The Workmen's Compensation Act provides for a review of the Commission's awards by the Circuit Court and that an "Appeal from the Circuit Court shall be allowed the same as in civil actions." Section 25, Act 319 of the Acts of *Page 793 1939. The initiated Compensation Act which became effective December 3, 1948, has the same provisions. Jurisdiction was given to the Circuit Court and not to the Chancery Court in actions arising under the Workmen's Compensation Act. Such actions should therefore conform to the procedure of the Circuit Court which requires a motion for a new trial to review an error not apparent on the face of the record.
What is the practice in civil actions arising in the Circuit Court? It has been so often said that it has become axiomatic that on appeals to the Supreme Court from the Circuit Court the motion for a new trial is essential in all cases to review an alleged error not apparent from the face of the record, and by the face of the record is meant the judgment sought to be reviewed and the pleadings upon which it was based. It does not include the testimony heard at the trial. Appellant begins his brief by saying that the testimony does not establish the fact that claimant's death was caused by the injuries sustained. In other words, the facts do not support the award, and this is one of the four things which the courts may review. See Par. 3, 25 of the Compensation Act. Certainly a motion for a new trial was necessary to call this alleged error to the attention of the trial courts.
Motions for new trials serve a double purpose, the first, and of most practical importance is that it calls to the attention of the trial court an error complained of, and affords opportunity for correction by granting a new trial, if not otherwise.
The motion for a new trial simplifies the review of the case on appeal as it limits the review of the trial by the appellate court to those errors thought to be of sufficient importance to have induced an exception to some ruling of the trial court.
Now while the Compensation Act limits the matters which may be reviewed on appeal, yet there are four grounds for review, one of these being that the testimony does not support the award. *Page 794
The same reasons and the same necessity for a motion for a new trial exists in the exercise of this limited right of review as exists in other cases, and this right of review, limited as it is, may be exercised as in other circuit court cases, which is by filing a motion for a new trial, calling the court's attention specifically to any alleged error. Common fairness to the trial court suggests this should be done and the statute so provides.
In the chapter on Workmen's Compensation Acts, 71 C.J., 1185, p. 1244, it is said: "Although a motion for a new trial and exception to its refusal may be necessary to raise and preserve the question as to the sufficiency of evidence to support an award, and, in the absence of a motion for a new trial in the court below, an award cannot on appeal be changed with reference to testimony that was not made the basis of a finding below, nor may other questions involving an examination of conflicting evidence presented below be considered on appeal from the original proceedings, in the absence of a motion for a new trial therein, questions as to absence of evidence to sustain a judgment in compensation proceedings may be considered on review where such questions have been presented below by a motion for new trial." Among cases cited to support the text quoted is that of Brocco v. May Dept. Stores Co., 22 S.W.2d 832.
The case of State v. Haid, 327 Mo. 567, 38 S.W.2d 44, cited in the majority opinion is a commission of the Brocco case, supra, which it cites and does not overrule, and if it be true that the Missouri Compensation Act permits appeal without a motion for new trial, that practice is opposed to the spirit and genius of our practice, which requires a motion for a new trial to review an error which does not appear from the face of the record.
It is therefore my opinion, in which Justice McFADDIN concurs, that only errors may be reviewed which are apparent from the face of the record, in the absence of a motion for a new trial, and as none appear on the face of the record, the testimony being no part of the record proper, the appeal should be dismissed. *Page 795