Barlow v. Shawnee Investment Co. , 229 Mo. App. 51 ( 1932 )

TRIMBLE, P. J.

On December 6, 1929, plaintiff or claimant, widow of Lloyd D. Barlow, filed with the Missouri Workmen’s Compensation Commission, her claim for an award of compensation for the death of her husband, alleging that he, while an employee of the “Shawnee Credit Corporation” was killed on July 29, 1929, by accident arising out of and in the course of his employment. The referee of the Commission heard the claim and on March 25', 1930, denied the same. Application for review of said finding by the full Commission was filed on April 2, 1930, and, after same was bad, tbe full Commission on June 12, 1930, rendered its final award, including a “Finding of Facts” and “Statement of Facts and Rulings of Law,” reversing said referee’s finding and awarding compensation in tbe lump sum of $6,025.69 to “Ruth Barlow for herself and as natural guardian of Eula Margaret Kelly, tbirteen-year-old stepdaughter of deceased, tbe former to give proper bond before tbe award is paid.” Thereupon said employer, Shawnee Credit Corporation, on June 14, 1930, gave notice and appealed to tbe Circuit Court of Jackson County, Missouri, where tbe appeal came on to be beard on tbe 22nd day of July, 1930 (it being a part of tbe regular May, 1930, term of said court), and tbe same was beard and taken under advisement; and at tbe March, 1931, term (March 21, 1931), the final award of tbe Commission was affirmed and judgment was rendered by tbe Circuit Court in favor of claimant, Ruth Helen Barlow, “for herself and as natural guardian of Eula Margaret Kelly,” for tbe sum of $6,025.69 in a lump sum, with six per cent interest from July 30, 1929, amounting to $592.46 making a total of $6,618.15, against “Shawnee Investment Company, appellant,”

In due time, to-wit, on March 26, 1931, motions for new trial and in arrest were filed by tbe “Shawnee Credit Corporation, appellant.” On April 15, 1931, claimant, Ruth Helen Barlow, filed a motion to set aside the judgment and dismiss the appeal of the “Shawnee Credit Corporation” from tbe Commission to tbe circuit court, on tbe ground that the Shawnee Credit Corporation, which gave tbe notice of appeal from tbe final award of tbe Commission, was not a party to the award, and bad no interest therein.

On April 25, 1931 (being still tbe March term of that year), tbe ■“Shawnee Investment Company, employer and appellant,” filed motion in tbe circuit court to allow it to amend notice of appeal from tbe Commission to the circuit court, by changing tbe signature to said notice of appeal to “Shawnee Investment Company.” This motion tbe court, on tbe same day, April 25, 1931, overruled “for want of jurisdiction.” On the same day tbe court overruled claimant’s motion to set aside tbe judgment and dismiss tbe appeal from tbe Commission to tbe circuit court, which motion bad been filed April 15, 1931, as heretofore stated.

On the same day tbe motion was overruled, namely, April 15, 1931, the motions for new trial and in arrest which had been filed March 26, 1931, were beard and taken under advisement until the May term (June 8, 1931), when they were overruled, tbe defendant saving its exceptions. Whereupon, “Shawnee Investment Company, tbe employer appellant in tbe above entitled action” filed affidavit for appeal. The appeal was allowed and time was granted to file bill of exceptions.

Tbe original claim for compensation filed with tbe Commission on December 6, 1929, stated tbe name and address of tbe employer to be “Shawnee Credit Corporation, 416 City Bank Building, Kansas City, Missouri.” Tbe amended claim, however, gave tbe names and addresses of all employers as “Shawnee Investment Company, a Missouri Corporation (formerly Shawnee Credit Corporation, a Missouri Corporation), and Shawnee Credit Corporation, a Delaware Corporation, successor to tbe business and liabilities of Shawnee Credit Corporation, 416 City Bank Building, Kansas City Missouri.”

Tbe answer to tbe original claim was filed by tbe Shawnee Credit Corporation, and tbe amended answer thereto gave name of employer, and its address, as “Shawnee Credit Corporation, City Bank Building, Kansas City, Mo.,” and stated that the “employer and insurer deny claim for compensation because the accident did not arise out of and in the course of tbe deceased’s employment, it being an accident with which the employer had no casual connection.”

But the amended claim gave the names and addresses of all employers as “Shawnee Investment 'Company, a Missouri Corporation formerly Shawnee Credit Corporation, a Missouri Corporation) and Shawnee Credit Corporation, a Delaware Corporation, successors to the business a/nd liabilities of Shawnee Cred/it Corporation, 416 City Bank Building, Kansas City, Missouri.”

Attached to said amended claim, under the head of “Additional Statements,” were the following:

“March 30th, 1926. “Certificate of Incorporation of Shawnee Investment Company (Missouri).

“June 25th, 1929. “Certificate of Change of Name to Shawnee Credit Corporation (Missouri).

“July 29th, 1929. “Accident as reported.

“August, 1929. “Incorporation of Shawnee Credit Corporation (Delaware).

“Sept. 26th, 1929. “Transfer of assets and business, subject to liabilities from Shawnee Credit Corporation (Missouri), to Shawnee Credit Corporation (Delaware).

“Oct. 8th, 1929. “Shawnee Credit Corporation (Missouri), changes name to Shawnee Investment Company (Missouri).”

It will be observed that after the final award of the Commission was affirmed by the circuit conrt, judgment was rendered against “Shawnee Investment Company” but the motions for new trial and in arrest were made and filed by the “Shawnee Credit Corporation” and the affidavit for appeal was filed by an agent for, and the appeal was allowed to, the “Shawnee Investment Company, appellant employer. ’ ’

After the appeal reached this court and was called to our attention, it was set at the head of the December call, December 7, 1931, that being the nearest available date of “precedence” to be given it as required by Section 3342, Revised Statutes of Missouri, 1929.

Before that date was reached, however, claimant Barlow (respondent), “appearing specially and for the purpose of this motion only,” filed a motion to dismiss the appeal of the Shawnee Investment Company and to award ten per cent damages for frivolous appeal. This motion was ordered to be “taken with the case” whenever the latter was argued and assigned, which was done on the day heretofore mentioned, December 7, 1931.

The foregoing somewhat lengthy preliminary statement has been rendered necessary in order to properly consider and dispose of said motion to dismiss appeal, and to this motion we will now address ourselves.

ON Motion to Dismiss Appeal.

The first point to be disposed of is that this appeal should be dismissed for the reason that it was not taken in time. It will be observed that the judgment affirming the Commission’s final award was rendered by the circuit court at the March term (March 21, 1931), after the matters had been held under advisement from July 22, 1930, of the May term, 1930, to the March term, 1931; that on March 26, 1931 (which was within the four days allowed by Section 1005', Revised Statutes of Missouri, 1929, as one of the intervening days, March 22, 1931, was Sunday; State v. Harris, 121 Mo. 445), appellant under the name of Shawnee Credit Corporation filed its motions for new trial and in arrest. These motions were, at the same March term, April 25, 1931, heard and were by the court taken under advisement to the Mwy term, 1931 (and until June 8; 1931, thereof), when they were overruled and the appeal was thereupon taken. Since, therefore, the judgment was rendered at the March term and the appeal was not taken at the same term at which the judgment was rendered, claimant contends it was therefore too late, citing State ex rel. v. Haid, 38 S. W. (2d) 44, 54, 55. This case, however, is not like the one at bar in several important particulars. In the Haid case the judgment was rendered at the October term, 1928, at which term relators filed their motion for new trial and nothing more seems to ha/ve been done or even attempted to be done ait that term; but at the December term following, the motion for new trial was overruled and appeal taken. In that case too there was no need for a bill of exceptions nor for a motion for new trial in order to pave the way for an appeal. In the ease at bar, there was, or appeared to be, need of a motion for new trial, and for a bill of exceptions, since the court was called upon to rule upon matters which were the subjects of objection and exception and which were dehors the record until made so by a bill of exceptions and preserved by said bill and by motion for new trial.

Furthermore, unlike the Haid case, the trial court, in the case at bar, on its own motion took the ruling on the motion for new trial under advisement until the next term, at which term it was overruled and the appeal was taken. What else could the appellant employer do but to wait until the court had reached a decision on the matter? It had filed its motion at the judgment term, and had presented and argued it at that term, but the court, not being satisfied as to what should be done with the motion, took it under advisement. Matters are thus in a far different situation from what they would have been had appellant merely contented itself with filing the motion in time and then allowed the whole matter to drift along until the next term. We think this action of the court in taking the matter under advisement until the next term had the effect of carrying the cause and the taking of the appeal over to the next term the same as in the case of ordinary appeals in other cases. The Haid case mentions and clearly provides for different situations which would create exceptions to the rule therein announced, and while the situation created by the court’s action in the case at bar, in taking the matter under advisement, was not specifically mentioned, it would seem to be necessarily included in, and covered by, the exceptions that were mentioned.

We have not heretofore mentioned them, but the reasons for the necessity of a motion for new trial and a bill of exceptions in this case, or in other words the matters dehors the record calling for a bill and for such motion in order to preserve them, appear or are shown in what now follows:

Deceased Lloyd D. Barlow, thirty-five years of age, was on the 29th day of July, 1929, in the employ of the Shawnee Credit Corporation which later became the Shawnee Investment Company. Deceased was an outside collector for the company and was by it furnished with a car owned by the employer with which to travel about within certain territory and collect delinquent .accounts diie his employer. The upkeep and operating expenses of said car were paid by the employer. The latter supplied Barlow, the employee, with cards showing the names and addresses of the delinquent debtors, and the employee was required to devote all his time throughout the day to his duties. His working hours were from eight A. M., to six or seven P. M. No place was designated by the employer for the storage of the car, and consequently the employee kept the car at his own home in Kansas City, Missouri. ■ About four o’clock on the afternoon of July 29, 1929, as the employee Lloyd D. Barlow was going east on Fortieth Street in the aforesaid car furnished by the employer, alongside another car, and just after he met and almost struck a third car coming from the opposite direction, his car swerved to one side and crashed head on into a tree in the parking on the south side of Fortieth Street about midway between "Warwick Boulevard and Hyde Park Avenue. (We will discuss the competency of this evidence later.) In this block Fortieth Street slopes somewhat sharply to the east.

The bark of the tree was knocked off for about four or five feet from the ground. The car was wrecked, both the front wheels were broken, the front axle was bent, the radiator was shoved back almost to the dashboard, the front part of the engine was broken loose from the frame and rested on the left fender. The steering wheel was bent nearly double. The ear was standing on its two rear wheels and the front end of the car was resting on the car’s tie rods.

The employee was removed from the car in an unconscious condition, and was placed on the parkway. His head and legs were cut and his chest was injured. He appeared to be in great agony and kept putting his hand to his chest. He was taken to St. Luke’s Hospital and died there about noon of the following day, July 30, 1929. He never fully regained consciousness except for a few minutes at the hospital shortly after, he arrived there. At this time he roused sufficiently to recognize his wife and remarked to her that he had turned out to avoid hitting a car or to keep it from hitting him. (We will discuss the competency of this evidence later.)

In the ear was found, a leather folder belonging to deceased and which he carried with him as he made his rounds collecting. This contained eight, ten or a dozen cards belonging to the employer showing the delinquent accounts which deceased had for collection. He had made one collection, and a small amount of currency was also found, which the president of the employer company took charge of, and he it was who directed that the employee be sent to the hospital, engaged the doctors and called at the hospital that evening and the next morning.

The employer had never filed any election to accept the provisions of the Workmen’s Compensation Act in Missouri, nor had the employer taken out any insurance as required by the act, nor did it give any notice of the accident to the Commission. Nor had either the employer or employee filed any notice of rejection of the act. The officers of the employer were in Kansas City, Missouri, and the contract of employment was made in this State.

The evidence tended to show that the widow, Ruth Helen Barlow, as well as Bula Margaret Kelly, thirteen years old and stepdaughter of deceased, were both totally dependent on Lloyd D. Barlow.

In the “Statement of Facts and Rulings of Law” made by the Commission, the referee award was set aside and the following findings were made: That said employer had more than ten employees regularly employed; that it had not rejected the act, and that the Commission had jurisdiction to consider the claim; that deceased employee was in the employment of the Shawnee Investment Company, as a collector of delinquent accounts; that the employer furnished him with a ear for the purpose of making said collections, and for this purpose was furnished with cards giving names and addresses of those owing accounts, the amount each owed, etc.; that he had no definite route to go nor working hours, but worked from about eight o’clock in the morning to somewhere about eight-thirty in the evening; that the injury occurred as heretofore stated and with the result as heretofore stated, including the finding of the leather case, the cards and the one collection heretofore mentioned.

The “Statement of Facts and Rulings of Law” further stated that:

. . on July. 29, 1929, the deceased employee was in the employment of the Shawnee Investment Company. That he was a collector of delinquent accounts in Kansas City, Missouri, and Kansas City, Kansas. The employer furnished him a car for the purpose of making said collections, and although he had no definite working hours, the evidence shows that he worked from around eight o ’clock in the morning to as late as eight-thirty in the evening. The decedent was furnished with certain cards by his employer, said cards setting out the names and addresses of the accounts which he was to .collect, amount of same, etc. On July 29, 1929, about four P. M., while going along Fortieth Street between Hyde Park Avenue and Warwick Boulevard, in Kansas City, Missouri, his car crashed into a tree, and as a result of injuries therefrom, he died on July 30, 1929. Mr. Frank C. Baker, president of the Shawnee Investment Company, appeared at the scene of accident and while there he secured a .leather case in which the employee carried the necessary papers for his collections, and Mr. Baker testified that there were six, eight or ten cards of the employer’s in said case, which cards represented parties on whom the employee was to call to make collections, and also that one collection had been made that day.

“The employee had no definite routes to go over, but he simply was given the cards denoting the account she was to attempt to collect, and the route which he chose to collect same was left to him. The employer contends that claimant has failed to show that the employee was in the business of his employer at the time of the accident.

“It is the law that where an employee charged with the performance of a duty is found injured at the place where his duties may have required him to be, there is a natural presumption that he was injured in the course of, and in consequence of, the employment. [See Wahlig v. Krennig-Schlapp Grocer Co., 29 S. W. (2d) 128; Capital Paper Company v. Conner, 81 Ind. App. 547.] In the subject case, there is no direct evidence as to what Barlow was doing at the street where and at the time, he received the fatal injury; but since, as shown by the evidence, his work required him to travel in all parts of the city, the routes for his different days work being of his own choosing, and since the evidence shows that he had six, eight or ten accounts which he had not yet collected, it is a legitimate inference that the accident which resulted in the injury and death of Barlow arose out of and in the course of his employment.

“The evidence shows that the employee was, prior to the accident, afflicted with a sort of disease which would affect him in such a way that for two or three minutes he would be extremely nervous, have a blank expression on his face, etc. At such period it appears he did not have much, if any, control over his actions. The employer contends that it was one of the above attacks, which caused him to collide with the tree. However, if we concede that he did have these attacks there is no definite proof whatever that he had an attack and same resulted in the accident. A conclusion in that regard would be based purely and simply on surmise and conjecture. As this defense seems to be an affirmative defense, same falls short of proof.”

By stipulation of the parties, made before the referee at his hearing, it was agreed that the Shawnee Credit Corporation, a Missouri Corporation, on July 29, 1929, was the employer and that Lloyd D. Barlow, deceased, was in the employ of the Shawnee Credit Corporation, a Missouri corporation, on July 29, 1929; that the Shawnee Credit Corporation did not elect to come under the Missouri Workmen’s Compensation Act. It was further stipulated that “the questions at issue” are:

“1. Whether or not the employer, Shawnee Credit Corporation, was on July 29, 1929, a major or minor employer.

“2. Whether or not Lloyd D. Barlow, the employee, sustained an accidental injury resulting in his death and arising out of and in the course of his employment.

“3. Question of dependence.”

(The last question, namely, that of dependence, is not in controversy on this appeal.)

After the entire record, made up before the referee and the Commission with its final award, which included the evidence of a number of witnesses as to the happenings at the collision and other matters relating to whether the appellant employer was a minor or major employer, the said defendant employer prayed the court to give declarations of law lettered consecutively from A. to K. both inclusive and also prayed the court to give findings of fact numbered consecutively from 1 to 11 both inclusive.

The declarations of law related to whether the Commission acted in excess of its powers, and asserted that the facts did not support the award found by the Commission, and that there was not sufficient evidence in the record to warrant the mating of the award “for the reason that no written notice of the time, place and nature of the injury was shown to have been given to the employer within — days after this accident, which failure to give notice was not found to have been for good cause, or to have been unprejudicial to the employer. [See Sec. 38, Laws of 1925, p. 395; Sec. 3336, R. S. 1929.] ”

Other declarations were those showing the theory on which the court would properly decide the review of the Commission’s final award. Such as that the burden of proving the accident causing death arose out of and in the course'of the employment was on the claimant and that she failed to sustain such burden; that the burden of proving appellant was a major employer was on claimant and she failed to sustain such burden; that the employer was a minor employer within the meaning of Section 4, Laws 1925, page 378 (See. 3302, R. S. Mo. 1929).

The finding of facts prayed for related to the finding thát the proximate cause of the employee’s death was a personal disease and that the accident did not arise out of the employment. Other findings related to the different employees relied upon by claimant to show that the employer was a “major employer,” i. e., that it had “more than ten employees regularly employed.” [See Sec. 3302, supra.]

The cause was thereupon submitted to the court on the whole record including the above mentioned declarations of law and findings of fact and the cause was by the court taken under advisement until the March term, March 21, 1931, when, as heretofore stated, judgment refusing the findings of fact and declarations of law, and affirming the final award of the Commission, was rendered. Exceptions were taken and duly saved by “the defendant Investment Company (employer).” Then, as stated, on March 26, 1931, its motions for new trial and in arrest were filed. Then, on April 15, 1931, still at the March term, claimant’s motion to set aside judgment and dismiss appeal was filed, and on April 25’, 1931, still at the March term, defendant Shawnee Investment Company, as heretofore stated, filed its motion for leave to correct signature to the “notice of appeal.” These motions were both overruled on the- last named date, and thereupon on said 25th of April (March term, 1931), the motions for new trial and in arrest were “taken up and submitted to the court and after hearing arguments on said motion for new trial and motion in arrest of judgment, the same were by the court taken under advisement.” Afterwards at tbe May term (June 8, 1931), these motions were both overruled and the appeal to this court was taken.

It would seem, therefore, that in this case there were numerous matters dehors the record which called for a bill of exceptions to preserve them and also called for motions for new trial and in arrest. It will not do to say that, under the established procedure in a compensation case there is no need for the matters dehors the record hereinabove shown, and therefore the case should be treated as if no bill of exceptions nor motions for new trial and in arrest had been filed. The defendant employer has the right to test the question of whether it can have the matter of its liability determined in this way. Nor can it be said there was nothing in the declarations of law and findings of fact which were necessary to a determination of the questions involved. The fact that the court thought they were so, enough to cause him to take the whole matter under advisement, is sufficient to justify the carrying of the case over to the next term. The court did not decide to refuse all of the decalarations and findings until he had taken time to he advised thereon. We do not apprehend that the Legislature, or the Supreme Court in the Haid case, were so anxious to expedite the proceedings in a compensation case as to attempt to compel the trial court to rule on all matters at once at the judgment term whether the court felt the need of further advisement and consideration or not. Such an intention is not to be imputed to these high authorities. Neither would the best interests of the employer, nor of the employee for that matter, be conserved by thus increasing the danger of rendering erroneous decisions.

But, even if there be nothing in all that has been said herein which would justify the carrying of the case over from the judgment term, there is another principle which operates to relieve defendant employer of the consequences of not having taken its appeal at the judgment term. That is the principle of stare decisis (if we may, for convenience, stretch the meaning of that Latin phrase to cover the situation here). The judgment in the case at bar was rendered March 21, 1931. The case of State ex rel. v. Haid was decided after that, to-wit, on April 7, 1931. It overruled City of Macon v. Public Service Comm., 266 Mo. 484, and Dougherty v. Manhattan Rubber Mfg. Co., 29 S. W. (2d) 126, which last case was decided April 7, 1930, nearly a year before this case now on appeal was passed upon by the trial court. The cases of Brocco v. May Department Stores Co., 22 S. W. (2d) 832, and Lilly v. Moberly Wholesale Grocery Co., 32 S. W. (2d) 1099, were also overruled by the Haid case. When, therefore, the case at bar was decided, the controlling cases, especially the Dougherty case, governed the procedure herein, at the time the action herein was taken. Hence, under the ruling in the Haid case, at page 53 of 38 S. W. (2d), tbe appellant in the case now before ns should not be allowed to suffer because of the change of the rule announced in that case. For while the appeal was - taken June 8, 1931, the judgment and the action compelling the appellant to defer taking its appeal until that date, was had before that time, to-wit, at the March term of that year.

In our opinion, therefore, there is nothing in the claimant’s contention that the appeal herein should be dismissed because not taken at the judgment term.

It is claimed that the appeal should be dismissed because the Shawnee Investment Company did not take the appeal. This point, and many others on this feature of the case, go to the difference in name of the various corporations involved, attention to which has already been called herein.

We find no merit in the point raised on the difference in the names used to designate the appellant employer. The whole record shows there was really only one corporate entity involved in the case at any time, though designated by different names.

The name of the employer was given in the original claim as Shawnee Credit Corporation. This corporation filed answer and all proceedings were had thereafter against that corporation until the filing of the amended claim in which the employers were designated as “Shawnee Investment Company, a Missouri corporation (formerly Shawnee Credit Corporation, a Missouri corporation) ” and “Shawnee Credit Corporation, a Delaware corporation, successor to the business and liabilities of Shawnee Credit Corporation.” This merely designates the Delaware corporation (not as employer) but as the successor of- the business and liabilities of the other. At the hearing before the Commission on February 4, 1930, where both claimant and employer were represented, a stipulation was entered into whereby Shawnee Credit Corporation, a Missouri corporation on July 29, 1929, was named as the employer; and the Delaware corporation was never referred to again. Claimant’s amended claim, under the head of additional statements, as hereinbefore stated, shows March 30, 1926, certificate of incorporation of Shawnee Investment Company (Missouri); June 25, 1929, certificate of change of name to Shawnee Credit Corporation (Missouri); July 29, 1929, accident as reported; August, 1929, Incorporation of Shawnee Credit Corporation (Delaware); September 26, 1929, transfer of assets and business subject to liabilities from Shawnee Credit Corporation (Missouri) to Shawnee Credit Corporation (Delaware); October 8, 1929, Shawnee Credit Corporation (Missouri) changes name to Shawnee Investment Company (Missouri).

The referee’s award designated the employer as Shawnee Investment Company and it was so designated by. claimant in her application for review. The Commission made this review and, reversing the referee, granted an award solely against the Missouri corporation under the name of the Shawnee Investment Company.

In the hearing before the full commission, claimant’s counsel, in his examination of witnesses, recognized that the Shawnee Investment Company was the same as the Shawnee Credit Corporation by expressing that thought in his questions. For example, he ashed Mr. Nelson: “You are vice-president of the Shawnee Investment Company, formerly the Shawnee Credit Corporation of Missouri?” And he later ashed the same question of Mr. Baher, except that the name of the office was changed to “president” instead of “vice-president.”

On the Commission’s dochet there were entries which designated the employer as “Shawnee Credit Corp., a Mo. corp., now "known as Shawnee Inv. Co., a Mo. Corp.,” and throughout the hearings and until the referee’s award, the employer was designated on the official records of the Commission as “Shawnee Credit Corporation, a Missouri corporation, now hnown as Shawnee Investment Company.”

In the body of the notice of appeal by the employer from the Commission’s award the employer is designated as Shawnee Investment Company and in the signature it is Shawnee Credit Corporation. The notice was accepted and acted upon by the Commission and the record was transmitted to, and filed in, the circuit court, where the parties appeared for hearing, without objection, and after argument the award was affirmed. The caption of the motion for new trial designated the employer appellant as Shawnee Credit Corporation and the clerk in writing the record used the same name, but calls it the appellant. The motion itself says it is by “employer appellant” and is signed by attorneys for “appellant.” The first time any objection was taken to this difference in names was on April 15, 1931, long after the appeal had been taken from the Commission to the circuit court, after claimant and her counsel had appeared and participated in the hearing without objection and after motion for new trial had been filed. This objection was by a motion to set aside the judgment to dismiss said appeal. No contention is made that the notice was in reality given by the Delaware corporation, but only that the Shawnee Investment Company filed no notice of appeal from the award, and that the notice of appeal from the award was filed by the Shawnee Credit Corporation which was not a party to the record. Appellant thereupon filed a motion for leave to correct the signature to the notice of appeal on the ground that the use of the name of Shawnee Credit Corporation was a mere clerical error, and that employer was designated as Shawnee Investment Company. Both motions were overruled, and as claimant took no appeal from the order overruling her motion to dismiss, it would seem that such order became final and could not be reopened now. Section 3342, Revised Statutes of Missouri, 1929, provides for an appeal merely “by filing notice of appeal with the Commission.” It does not require even that the opposite party be notified. The only purpose to be accomplished is to inform the Commission so that it may transmit its record with all the papers to the circuit court. The Commission was in no wise misled. The awards made were against the Missouri Corporation under the name Shawnee Investment Company, the case was carried on under the name of “'Shawnee Credit Corporation, a Missouri corporation, now known as the Shawnee Investment Corporation, a Missouri corporation. ’ ’

The notice of the appeal was no more insufficient than the one in Igo v. Bradford, 110 Mo. App. 670, and it was held sufficient. In the case of Louis v. Steel, 17 S. W. (2d) 546, it was held, even in cases where notice of appeal is jurisdictional, that even if there be errors or irregularities therein, yet if it is served on the proper person and if it-shows that it refers to a particular judgment and can refer to no other, it will be regarded as sufficient. In 46 C. J., sec. 53, p. 553, it is said:

“Where the statute does not prescribe a form, the question ordinarily is whether the notice actually given constitutes a substantial compliance with the statute.”

At page 554 of said Section 53, it is said:

“Mere informalities do not vitiate notices so long as they do not mislead, and give the necessary information to the proper parties.”

The use of the different names amounted to no more than a mere misnomer. As to these, 14 C. J., sec. 389, p. 324, and sec. 391, p. 325, it is said at the former page:

“The general rule, therefore, is that the mere misnomer of a corporation in a bond, note, or other deed or contract does not render the same invalid or inoperative, but the corporation may sue or be sued thereon in its true name with proper allegation and proof that it is the corporation intended; and its identity may be established by parol evidence. Nor will a grant or conveyance to or by a corporation be invalidated by a misnomer if its identity as the corporation intended is established.”

And at the latter page, Section 391, it is said:

“The misnomer of a corporation in pleadings and otherwise in judicial proceedings has the same effect as a misnomer of an individual. ’ ’

At the same page 325, it is said:

“As a general rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment, citation, writ of cer-tiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled.”

And at page 326, it is said:

“The misnomer of a corporation in a statutory notice is not fatal where it appears that it could not be or was not misled.”

In bankruptcy, a corporation which has changed its name, but continues to use its original name may be proceeded against under its former name, and an adjudication under that name is valid. [Alexander v. Burney, 28 N. J. Eq. 90.] So also a railroad may be sued under a name it has acquired by usage. [Wilkins v. McCorkle, 112 Tenn. 688, 692.]

In 47 C. J., Sec. 319, p. 173, it is said:

“According to some authorities the names of parties which are used in an action or proceeding should be adhered to throughout the proceedings. However, it has been held that one sued by a wrong name may use his right name in subsequent proceedings, although no dilatory plea has been filed.”

A misnomer may be waived, and was in this case waived, by both parties. [Bedell v. Richardson Lubricating Co., 226 S. W. 563; see, also, Green v. Strother, 201 Mo. App. 418, 421.] Claimant not only showed by her pleadings that the two named corporations were in fact one and the same entity, but she also waived the difference if there was any. [Bartschat v. Downing, 172 Mo. App. 636; see, also, Munroe v. Dougherty, 190 S. W. 1022, 1025; Roberts v. Meek, 296 S. W. 195.]

There was, moreover, no question as to the identity of the employer or of the corporation sued. See 33 C. J., sec. 132, p. 1200, where it is said:

“The record must show the identity of the parties mentioned in various stages of the suit; or, in other words, there must not be a variance between the parties for or against whom the judgment is rendered and the parties indicated by the pleadings. The principle of idem sonams may be invoked, however, to obviate a variance in the names of the parties to the judgment, and where, upon an inspection of the whole record, the identity of the parties named in the judgment and the pleading is clear, the apparent variance will be held to be a clerical misprision and immaterial, or at least amendable. A variance may be waived.”

In Parry v. Woodson, 33 Mo. 347, 348, it is said:

“ . . . A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fail to appear, or appearing fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identi-fieation the evidence of the identity of the person sued may in process of time become lost, and hence the propriety of the amendment in this ease; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant has been sued by his right name.”

As to mere informalities in motions for new trial, see 46 C. J. 314; Tillet v. Lynchburg, etc., R. Co., 21 S. E. 698; Kimball v. Whitney, 15 Ind. 280; Martin v. Pevely Dairy Co., 17 S. W. (2d) 567, and Sec. 821, R. S. Mo. 1929.

The motion to dismiss the appeal herein should be, and is, therefore, overruled.