making the award."

We are met at the threshold of the case by the contention of respondent that there is nothing before this court for review but the record proper. Respondent urges that, in order to have appellate review of the judgment and finding of the circuit court, it is essential that appellants, not only should have filed a motion for new trial, which they did, but also to have saved and preserved an exception to the action of the court in overruling such motion. After due consideration, we have come to the conclusion that the point is well taken.

Section 44 of the Missouri Workmen's Compensation Act (Laws Mo. 1927, p. 512), among other things, provides that either party to the dispute may take an appeal from the final award by the commission to the circuit court, and that, when notice of appeal shall have been filed with the commission, the commission shall "under its certificate return to the court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, which shall thereupon become the record of the cause. Upon appeal no additional evidence shall be heard. * * * The court, on appeal, shall review only questions of law, and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Appeal from the circuit court shall be allowed the same as in civil actions."

In the instant case there was no suggestion that the award was procured by fraud, and the circuit court on appeal was clothed with jurisdiction to determine the issues whether the finding of facts made by the commission was supported by evidence, and whether this finding, if supported by substantial evidence, legally warranted the award. Under these issues of law, the circuit court, after a review of the evidence, decided that "the facts found by the commission do not support the award," and that "there is not sufficient competent evidence in the record to warrant the making of said award," and accordingly reversed the award and remanded the cause to the commission, "for further proceedings and award not inconsistent with this decision and judgment." The circuit court thus passed upon questions of law alone, and its judgment, therefore, is a legal conclusion from the facts it had before it.

We believe the record before us is analogous to that found in Donaldson v. Thompson, 120 Mo. 152, 25 S. W. 358, 359, an action at law tried to the court without a jury, on an agreed statement of facts filed in the case. There, when judgment was had for plaintiff, defendant appealed, but filed no motion for new trial, and the record brought up showed no exceptions to any action of the court. It was there held that:

"The defendants have duly incorporated the statement of facts in what is termed a bill of exceptions, which presents the anomaly of containing no exception to any action of the court. No exception was saved to the conclusion of law drawn by the court from the agreed facts,...