460 S.W.2d 291 | Mo. Ct. App. | 1970
In this workmen’s compensation case, Monkem Company and its insurer appeal from the Industrial Commission’s finding that they are solely liable for an award of benefits to Harvey Swager, the plaintiff, in the amount of $14,584.55. It has been stipulated that Mr. Swager was injured in an accident arising out of and in the course of his employment as an over-the-road truck driver, and that the proceeding is governed by the Missouri Workmen’s Compensation Act, Chapter 287, R.S.Mo.(1969), V.A.M.S.
At the outset, we are met with and must consider the respondents’ motion to dismiss the appeal. Notice of appeal was filed on July 8, 1969. On October 6, 1969, the trial court granted an extension of time in which to file the transcript on appeal, but there is no record indication that the appellants complied with Rule 82.19, V.A.M.R., by ordering a transcript in writing from the court reporter within 30 days after filing the notice of appeal and filing a duplicate copy of the order in the case within 15 days thereafter. Moreover, the respondents’ motion incorporates a letter written to respondents’ counsel by counsel for appellants Monkem and its insurer, in which counsel for Monkem states that he made no such written request. Relying principally on Stigers v. Harlow, Mo., 419 S.W.2d 41, respondents maintain that the appeal must be dismissed for failure to comply with Rule 82.18, since the transcript was not actually filed until November 17, 1969, 42 days after the expiration of the 90-day period limited by Rule 82.18 for filing transcripts on appeal. Appellants Monkem and its insurer have neither responded to the motion nor invoked the discretion of this court in any manner.
The rules which regulate the timely filing of transcripts on appeal have
In our view, the appellants lose nothing by the dismissal. This is a leased truck-lent employee case, factually similar to and governed by the legal principles held applicable in such cases as Dickhaut v. Bilyeu Refrigerated Transport Corp., Mo., 441 S.W.2d 54, and Patton v. Patton, Mo., 308 S.W.2d 739. Counsel for the appellants has very carefully briefed the case in this court, and we have gone over the record and counsel’s argument in some detail, but we cannot distinguish this case on appeal from the Dickhaut or Patton cases in any important respect. Bearing in mind that we are authorized only to determine whether the Commission could reasonably have made its findings and reached its result upon a consideration of all the evidence, and that we can set the Commission’s finding aside only if it is contrary to the overwhelming weight of the evidence, Dickhaut v. Bilyeu Refrigerated Transport Corp., supra, 441 S.W.2d at 56 [I]; Stroud v. Zuzich, Mo., 271 S.W.2d 549, 550-551, we conclude that, were we considering the appeal on its merits, we would affirm the Commission’s finding. For the reason noted, however, the appeal is dismissed.
. All references to statutes and rules, unless otherwise noted, are to ft.S.Mo. (1969), Y.A. M.S. and V.A.M.R.
. See, for example, Clader v. City of Neosho, 364 Mo. 1190, 193 S.W.2d 620; In re E-, Mo.App., 416 S.W.2d 678, 679-680 [2-6] ; City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257 [1-3].
. By which Rule 82.19 was amended to require that the transcript be ordered in writing from the court reporter within 30 days after the filing of the notice of appeal and that a duplicate copy of the written order be filed in the case within 15 days thereafter. The text of the Supreme Court’s order appears 349 S.W.2d XXI, and 18 J.Mo.Bar 81.