Eula M. Fielder v. Production Credit

Bennie and Eula Fielder, husband and wife, performed services as janitor and janitress at the offices of Production Credit Association in Kennett, Missouri, from April 1, 1964 until April 3, 1965, on which latter date Mrs. Fielder fell and was injured. The Division of Workmen's Compensation entered an award declaring 65-year-old Eula had sustained permanent total disability as the result of the accident, and ruled Production Credit Association and its insurer, Sentry Insurance Company, liable for necessary medical aid in the amount of $818.29, for continuing medical care and treatment, and for the payment of compensation to Mrs. Fielder in the sum of $16 per week for 300 weeks and thereafter the sum of $18 per week for the remainder of her life. This award was affirmed on review by the Industrial Commission of Missouri, and its final award was affirmed upon appeal by the Circuit Court of Dunklin County. Production Credit Association and its insurer, in appealing from the circuit court judgment, complain: ""I. The overwhelming weight of the evidence shows that Eula Fielder was not an employee of Production Credit Association. II. The Workmen's Compensation Referee erred by admitting hearsay testimony which was not admissible nor binding upon Production Credit Association. III. The disability award by the Industrial Commission is contrary to the overwhelming weight of the evidence."" Respondent's motion to dismiss the appeal or affirm the judgment per Rule 83.09 1 poses our initial onus. With accuracy respondent says appellants' brief does not contain ""a fair and concise statement of the facts without argument"" [Rule 83.05(a) (2) and (c) ], the ""points relied on,"" (supra) in haec verba, do not undertake to show ... wherein and why"" the complained of actions were erroneous [Rule 83.05(a) (3) and (e); Bowers v. Spinaio, Mo. App., 421 S.W.2d 790, 791(3)], and the statement of facts and argument in the brief often omit ""specific page references to the transcript on appeal"" as required by Rule 83.05(a) (4) and (d). We note, sua sponte, that while Rule 83.05(a) (4) directs ""all authorities discussed in the argument shall be cited under 'Points Relied On,"" appellants include twelve citations of authority in their brief under ""Argument"" which do not appear in their points. It is an eternal source of wonderment why counsel will accept a client's trust to appeal a cause and chance its banishment and accompanying embarrassment by noncompliance with the simple procedures prescribed by the Supreme Court. The compulsory verb ""shall"" is copiously employed throughout Rule 83.05, but Rules 83.09 and 83.24 were seemingly penned stilo inverso to permit modification of the rules if Justice requires or to facilitate Disposition of cases on their merits. Unless infraction of the rules be so gross as to incite incensement, the trend of appellate courts is toward tolerance. Of course, solicitude for the errant brief scribe is unjust to counsel who labor to observe the rules. Nevertheless, our primary concern is with the cause of the litigants and we reluctantly in this instance overrule respondent's motion.