State ex rel. Randall v. Shain

• Citation: 108 S.W.2d 122,341 Mo. 201
• Parties: State of Missouri at the relation of George E. Randall and United States Fidelity & Guaranty Company, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, as Judges of the Kansas City Court of Appeals
• Decision Date: 26 August 1937
• Court: United States State Supreme Court of Missouri

108 S.W.2d 122

341 Mo. 201

State of Missouri at the relation of George E. Randall and United States Fidelity & Guaranty Company, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, as Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

August 26, 1937

Record quashed.

Hook & Thomas and Philip J. Close for relators.

(1) Under the decisions of the courts and the provisions of the statutes, the commission may hear or refuse to hear additional testimony on review, as it in its sound discretion chooses. Its fair discretion cannot be interfered with by the courts. The opinion of the Kansas City Court of Appeals is in conflict with and contrary to the decision of this court in the case of Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 575, which is the last controlling decision, and in conflict with the decision of the St. Louis Court of Appeals in the case of Hohlstein v. St. Louis Roofing Co., 49 S.W.2d 226, as well as the express provisions of Section 3341, Revised Statutes 1929, in that it holds the Compensation Commission had no authority to hear and consider the additional evidence introduced at the hearing on review. Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 575; Hohlstein v. St. Louis Roofing Co., 49 S.W.2d 226; Brocco v. May Department Stores, 55 S.W.2d 322; Sec. 3341, R. S. 1929. (2) Under the decisions the testimony before one commissioner at the hearing on review was competent to support the award because the claimant waived the failure of the other two commissioners to attend the hearing by not making timely demand for their presence or saving proper exception to proceeding without them, and claimant could not assert for the first time on appeal that the testimony taken on review was incompetent because of the absence of two commissioners. (a) The opinion of the Kansas City Court of Appeals is in conflict with and contrary to the cases of Ancona Realty Company v. Frazier, 41 S.W.2d 820, and Ross v. Grand Pants Co., 145 S.W. 410, the last controlling decisions of this court, in that it holds the claimant did not waive the absence of two commissioners at the hearing on review by failing to make timely demand for their presence, and that the testimony so heard on review by one commissioner was incompetent to support the final award on review because the full commission did not hear the testimony. (b) The opinion fails and refuses to follow the case of Scott v. Missouri Pacific Railroad Co., 62 S.W.2d 834, the last controlling decision of this court, and is in direct conflict with the cases of Lamkins v Copper-Clad Malleable Range Corporation, 42 S.W.2d 941 and Schaefer v. Lowell-Krekeler Grocery Co., 49 S.W.2d 209, decisions of the St. Louis Court of Appeals, in that it holds that even though the claimant objected only to the hearing of certain testimony on review, she could enlarge her objections on appeal and assert for the first time that the objection was directed to the lack of attendance of two of the commissioners. Ancona Realty Co. v. Frazier, 41 S.W.2d 820; Ross v. Grand Pants Co., 145 S.W 410; Scott v. Railroad Co., 62 S.W.2d 834; Lamkins v. Copper-Clad Malleable Range Corp., 42 S.W.2d 941; Schaefer v. Lowell-Krekeler Grocery Co., 49 S.W.2d 209; Waring v. Met. Life Ins. Co., 39 S.W.2d 418; Beck v. Kansas City Pub. Serv. Co., 48 S.W.2d 213. (3) Under the decisions and provisions of the statutes, the appellate court cannot make a finding of fact and has no jurisdiction to direct a verdict in favor of the claimant when none had been made by the commission. The opinion and order of the Kansas City Court of Appeals is in conflict with and contrary to the cases of Teague v LaClede-Christy Clay Products Co., 52 S.W.2d 880, and Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 126, the last controlling decisions of this court, and is in conflict with the case of Jones v. Century Coal Co., 46 S.W.2d 196, a decision of the St. Louis Court of Appeals, and the case of Simpson v. New Madrid Stave Co., 52 S.W.2d 615, a decision of the Springfield Court of Appeals, and the express provisions of Section 3342, Revised Statutes 1929, in that the court makes its own finding of fact that the employee's death resulted from an injury sustained during the course of his employment and directs an award in favor of the claimant where none had been made by the commission, and when in fact the commission's award was in favor of relators. Teague v. LaClede-Christy Clay Products Co., 52 S.W.2d 880; Schulz v. Great A. & P. Tea Co., 56 S.W.2d 126; Jones v. Century Coal Co., 46 S.W.2d 196; Simpson v. New Madrid Stave Co., 52 S.W.2d 615; Wilson v. Brownfield Const. Co., 74 S.W.2d 377; Russell v. Ely & Walker D. G. Co., 60 S.W.2d 44; Burgstrand v. Crowe Coal Co., 62 S.W.2d 406; Sec. 3342, R. S. 1929.

George V. Aylward, Ralph M. Russell and Thomas E. Joyce for respondents.

(1) The decisive matters in the opinion of the Kansas City Court of Appeals, interpreting the Workmen's Compensation Law, are points of law upon which this court has not passed upon under a like similar or analogous state of facts, and therefore there is no conflict. Where, on certiorari, it appears that the decision of the Court of Appeals complained of was not in conflict with any prior ruling of the Supreme Court, regardless of whether the decision of the Court of Appeals was right or wrong, this opinion cannot be reviewed in certiorari proceedings, and the preliminary writ of certiorari should be quashed. State ex rel. Arel v. Farrington, 272 Mo. 156, 197 S.W. 912; State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756. (2) In certiorari proceedings this court is limited to the facts as found in the opinion of the Kansas City Court of Appeals. State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W.2d 63; State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743; State ex rel. Ely-Walker D. G. Co. v. Cox, 335 Mo. 596, 73 S.W.2d 743; State ex rel. Hauck Bakery Co. v. Haid, 333 Mo. 76, 62 S.W.2d 400; State ex rel. Sei v. Haid, 332 Mo. 1061. 61 S.W.2d 950; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372. (3) In certiorari proceedings the determination of errors is limited to the findings of a conflict between the Court of Appeals' opinion and the latest ruling opinion of this court on the same subject, either as to general principles of law announced, or as to a ruling under the same or similar state of facts. State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W.2d 420; State ex rel. Met. Life Ins. Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469; State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743; State ex rel. Roberts v. Trimble, 316 Mo. 354, 289 S.W. 796; State ex rel. N.W. Natl. L. Ins. Co. v. Trimble, 323 Mo. 458; State ex rel. Gatewood v. Trimble, 333 Mo. 211, 62 S.W.2d 757. (4) The proper construction of a statute is as much within the province of a Court of Appeals as of Supreme Court, and the opinion of a Court of Appeals construing a statute cannot be questioned by certiorari, unless the Supreme Court has, on similar facts, given the same statute a different construction, which the Court of Appeals refuses to follow. State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondents insist that the writ of certiorari issued in this case should be dismissed because relators failed to comply with rules 11, 12, 13 and 14 of this court, in that relators failed to serve respondent, or file with the clerk of this court a complete abstract of the record in the time required by the said rules. The case was set for hearing on September 9, 1936. A motion to dismiss was filed by respondents for failure to comply with the rules above mentioned. Thereafter, and before the date set for the hearing, relators filed a motion asking that the case be continued to the January Call. This motion was sustained by this court, it appearing from the record that respondents had consented thereto. The cause was heard on January 12, 1937. Relators fully complied with all of our rules, if we consider January 12 as the hearing date. Respondents, however, insist that the cause should be dismissed because relators were in default at the September Term. Rule 16 of this court reads:

"If any appellant in any civil case fails to comply with the rules numbered 11, 12, 13 and 15, the court, when the cause is called for hearing, will dismiss the appeal, or writ of error; or, at the option of the respondent continue the cause at the cost of the party in default."

Since this court continued the case, with respondents' consent, to the January Call, before it was called for hearing on September 9, it cannot be said that relators were in default. It appears from the files in this case and the briefs filed by respondents that they were in no way prejudiced in the preparation of their brief, etc., for the hearing of the case at the January Call. The motion to dismiss is, therefore, overruled. On this point see Smith v. Ohio Millers' Mut. Fire Ins. Co. (en banc), 320 Mo. 146, 6 S.W.2d 920, l. c. 927 (2).

Relators seek, by this writ of certiorari, to quash the record and opinion of the Kansas City Court of Appeals in the case of Pearson v. Randall et al., reported in 91 S.W.2d 116. Relators contend that respondents' opinion is in conflict with controlling decisions of this court.

The case originated before the Workmen's Compensation Commission, where the plaintiff, Opal V. Pearson, instituted proceedings to recover compensation for the death of her father, who it was alleged was fatally injured while engaged in work for the defendant, George E. Randall. We learn...