Stogsdill v. St. Louis-S.F. Ry. Co.

• Decision Date: 09 July 1935
• Docket Number: No. 32222.,32222.
• Citation: 85 S.W.2d 447
• Parties: HOMER STOGSDILL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

85 S.W.2d 447

HOMER STOGSDILL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 32222.

Supreme Court of Missouri.

Division One, July 9, 1935.

Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.

REVERSED.

J.W. Jamison and Phil M. Donnelly for appellant.

The court erred in overruling defendant's demurrer offered at the close of plaintiff's evidence. Cox v. Ry. Co., 61 S.W. (2d) 965; Shanks v. Ry. Co., 239 U.S. 558; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 478, 34 Sup. Ct. 648, 58 L. Ed. 1051; Erie Railroad Co. v. Welsh, 242 U.S. 306, 37 Sup. Ct. 118, 61 L. Ed. 319. It is necessary to show further that "the employee, at the time of the injury, was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it." Shanks v. Ry. Co., supra; B. & O.S.W. Ry. Co. v. Burtch, 263 U.S. 540, 68 L. Ed. 436; New York, N.H. & H. Ry. Co. v. Bezue, 284 U.S. 415, 76 L. Ed. 370; Chicago & E.I. Ry. Co. v. Industrial Comm., 284 U.S. 296, 76 L. Ed. 304; Benson v. Railroad Co., 69 S.W. (2d) 656.

Sizer & Lockmiller for respondent.

Upon a failure by appellant to meet the time requirement of Section 1028 mentioned, respondent becomes entitled, upon proper motion therefor in the appellate court, to an affirmance of the judgment, unless good cause to the contrary be shown. Sec. 1027, R.S. 1929; Ziefle v. Seid, 137 Mo. 538, 38 S.W. 963; Long v. Hawkins, 178 Mo. 103, 77 S.W. 77; State ex rel. Gilman v. Robertson, 264 Mo. 671, 175 S.W. 610; McCollister v. Ry. Co., 129 Mo. App. 321, 108 S.W. 613; Laswell Land & Lumber Co. v. Langdon, 204 S.W. 814. The statute and Supreme Court Rule 28, therefore, make it necessary for the appellant to file within the required time either a transcript or a certificate of judgment. Failure to file a transcript in time may be excused; but, if a transcript is not filed in time, then a certificate of judgment must be filed in time, and there is no excuse named either in the statute or in the court rules for failing so to do. Ziefle v. Seid, 137 Mo. 543, 38 S.W. 963; Kenner v. Doe Run Lead Co., 42 S.W. 684; Meyers v. Phoenix Ins. Co., 83 S.W. 481; Little Rock Trust Co. v. Railroad Co., 93 S.W. 948.

FERGUSON, C.

Plaintiff was employed by the defendant railway company as a laborer at defendant's "coal chutes" at Newburg, Missouri. At these "chutes" the storage bins for coal are elevated some sixty feet, or more, above the level of the ground and the adjacent railroad tracks. Defendant's locomotive engines, engaged in both intrastate and interstate traffic, are supplied with coal at these "chutes." The coal in the storage bins is conveyed, "by gravity," from the bins to the engines through "a coal chute apron." The evidence does not disclose that it was any part of plaintiff's duties to assist in, or that he had anything to do with, the "coaling" of the engines. Coal is elevated and "dumped" into the storage bins or chutes by means of a "hoist" by which a "bucket," which "holds about two tons of coal," is raised and lowered. The "bucket" is "automatically loaded with coal" at the bottom of the shaft, in which it operates, and when raised to the top of the shaft "automatically dumps" the coal into the storage bins. "A large coal oil engine, installed nearby, connected by belts and pulleys with the hoist" supplies the motive power for operation of the hoist machinery. One, Borders was the foreman "in charge of the coal chutes." According to plaintiff's evidence, on the morning of September 7, 1929, Borders, the foreman, ordered plaintiff to "oil the slides and wheels or rollers" of the hoist and while plaintiff was so engaged Borders started the hoist machinery in operation and plaintiff was injured. Plaintiff's injuries consisted of the loss of part of each of the fingers of his right hand and a part of the thumb and two fingers of the left hand. He brought this action, for damages for the injuries so received, under the Federal Employers' Liability Act. On a trial in the Circuit Court of Webster County plaintiff had verdict and judgment for $15,000. On October 1, 1930, defendant's motion for new trial was overruled, its affidavit for an appeal filed and an order granting defendant an appeal to this court entered.

Under Section 1027, Revised Statutes 1929, the appeal was returnable to the then April Term, 1931, of this court and Section 1028, Revised Statutes 1929, requires that "in cases of appeals," "appellant ... shall cause to be filed in the office of the proper appellate court ... fifteen days before the first day of the term of such court, ... a perfect transcript of the record and proceedings in the cause, or, in lieu of such transcript, a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal." Though as stated the appeal was returnable to our then April Term, 1931, appellant did not file, or cause to be filed, fifteen days before that term, as required by Section 1028, supra, either the transcript or certificate therein mentioned. Appellant caused a bill of exceptions to be prepared and submitted it to plaintiff's attorneys, Sizer and Gardner, who approved same whereupon appellant filed its bill of exceptions in the office of the clerk of the Circuit Court of Webster County on March 1, 1932. Neither the transcript nor the certificate mentioned in Section 1028 had been filed in this court but thereafter and on March 10, 1932, appellant filed here a certified copy of the judgment appealed from "together with the order granting the appeal" which certificate set out all the things required by Section 1028 to be shown. The April Term, 1931, of this court convened April 14, therefore March 30, 1931, was the last date for timely filing the certificate but having failed to do so appellant was thereupon in default. Section 1027 provides: "The appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section (Sec. 1028, supra), and if he fails so to do, and the respondent shall produce in court the certificate of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party in whose favor the appeal was granted and the time when the appeal was granted, such certificate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the judgment, unless good cause to the contrary be shown; and the failure of the clerk to notify the appellant, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion." Though appellant did not file the certificate here until March 10, 1932, more than eleven months after the last date, fixed by statute, that it should have been filed plaintiff did not during that interim elect to avail himself of the right given him to "produce" here the certificate mentioned in Section 1027 and file a motion to affirm and during that period examined and approved the bill of exceptions which appellant in the meantime prepared and submitted. The appeal was docketed for hearing in Division One for the September Term, 1933, and during the last week of the January, 1934, call thereof. On October 30, 1933, Division One ordered all cases set for the last week of the January, 1934, call of the September, 1933, term continued to the May Term, 1934, which order, included this case. However, at the May Term, 1934, cases in Division One were set for five days only and all other cases originally set for that term were by order of that division, including this case, continued to the September Term, 1934. Plaintiff did not during all this time file a motion to affirm. Appellant commenced the preparation of its abstract of the record and brief intending to serve and file same for the September, 1934, term to which the case had been finally continued. Our Rule 11 requires that, "Where the appellant shall, under the provisions of Section 1028,... file a copy of the judgment ... in lieu of a complete transcript, he shall deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and in a like time file ten copies thereof with our clerk," and Rule 15 requires that "appellant shall deliver to the respondent a copy of his brief thirty days before the day on which the cause is set for hearing." Our September Term, 1934, commenced September 4, 1934, and this case was set for hearing on September 11, therefore appellant should have delivered copy of his abstract and brief to respondent not later than August 12. However, during July, 1934, one of plaintiff's attorneys and defendant's (appellant's) claim agent engaged in negotiations looking to a compromise or settlement. Appellant's claim agent told plaintiff's attorney that appellant's attorney was then engaged in the preparation of its abstract and brief. Later and under date of July 27, plaintiff's attorney wrote a letter to appellant's counsel in which he mentioned the conversations with appellant's claim agent and said that the claim agent had advised him that, "you are in the preparation of your brief and if the case could be settled for a reasonable amount we could obviate a lot of work. The only serious question in this case is whether plaintiff's work was interstate and I admit that is a question which is fraught with danger from plaintiff's standpoint in view of the recent decisions of the Supreme...