Kristanik v. Chevrolet Motor Co.

• Decision Date: 15 September 1931
• Citation: 41 S.W.2d 911,226 Mo.App. 89
• Parties: ANDREW KRISTANIK, DEFENDANT IN ERROR, v. CHEVROLET MOTOR COMPANY, PLAINTIFF IN ERROR
• Court: Missouri Court of Appeals

41 S.W.2d 911

226 Mo.App. 89

ANDREW KRISTANIK, DEFENDANT IN ERROR, v. CHEVROLET MOTOR COMPANY, PLAINTIFF IN ERROR

Court of Appeals of Missouri, St. Louis

September 15, 1931

Writ of Error from the Circuit Court of the City of St Louis.--Hon. Granville Hogan, Judge.

Writ of error dismissed.

McCarthy Morris & Zachritz for plaintiff in error.

(1) Transcript of the proceedings before the Commission not having been formally "introduced in evidence," there was nothing before the court. The employer had no notice of these proceedings under Section No. 45, Mo. Comp Act. (2) Under the act the transcript of the proceedings before the Commission shall constitute the record of the cause. Section No. 44, Mo. Comp. Act. (3) The findings of the Commission were conclusive on the circuit court. Section 44 Mo. Comp. Act; Huelsman v. Stute & Co., 28 S.W.2d 387; Holmes v. Keller Const. Co., 24 S.W.2d 1077; Woods v. American Coal & Ice Co., 25 S.W.2d 144. (4) Appellate court must look to evidence most favorable to support finding of Commission. Brewer v. Ash Grove Lime & Cement, 25 S.W.2d 1086; Brocco v. May Department Stores Co., 22 S.W.2d 832.

Douglas H. Jones for defendant in error.

(1) Plaintiff in error is not properly in court because of its failure to file a brief or abstract in accordance with the rules of court. Taylor v. Heart of America Hospital Assn., 2 S.W.2d 804; Rigdon v. Ferguson, 172 Mo. 49, 72 S.W. 504; State ex rel. Pedigo v. Robertson (Mo. Sup.), 181 S.W. 987; Harding v. Bedoll, 202 Mo. l. c. 629, 100 S.W. 638; State ex rel. C. R. I. & P. v. Smith, 272 Mo. 446, 72 S.W. 692; Leach v. Mosher, 286 S.W. 134; Swearingen v. Lora, 293 S.W. 133; State ex rel. Wallace v. Lincoln, 274 S.W. 677; Russow v. City of Rich Hill, 30 S.W.2d 983; Winchester v. Winn, 29 S.W.2d 188. (2) Only matters appearing upon the record proper can be considered in a writ of error and the judgment of the circuit court must be affirmed. Eubanks v. Missouri Nat. Life Ins. Co., 24 S.W.2d 715; Charlsworth v. Jacob, 24 S.W.2d 671; Brocco v. May Department Stores Co., 22 S.W.2d 832; Macon v. P. S. C., 266 Mo. 484, 181 S.W. 396. (3) A liberal construction should be given to the Compensation Act. Span v. Jackson, 16 S.W.2d 190; Betz v. Columbia Telephone Co., 24 S.W.2d 224. (4) There are no "findings of fact" by the Commission in this case; and therefore the circuit court was not bound by any findings. Cotter v. Valentine Coal Co., 14 S.W.2d 660. (5) The circuit court has power to reverse the commission; and its judgment should be sustained. Woods v. American Coal & Ice Co., 26 S.W.2d 144; Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470; Cotter v. Valentine Coal Co., 14 S.W. 660; State ex rel. Brewen-Clark Co. v. Missouri Workmen's Compensation Commission, 8 S.W.2d 897; Brocco v. May Department Stores Co., 22 S.W.2d 832; Howes v. Stark Bros. Nurseries & Orchards Co., 22 S.W.2d 839; Laumaier v. Laumaier, 271 S.W. 481; Allen v. Allen, 14 S.W.2d 686; Commerce Trust & Savings Bank v. Schuler, Sheriff, 27 S.W.2d 492. (6) The findings of the Commission were not supported by any facts and therefore the judgment of the circuit court reversing the same is correct. Authorities cited under Point 5. (7) The Statute of Limitations is not involved in this case. Wearen v. Woodson (Mo. App.), 268 S.W. 648; National Bank of Commerce v. Laughlin (Mo. Sup.), 264 S.W. 706; Schrabauer v. Schneider Engraving Co., 25 S.W.2d 529.

SUTTON, C. Haid, P. J., Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

--This is an action for compensation under the Workmen's Compensation Act. Plaintiff was an employee of the defendant. His left hand was injured, and blood poisoning developed so that amputation became necessary. The hand was amputated about an inch above the wrist. The compensation commission found that "the injury resulting in the loss of plaintiff's hand was not the result of an accident arising out of and in the course of his employment," and denied plaintiff compensation. The circuit court, on appeal, reversed the award of the commission, and entered judgment for plaintiff, awarding him compensation and expenses incurred for medical aid. To reverse this judgment the defendant brings the case here by writ of error, sued out long after the lapse of the judgment term.

Plaintiff questions the jurisdiction of this court to review the case upon writ of error, and asks that the writ be dismissed, for the reason that the compensation act provides for review by appeal only. In this we think the plaintiff is clearly right. Section 44 of the compensation act (Sec. 3342, R. S. 1929) provides as follows: "An appeal from the circuit court shall be allowed the same as in civil actions, and all appeals to the circuit and appellate courts shall have precedence over all other cases except election contests." The proceedings under the compensation act are purely statutory. The act is special and entirely out of the course of the common law, and the code of civil procedure is not applicable thereto. It is a code unto itself. The rights of the parties and the manner of procedure must be determined by the provisions of the act. It follows as a matter of course that the reviewing remedy provided by the act is exclusive. [De May v. Liberty Foundry Co. (Mo.), 37 S.W.2d 640; State ex rel. May Department Stores v. Haid (Mo.), 38 S.W. 44; Birmingham Drainage District v. C. B. & Q. R. Co. (Mo.), 202 S.W. 404; Buschling v. Ackley, 270 Mo. 157, 192 S.W. 727; State ex rel. Hancock v. Spencer, 166 Mo. 279, 65 S.W. 984; State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905; State ex rel. Prescott Laundry Co. v. Missouri Workmen's Compensation Commission (Mo.), 10 S.W.2d 916.]

Moreover it is evident, on the face of the compensation act, that it was the intention...