Kerr v. Ehinger Inc.

Decision Date04 November 1974
Docket NumberNo. KCD,KCD
Citation515 S.W.2d 763
PartiesBennie J. KERR, Respondent, v. EHINGER, INC., d/b/a C. S. Ehinger Hauling Company and Commercial Union Insurance Company, Appellants. 26998.
CourtMissouri Court of Appeals

Fred H. Metcalf, Kansas City, for Commercial Union Ins. Co.

L. R. Magee, Kansas City, for C. S. Ehinger.

Henry A. Panethiere, Joseph R. Hachey, Kansas City, for respondent.



This appeal has its roots in a judgment entered by the Circuit Court of Jackson County affirming a final award of the Industrial Commission of Missouri which awarded respondent a 'total aggregate amount of $8,750.00' for the loss of sight in his right eye as the result of an accident arising out of and in the course of his employment as an alleged 'statutory employee' within the meaning of Section 287.040, RSMo 1969, V.A.M.S. The alleged statutory employer and its insurer lodged a timely appeal.

The joint brief filed in this court by the 'employer' and 'insurer', as appellants, purports to raise two 'points' entitling them to appellate relief:

'Is the claimant, Bennie Kerr, a statutory employee of C. S. Ehinger, or was he the employee of a salvage customer of C. S. Ehinger?'

'Was there abuse of discretion by the referee in permitting a witness to testify after violating the rule against exclusion of witnesses?'

Subparagraphs (a) and (d) of Rule 84.04, V.A.M.R., clearly, succinctly and without equivocation require that an appellant's brief '. . . shall contain . . . (t)he points relied on . . .' and that '. . . the points relied on shall state briefly and concisely what actions or rulings . . . are sought to be reviewed and wherein and why they are claimed to be erroneous . . .'. (Emphasis added.) Rule 84.04 applies with equal vigor to appeals generated under the Workmen's Compensation Act. Biggs v. Loida, 488 S.W.2d 932 (Mo.App.1972).

It is patently obvious that the two 'points' purportedly raised by appellants in their brief violate both the letter and spirit of Rule 84.04. Cases holding that mere abstract statements fail to properly isolate and formulate points on appeal are legion. For example see: Chase Realty Company v. Dorel Company, 437 S.W.2d 65 (Mo.1969); Hamil v. Hamil, 488 S.W.2d 300 (Mo.App.1972), and Kansas City v. Garza, 493 S.W.2d 659 (Mo.App.1973). The purported points in question fail to rise even to the level of abstract statements. At best, they merely post abstract questions. As such, they neither state 'the points relied on' or 'wherein and why' any alleged error was committed. The vice of the purported point goes beyond mere semantic criticism. Their vice lies in the fact that they defeat every salutary purpose that Rule 84.04 was drafted to serve.

Rule 84.04 is embedded in practicality--not the least of which is to facilitate and expedite the appellate case load. Events contributing to the ever increasing appellate case load are well-known and too numerous to mention. Suffice it to say, the greatly increased volume of appellate cases has become a present reality rather than a speculative myth. The appellate courts of this state, if they are to meet the responsibility imposed upon them due to their vastly increased dockets, must, in all good conscience, utilize every available tool that is geared for the just and expeditious disposal of appellate cases. Adherence to Rule 84.04 is surely such a tool.

The exigencies brought about by the increased appellate case load drive home the stark reality that appellate courts may no longer indulge the bar with the luxury of imploring it to comply with appellate rules of procedure and warning of possible sanctions for failure to comply. It...

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11 cases
  • Vodicka v. Upjohn Co.
    • United States
    • Missouri Court of Appeals
    • January 4, 1994
    ...Harris, 518 S.W.2d 227 (Mo.App.1974); Power v. Automobile Club Inter-Insurance Exchange, 516 S.W.2d 541 (Mo.App.1974); Kerr v. Ehinger, Inc., 515 S.W.2d 763 (Mo.App.1974); Hampton v. Gilmore, 511 S.W.2d 442 (Mo.App.1974); Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972); Robbin......
  • State v. White
    • United States
    • Missouri Court of Appeals
    • October 3, 1975
    ...Harris, 518 S.W.2d 227 (Mo.App.1974); Power v. Automobile Club Inter-Insurance Exchange, 516 S.W.2d 541 (Mo.App.1974); Kerr v. Ehinger, Inc., 515 S.W.2d 763 (Mo.App.1974); Hampton v. Gilmore, 511 S.W.2d 442 (Mo.App.1974); Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 ...
  • Associates Discount Corp. of Iowa v. Fitzwater
    • United States
    • Missouri Court of Appeals
    • December 2, 1974
    ...who comply with the rule having their causes delayed by time-consuming efforts in reviewing points not properly briefed. Kerr v. Ehinger, Inc., 515 S.W.2d 763 (handed down November 4, On the issue of the denial of the motion for summary judgment, the transcript does not contain the motion, ......
  • Long v. Lincoln
    • United States
    • Missouri Court of Appeals
    • September 26, 1975
    ...wherein and why the court allegedly erred in any respect. Hines v. Sweet, 518 S.W.2d 710, 711(1) (Mo.App.1975); Kerr v. Ehinger, Inc., 515 S.W.2d 763, 765(2) (Mo.App.1974); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599, 601(4) We would be well within our rights to dispatch t......
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