State ex rel. May Department Stores Co. v. Haid

• Decision Date: 07 April 1931
• Docket Number: 30228
• Parties: The State ex rel. May Department Stores Company and Ocean Accident & Guarantee Corporation v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

38 S.W.2d 44

327 Mo. 567

The State ex rel. May Department Stores Company and Ocean Accident & Guarantee Corporation v. George F. Haid et al., Judges of St. Louis Court of Appeals

No. 30228

Supreme Court of Missouri

April 7, 1931

Alternative writ quashed.

Jones Hocker, Sullivan & Angert, J. C. Sheppard and James C. Jones Jr., for relators.

(1) Mandamus is proper remedy to compel court of appeals to reinstate and determine a cause upon its merits when that court has erroneously refused to consider the merits of the cause because no bill of exceptions was filed in the circuit court. State ex rel. Modern Woodmen v. Broaddus, 239 Mo. 359; State ex rel. Field v. Ellison, 277 Mo. 46; State ex rel. Bayha v. Phillips, 97 Mo. 346; State ex rel. v. McElhinney, 246 Mo. 45; State ex rel. v. Broaddus, 210 Mo. 1; State ex rel. v Grimm, 220 Mo. 483; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Trimble, 303 Mo. 284. (2) No bill of exceptions is necessary in the circuit court on appeal from the award of the Workmen's Compensation Commission. The jurisdiction of the circuit court on such appeals is revisory or appellate only, and the questions whether there was sufficient competent evidence at the hearing before the commission to sustain the award of the commission, or whether the facts found by the commission support the award, are reviewable in the Court of Appeals on the record certified to the circuit court by the commission. Sec. 44, Laws 1927, p. 490; Quincy & Palmyra Railroad Co. v. Taylor, 43 Mo. 35; Wilber v. England, 216 N.W. 852; Swanson v. Latham & Crane, 101 A. 493; Welder v. Library Co., 139 A. 644; Maryland Cas. Co. v. Industrial Commission, 266 P. 12; Willis v. Mining Co., 190 P. 124; Lindemann v. Kopczynski, 144 N.W. 196; Chaflin v. Am. National Bank, 65 N.W. 1056.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) The evidence taken before the commission constitutes no part of the record proper of the circuit court from which this appeal was taken, but might only be made and become a part of that record, for the purpose of appellate review, by bill of exceptions. State ex rel. v. Merrin, 159 Mo. 655; Fruin v. O'Malley, 241 Mo. 250; Bateson v. Clark, 37 Mo. 37; Grain Co. v. Britton, 202 Mo.App. 591; City of Macon v. Public Service Comm., 266 Mo. 484. (2) If no motions for new trial or bill of exceptions were necessary in the case, then the plaintiffs failed to take their appeal in time, and the Court of Appeals was without jurisdiction to hear and determine the case at all. Warren v. Lead & Zinc Co., 255 Mo. 138; 3 C. J. 1053-4; Smith v. Smith, 48 Mo.App. 612.

OPINION

Seddon, C.

This is an original proceeding in mandamus, commenced in this court on February 1, 1930, wherein we granted our alternative writ, after due consideration of the relators' petition or application therefor. The proceeding has been twice argued to this court, sitting en banc. Upon the final hearing and submission of the proceeding, the Court en Banc ordered the writer of this opinion, as a commissioner of the court, to sit with the Court en Banc, and the cause was assigned to the writer for the preparation of an opinion.

The relators seek the award and issuance of our peremptory writ of mandamus to compel the respondents, the judges of the St. Louis Court of Appeals, to hear and determine upon the merits an appeal, taken by relators to the said Court of Appeals, in a certain cause or proceeding under the Workmen's Compensation Act of this State, entitled "Catherine Brocco, widow of John Brocco, deceased, Respondent, vs. May Department Stores Company (Employer), and Ocean Accident and Guarantee Corporation (Insurer), Appellants," being cause No. 20812 upon respondents' docket, and to require the respondents "to adjudicate and determine whether there was sufficient competent evidence in the record certified to the Circuit Court of the City of St. Louis by the Workmen's Compensation Commission, and made a part of the abstract of the record filed by the relators in the St. Louis Court of Appeals in said cause, to sustain the final award of the Missouri Workmen's Compensation Commission" in said cause or proceeding. The respondents, by opinion filed on January 7, 1930, refused to adjudicate and determine the aforesaid compensation proceeding upon the merits, giving as their reason for such refusal that the evidence had and taken before the Workmen's Compensation Commission, and returned by the commission and filed in the Circuit Court of the City of St. Louis, had "not been preserved through (by) a bill of exceptions kept alive by a motion for a new trial," by reason of which respondents concluded that they "are unable to pass upon the assignments of error brought here by appellants," and that there was "nothing before us for review, except the record proper, and that the evidence adduced before the (Workmen's Compensation) Commission is not a part thereof;" wherefore, respondents affirmed the judgment of the circuit court reversing the final award of the Workmen's Compensation Commission in said compensation proceeding. [Brocco v. May Department Stores Co. et al., 22 S.W.2d 832.]

The respondents, by way of return to our alternative writ, demur to the relators' petition for the writ, upon the ground that the petition does not state facts sufficient to entitle relators to the relief prayed, and respondents, therefore, move that the alternative writ be quashed. Such being the status of the pleadings herein, we must look to relators' petition for the issuable facts. [State ex rel. v. Beals, 24 S.W.2d 629.] The facts are thus stated in relators' petition:

On May 25, 1927, and prior thereto, one John Brocco was an employee of relator, May Department Stores Company, in the city of St. Louis, and was within the operation of the Missouri Workmen's Compensation Act, and, while so employed, said John Brocco died on the 28th day of May, 1927.

On July 2, 1927, Catherine Brocco, the dependent widow of the said John Brocco, filed her claim for compensation under the Workmen's Compensation Act with the Workmen's Compensation Commission. Said claim came on for hearing before Alroy S. Phillips, one of the members of the Workmen's Compensation Commission, and on the 18th day of August, 1927, said Alroy S. Phillips made a finding and award in favor of the said Catherine Brocco, and against the relators, under said Compensation Act, for an aggregate sum of $ 7,271.

Thereafter, and within the time and in the manner prescribed by the Workmen's Compensation Act, relators applied to the full Commission for a review of the finding and award of the said Alroy S. Phillips in favor of the said Catherine Brocco, as aforesaid, and upon a final hearing before the full Commission, said Commission, on the 7th day of March, 1928, made and entered its findings in favor of relators, and against the said Catherine Brocco, and rendered a final award, denying compensation to the said Catherine Brocco, under the Workmen's Compensation Act, on account of the death of the said John Brocco.

From the findings and final award of the Compensation Commission, as aforesaid, the claimant, Catherine Brocco, duly appealed to the Circuit Court of the City of St. Louis, and upon notice of said appeal, the Compensation Commission, in conformity with Section 44 of the Compensation Act, returned to the Circuit Court of the City of St. Louis, under its certificate, all the documents and papers on file in the matter, together with a transcript of the evidence introduced at the hearing before the Compensation Commission, and the findings and final award of said commission.

Upon the hearing of said cause in the Circuit Court of the City of St. Louis, that court, on October 4, 1928, rendered its decision and judgment, reversing the findings and final award of the Workmen's Compensation Commission, on the grounds (a) that the facts found by the commission did not support the award, and (b) that there was not sufficient competent evidence in the record to warrant the making of such award.

Thereafter, and within four days after the rendition and entry of said judgment of the circuit court, and during the same term of said court, the relators filed their motion for a new trial and for a rehearing of said cause, which said motion was overruled by the circuit court on the 17th day of December, 1928, and during the December, 1928, term of said court.

And thereupon, and on the 29th day of December, 1928, and during the December (1928) term of said court, relators filed their affidavit for an appeal in said cause, and an appeal was allowed relators to the St. Louis Court of Appeals by the circuit court.

Relators perfected their appeal in said cause to the St. Louis Court of Appeals, and said cause was thereafter entered and docketed in the St. Louis Court of Appeals as "Catherine Brocco, Widow of John Brocco, deceased, Respondent, v. May Department Stores Company, a corporation (Employer), and Ocean Accident & Guarantee Corporation (Insurer), Appellants," and was No. 20812 on the docket of said court.

No bill of exceptions was filed in the circuit court by relators in said cause, but the same record which had been certified to the circuit court by the Workmen's Compensation Commission was embodied in and made a part of relators' abstract of the record filed in the St. Louis Court of Appeals in said cause, including, in addition thereto, the judgment of the circuit court, motion of relators for a new trial and for a rehearing, the order of the circuit court overruling said motion, the affidavit of relators for an appeal, and the allowance by the circuit court of such appeal to the St. Louis Court of Appeals in said cause.

Relators assigned as error in the St. Louis Court of...