Hance v. Johnson, Stephens & Shinkle Shoe Co., 7642

CourtCourt of Appeal of Missouri (US)
Citation306 S.W.2d 80
Decision Date23 October 1957
Docket NumberNo. 7642,7642
PartiesEarnie HANCE, Employee, Appellant, v. JOHNSON, STEPHENS & SHINKLE SHOE COMPANY, Employer, and Liberty Mutual Insurance Company, Insurer, Respondents.

White & White, Rolla, for appellant.

James E. Garstang, C. Lawrence Mueller, St. Louis, for respondents.

STONE, Judge.

In this proceeding for benefits under the Missouri Workmen's Compensation Law [Chapter 287], Earnie Hance, self-described as a 'very goosy' individual, asserted that, while drinking at a fountain in the Rolla plant of Johnson, Stephens & Shinkle Shoe Company, his employer, 'I was goosed and I jumped against the drinking fountain.' (All statutory references herein are to RSMo 1949, V.A.M.S.) The referee in the first instance, and the Industrial Commission of Missouri on review, denied benefits because (in the language of the Commission) 'the employee's condition was not caused nor aggravated by the accident but was the result of Peyronie's Disease that existed prior to the date of the accident.' Following affirmance by the circuit court, the employee seeks appellate review.

Our initial duty is to inquire into and determine our appellate jurisdiction. Taney County v. Addington, Mo.App., 296 S.W.2d 129(1), and cases there cited. The employee filed a timely motion for new trial on the fourth day after entry of judgment in the circuit court. Section 510.340. When that motion was overruled on March 20, 1957, less than ninety days after it had been filed, the judgment became final for the purpose of ascertaining the time within which an appeal might be taken. Supreme Court Rule 3.24(a); Starr v. Mitchell, Mo., 237 S.W.2d 123, 124(1). Fifteen days thereafter, to-wit, on April 4, 1957, the employee filed his notice of appeal.

The plain and unequivocal mandate of Section 512.050 is that no appeal 'shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.' The right of appeal is purely statutory [Collier v. Smith, Mo.App., 292 S.W.2d 627, 629(1), and cases there collected]; and, although courts have discretionary power to extend the time for the doing of many acts, they may not enlarge the period within which an appeal may be taken. Section 506.060; Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Bank of Thayer v. Kuebler, 240 Mo.App. 776, 781, 219 S.W.2d 297, 299. It has been pointed out repeatedly that the timely filing of a notice of appeal is the vital step for perfecting an appeal and is an essential prerequisite to appellate jurisdiction. Starr v. Mitchell, supra, 237 S.W.2d loc.cit. 124-125(3); Byers v. Zuspann, Mo.App., 257 S.W.2d 384, 387(1); Hynes v. Risch, Mo.App., 243 S.W.2d 116, 117(2). See, also, Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660(4); Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311, 314-315(2). Where, as in the instant case, the notice of appeal has not been filed within the permitted time, we have no alternative other than to dismiss the appeal, no matter how strong may be our disposition and desire to accord a liberal construction to statutes and rules pertaining to appellate procedure. State v. Robbins, Mo., 269 S.W.2d 27, 29; Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, 576(3).

However, we have, ex gratia, examined the transcript carefully that our disposition of this appeal may, in no event, contribute to the frustration sometimes engendered by the condition known as Peyronie's Disease, with which the employee admittedly is suffering. Peyronie's Disease, 'a headache to all of the urologists' (as one medical witness volunterred) and obviously more than that to patients afflicted therewith, is a condition curtly referred to as 'plastic induration of the penis' and more graphically described as the replacement of normal vascular tissue with fibrous tissue causing 'a plaque or a hardened area to form' and resulting in a painful curvature of the penis during erection. One of the employee's medical witnesses found 'an indurated mass (i.e., hardened area) about two to three centimeters * * * long on the left side' near the base of the employee's penis, another of the employee's medical witnesses thought that the hardened area was 'on the mid-protion of the penis,' a third medical witness for the employee just as confidently asserted that the induration was on 'the right side of the penis,' and the employer's-insurer's medical examiner found 'several patches'--'some toward the base and then it goes up toward the front end of the penis'--involving the top and both sides. The employee, no doubt as well qualified as any of the 'experts' to describe the objective manifestations of his malady, reported in vivid and picturesque style...

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  • Hampton v. Big Boy Steel Erection, No. 85456 (Mo. 12/9/2003), 85456.
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 2003
    ...Co., 308 S.W.2d 306 (Mo. App. 1957); Blair v. Armour & Co., 306 S.W.2d 84 (Mo. App. 1957); Hance v. Johnson, Stephens & Shinkle Shoe Co., 306 S.W.2d 80 (Mo. App. 1957); Garrison v. Campbell '66' Exp., Inc., 297 S.W.2d 22 (Mo. App. 1956) ; McCaleb v. Greer, 267 S.W.2d 54 (Mo. App....
  • Hood v. M. F. A. Mut. Ins. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 28, 1964
    ...Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Heard v. Frye, Mo.App., 319 S.W.2d 685, 686(2); Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(2); Bank of Thayer v. Kuebler, 240 Mo.App. 776, 781, 219 S.W.2d 297, 299. The fifteen-day time limitation on t......
  • Hampton v. Big Boy Steel Erection
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 2003
    ...Co., 308 S.W.2d 306 (Mo.App.1957); Blair v. Armour & Co., 306 S.W.2d 84 (Mo.App.1957); Hance v. Johnson, Stephens & Shinkle Shoe Co., 306 S.W.2d 80 (Mo.App.1957); Garrison v. Campbell `66' Exp., Inc., 297 S.W.2d 22 (Mo.App.1956); McCaleb v. Greer, 241 Mo. App. 736, 267 S.W.2d 54 1. All stat......
  • R---, In Interest of, 8015
    • United States
    • Court of Appeal of Missouri (US)
    • November 28, 1962
    ...the period within which an appeal may be taken. Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(2); Bank of Thayer v. Kuebler, 240 Mo.App. 776, 781, 219 S.W.2d 297, 299. Our appellate courts have reiterated......
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