ON MOTION FOR REHEARING. Plaintiff's counsel have filed a lengthy motion for rehearing in his behalf. As, in their original briefs, they strongly stress the failure of defendant employer to appeal from the award made by the Referee (the Commission never having made an award on review), and now urge that by reason of the failure of defendant employer to appeal from the award and of the failure of the claimant (plaintiff in the instant case) to appeal, the defendant in the instant suit is firmly and conclusively bound under the doctrine of res adjudicata by the alleged ruling of the Referee that the Workmen's Compensation Commission had no jurisdiction to hear and determine the issues. They also strongly condemn the defendant employer for its alleged offense in persuading the Referee to hold as he did, and for its failure to admit on the hearing before the Referee the existence of the relationship of master and servant, and that the accident arose out of the employment and to have had the matter there disposed of on its merits.
Plaintiff's counsel quote what they claim to have been extracts from the employer's answer in the case before the Referee. They blandly reach the conclusion that defendant is estopped in the instant case from asserting that the accident, complained of, brought it into that class of cases cognizable only before the Workmen's Compensation Commission and that, therefore, the circuit court was without jurisdiction to hear and determine the instant case because of the language of Section 3301, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 3301, p. 8232) which excludes from the employee all other rights and remedies and provides for the release of the employer from all liability other than that imposed by the Workman's Compensation Law.
In respect to the alleged injurious consequences to defendant employer, growing out of its failure to appeal from the ruling made by the Referee of the Workmen's Compensation Commission, plaintiff's counsel are in egregious error because it had no right to appeal. The award was that claimant was not entitled to compensation. Therefore, the award was in favor of the defendant employer and against the claimant. The right of appeal is conferred only by statute. How could the defendant employer be aggrieved by a decision in its favor? The law is well settled, that a party, who necessarily could not be aggrieved by a verdict in his own favor, has no right of appeal, and we are surprised at the attitude of plaintiff's counsel in their tenacious insistence that the employer's failure *Page 884 to appeal when the award thus made by the Referee, after hearing the claim, has resulted in such a tying up by the ropes of resadjudicata and estoppel as to prevent defendant in the instant case from asserting its legitimate defenses. [McClain v. Kansas City Bridge Co. (Mo. Sup.), 88 S.W.2d 1019; Long Mercantile Co. v. Saffron (Mo. App.) an opinion of this Court handed down May 4th, 1937, and not yet reported.
The claimant was the only one of the litigants who had the right to appeal and he failed to do so, but instead, on January 17, 1931, the day following the promulgation of the award, began the instant suit based on the charge of negligence against the defendant in the circuit court.
The dates of the occurrences are somewhat significant and are as follows:
Date of accident, November 11, 1930.
Date of hearing by Honorable Edward C. Friedwald, Referee of the Missouri Workmen's Compensation Commission, January 14, 1931.
Date of the award of no compensation. January 16, 1931.
Date of the institution of this suit in the circuit court. January 17, 1931.
It does not appear that claimant made any effort to have his claim heard in review by the Commission as he might have done under the provisions of Sections 3340, 3341, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., secs. 3340, 3341, pp. 8273, 8274) and seemingly contented himself with the ruling of the Referee and also, disdaining to appeal, immediately on the next day, began his present suit in the circuit court.
The record in the instant case discloses that the defendant employer, in recognition of the duty imposed on it by the provisions of Sections 3311. Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 3311, p. 8246) furnished its own regularly employed physician, Dr. Hennerich, to treat plaintiff and that the latter received and accepted such medical treatment regularly from the 12th day of November, 1930 (the day following the "accident") for several weeks thereafter.
There is nothing in the record in the instant case showing what answer, if any, the defendant filed while the plaintiff's claim was pending before the Workmen's Compensation Commission, and the alleged excerpt therefrom set out by plaintiff's counsel as indicating a denial of the fact that the claim of plaintiff was one falling under the jurisdiction of the Workmen's Compensation Law, counts for nothing. It will not be seriously contended by any one, we trust, but that on appeal of any case, the reviewing court must confine its attention to the record brought up in that particular case. The only part of the record made in the case heard by the Referee, which became a *Page 885 part of the record in the instant case, was the "Award on hearing" by the Referee set out in our original opinion, which was signed by the Referee and the Assistant Secretary of the Commission, and this was offered and put in evidence by the plaintiff in the instant case.
The curtain is partially lifted in respect to the testimony given by the plaintiff, who was interrogated at length, particularly on cross-examination, as to the testimony he gave at the hearing before the Referee of the Commission, which is also set out in our original opinion, and it is apparent that there is a radical dissimilarity between the testimony which was given before the Referee and that given in the trial of the instant case in the circuit court.
We have no hesitation in saying that if the testimony adduced in the instant case in the trial court had been the same as that adduced at the hearing before the Referee, then the ruling of the Referee to the effect that the accident resulting in the employee's injuries, did not arise out of as well as in the course of his employment, was clearly wrong. But, of course, we have no knowledge as to the character and extent of the testimony adduced before the Referee, except as set out hereinbefore.
The record in the instant case shows clearly a case falling under the Workmen's Compensation law, and also that the plaintiff was entitled to compensation, and that the Workmen's Compensation Commission was the only tribunal which had jurisdiction to hear and determine the issues.
A gloomy and lugubrious prophet of the Old Testament somewhat impatiently, and, as if urged by deep vexation of soul, propounded a query which he proceeded to answer in the negative in very cryptical, disquieting and discomforting language. His query was this:
"Can the Ethiopian change his skin, or the leopard his spots?"
Jeremiah 13:23.
So may we inquire: Can a case clearly falling into that class of cases which are compensable and cognizable only by the Workmen's Compensation Commission be changed ad libitum to one cognizable by the courts of the common law by utilizing the charge of negligence? If so, the following untoward results would inevitably follow: Suppose the claimant for compensation should feel, as apparently the plaintiff in the instant case did, when he filed his claim, that he could recover more by a suit in the circuit court based on a charge of negligence against his employer, than would be awarded him as compensation by the Commission. Then he might file his claim with that tribunal and so manipulate the testimony by deleting proof of certain pivotal facts and thereby induce the Commission or the Referee to deny compensation because of a shortage of technical proof; then he immediately jumps into the circuit court with a charge of negligence *Page 886 and recovers from the jury $8000, as in the instant case, an amount largely in excess of the amount of compensation which could be awarded him. This would be, indeed, a very dangerous precedent to establish. It would tend to break down the statutes covering the Workmen's Compensation Act.
If the contention of plaintiff's counsel be upheld, it would result in a board of three members, only one of whom is required to be "learned in the law," or the Referee, as in this instance, to fix and determine in advance the jurisdiction of the circuit courts, the Courts of Appeals and the Supreme Court, leaving them no option to determine their own jurisdiction, a most humiliating position for the courts.
Plaintiff's motion for a rehearing should be, and is, overruled. Becker and McCullen, JJ., concur.