#### Tenbrook v. Daisy Mfg. Co.

5-3299

383 S. W. 2d 101

Opinion Delivered October 26, 1964.

Rex W. Perkins, Walter R. Niblock and Sam A. Weems, for appellant.

Riddick Riff el, for appellee.

Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case, wherein appellant contended that she was accidentally injured in the course of her employment, and thus entitled to compensation benefits. The Heferee made a finding in her behalf, but this decision was reversed by the full Commission, and on appeal the Circuit Court of Washington County upheld the findings of the Commission, and entered its judgment accordingly.

This case must be affirmed under Rule 9 (d). In Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265, we said:

> “* * * We have stated numerous times that we are not required to explore a record that is presented to us, but that the diity rests on appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189, and cases cited therein.”

The record in this case contains over two hundred and twenty-five pages of pleadings, exhibits, and testi*533moiiy; but tbe only portion abstracted is tbe opinion of tbe Referee in granting tbe award.

When appellees, prior to tbe submission of tbis case, moved (in tbeir brief filed with tbe court), that tbe judgment be affirmed because of appellant’s failure to comply with Rule 9 (d), appellant sought permission to supplement ber brief with an abstract of tbe judgment and testimony; but tbis likewise is not permissible. In Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460, we said:

> ‘ ‘ Tbe fact that tbe appellant, in ber reply brief, has abstracted tbe record does not, in our opinion, justify us in waiving tbe total failure to comply with Rule 9 (d) in tbe first instance. To do so would be manifestly unfair to tbe appellees. They were not required to supply tbe deficiency and were at liberty, if they thought tbe abstract to be insufficient, to proceed upon tbe assumption that tbe decree would be affirmed. To allow tbe 'appellant to supply tbe abstract in tbe reply brief would have tbe effect of trapping tbe appellees.”1

We have consistently, in dozens of cases, applied tbe rule here under discussion.

It follows that the judgment is affirmed; it may be stated, however, that, in tbis instance, appellant has not been prejudiced by failing to present a proper abstract; for tbe judgment would be affirmed on tbe merits of the controversy, and tbe applicable law.

1

In the same case, however, it was said: “We stress the fact that here the appellant’s omission was total; we do not intimate that an appellant would be penalized for a mere deficiency such as may result from inadvertence or from a failure to anticipate the appellee’s argument.”