text:
    Alice Moore SHARP, Appellant, v. Joe SALAZAR et al., Appellees.
    No. 6783.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 30, 1965.

      Keith, Mehaffy & Weber, Beaumont, for appellant.
    D, F. Sanders, Waldman & Smallwood, Beaumont, for appellees.
   PARKER, Justice.

This is a venue case. The appeal is from an order of the District Court of Jefferson County, Texas, overruling the plea of privilege of Alice Moore Sharp, appellant, seeking to transfer the case to Collin County, Texas, the county of her residence. Ap-pellees Richard Salazar, a minor suing by and through Phillip Bordages as next friend, and Joe Salazar, controverted the plea only relying upon exception of Subsection 9a of Art. 1995, Vernon’s Ann.Civ, St. Venue hearing was had before the court without a jury. No findings of fact or conclusions of law were requested by either party.

Appellees instituted this suit as a common law damage suit seeking to recover damages as - result of an automobile being driven by the appellant striking such minor child, inflicting serious bodily injuries to him. Appellees allege:

“III.
“On the occasion in question, the defendant was guilty of various acts, omissions and statutory violations, each and all of which amount to negligence and a proximate cause of the personal injuries to plaintiff, Richard Salazar, in the following respects:
(1) In failing to keep a proper lookout;
(2) In failing to have her automobile under proper control;
(3) In operating such automobile at a greater rate of speed than an ordinarily prudent person would have operated same under the same or similar circumstances;
(4) In failing to apply the brakes of her automobile; or in the alternative, in failing to apply the brakes of her automobile in time;
(5) In failing to turn her automobile to the right or to the left in order to avoid the accident in question.”

In their controverting affidavit appellees alleged that venue was properly laid in Jefferson County under Subdivision 9a, Art. 1995, R.C.S.T., which provides as follows:

“9a. Negligence.—A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.” Added Acts 1953, 53rd Leg., p. 390, ch. 107, Sec. 2.

In order to defeat appellant’s privilege of being sued in the county of her residence, as challenged, the burden is upon the ap-pellees to allege and prove that the case is within one of the exceptions to said Art. 1995. Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (1931). The “venue facts” which a plaintiff must allege and prove in order to defeat the plea are those which are stated in the particular exception of Art. 1995 applicable to the suit as alleged. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935) ; King v. Jones, 307 S.W.2d 851 (Tex.Civ.App.1957, n. w. h.). The burden is plaintiffs to establish those venue facts by a preponderance of competent evidence. Flintex Oil Company v. Guillory, 337 S.W.2d 757 (Tex.Civ.App.1960, n. w. h.); Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694 (Tex.Civ.App.1965, n. w. h.).

The only evidence introduced bearing upon the questions of negligence above set forth in exception 9a, Art. 1995, R.C.S.T., consisted of the deposition of Mrs. Alice Moore Sharp, who testified: At the time of the accident she was on Wall Street driving a 1958 Chevrolet Station Wagon which was in good condition. Wall Street is a paved and curbed city street. Her speed was about 15 m. p. h. through light traffic. She was in her own lane of traffic far enough from the right hand curb to clear the parked cars. Immediately prior to the accident the child, Richard Salazar, appeared suddenly from behind a parked car, darting into the street about a foot or two in front of and to the right of her front bumper. She immediately applied her brakes and thought that she tried to turn her vehicle but did not have time. The child ran into her right front bumper and headlight of her car. She was traveling less than 15 m. p. h. at the time of the accident and brought her car to a stop within 10 feet, still facing a westerly direction. She saw no slogans or posters referring to children as she approached the scene of the accident, but realized that some children do get into the streets and was prepared to stop if possible. It was daylight and the visibility was good at the time of the accident. Mrs. Sharp was prevented from seeing Richard Salazar because be was completely hidden by a parked car until he ran out from behind it and into her vehicle.

The oral depositions of Mr. and Mrs. Joe Salazar, parents of Richard Salazar, produced no relevant testimony on these questions of negligence as neither parent saw the occurrence.

Appellant’s first point of error is:

“The trial court erred in overruling defendant’s plea of privilege because there was no evidence to support a finding that defendant was guilty of negligence which proximately caused plaintiff’s injuries.”

The second point of error is that there was insufficient evidence to support such finding, and the third point of error is that such finding was against the great weight and overwhelming weight of the evidence.

There is a complete absence of evidence in this record that Alice Moore Sharp was guilty of negligence which proximately caused the injuries to Richard Salazar. Appellant’s first point of error is sustained,

The judgment of the trial court is reversed and it is ordered that the cause be transferred to a district court of Collin County, Texas.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Kathryn M. GREEN, Appellant, v. J. WEINGARTEN, INC., Appellee.
    No. 4017.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.
    William J. Kershner, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, Gay Brinson, Jr., Houston, for appellee.
   GRISSOM, Chief Justice.

Kathryn M. Green slipped and fell when she stepped on a green onion stalk in J. Weingarten’s grocery store. She sued for damages suffered in the fall. There was testimony that the onion stalk was dirty and dark brown with black places on it and that it was an old brown onion stalk and that it did not appear fresh. At the close of plaintiff’s evidence, the court withdrew the case from the jury and rendered judgment for the defendant. The plaintiff has appealed.

Appellant contends that the evidence as to the appearance and condition of the onion stalk was such that it raised an issue of fact as to whether it had been on defendant’s floor for such length of time that it would have been discovered and removed by the defendant had it exercised ordinary care. There was no evidence as to how the stalk got on the floor or how long it had been there, unless, from its appearance, it was more reasonable to conclude that such condition occurred after, instead of before, it got on the floor. It has often been held in Texas under similar fact situations that such conditions of an article upon a floor does not show that it was more probable that it got in that condition after it got on the floor than before it got there. After a careful study of the record, we are forced to the conclusion that there is no evidence that the onion stalk had remained on the defendant’s floor for such length of time that by the exercise of ordinary care the defendant would have discovered and removed it. H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501 (Writ Ref.); Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hall v. Safeway Stores, Inc., Tex.Civ.App., 360 S.W.2d 536 (Ref. N.R.E.).

The courts seem to have sometimes distinguished between the sufficiency of evidence as to liquids and solids upon a floor. For instance, in Furr’s, Inc. v. Bolton, Tex.Civ.App., 333 S.W.2d 688, 689, it was said that the nature of a liquid found dried the edges and then fallen to the floor and that such situation was different than that around the edges on the defendant’s floor was such that it could not have dried around shown by the appearance of a banana or grape which might just as likely have withered and blackened before as after it fell to the floor. In Furr’s, Inc. v. McCaslin, Tex.Civ.App., 335 S.W.2d 284, it was held that where it was equally as probable that the withering, blackening and deterioration of an article occurred before it got to the floor as afterward that from such condition of an article on a floor it could not reasonably be inferred that it got that way while it was on the floor. In S. H. Kress & Company v. Selph, Tex.Civ.App., 250 S.W. 2d 883 (Ref. N.R.E.), candy was found on the floor. There was evidence of broom marks on the candy, from which it was held there was evidence that the candy had been on the floor for a considerable period of time. Here, the evidence as to the appearance and condition of the green onion stalk does not justify a conclusion that it had been on the defendant’s floor for such a length of time that, had the defendant exercised ordinary care, it would have been discovered and removed. It is no more reasonable to conclude that the darkening or formation of black spots on the onion stalk occurred while it was on the floor than before it got there. The judgment is affirmed.


author: CLEMENS, Commissioner. PER CURIAM:

text:
    Tony Edward JOHNSON, a Minor, by his Next Friend and Guardian of the Estate of Tony Edward Johnson, Winfred J. McDaniel, Sr., Plaintiff-Respondent, v. William G. HUNTER and Emery Emerson Gipson, Defendants, William G. Hunter, Defendant-Appellant.
    No. 32052.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Rehearing Denied Jan. 19,1966.
    Robert A. Mcllrath, Flat River, for defendants.

      Robert A. Mcllrath, Flat River, W. T. McGhee, Brentwood, for defendant-appellant.
    Roy G. Cooper, Schnapp, Cooper & Graham, Fredericktown, Marvin L. Dinger, Ironton, for plaintiff-respondent.
   CLEMENS, Commissioner.

This is a wrongful death action by a three-year-old plaintiff whose father was a passenger in a logging truck that overturned. Defendant-appellant Hunter owned the truck and employed the driver. He suffered a $5,000 judgment, and appeals. The other defendant, Emery Gipson, driver of the truck, was exonerated by the verdict, and the judgment was in his favor. Plaintiff does not appeal; so the judgment in favor of the driver, defendant Gipson, is unchallenged.

We are first faced with respondent’s motion to dismiss the appeal for appellant’s belated filing of the transcript. The motion itself was untimely, being filed here on the day the case was argued, without due notice to the appellant as required by Civil Rule 83.11, V.A.M.R. The motion to dismiss the appeal should be denied.

This appeal arises from a somewhat bizarre chain of proceedings. Plaintiff pleaded general negligence but proved specific negligence, and then submitted his case on general negligence as to the two defendants jointly; but there was a verdict and judgment against one defendant severally.

The petition alleged the ownership of the truck by defendant Hunter and the agency of the driver, defendant Gipson. It jointly charged them with general negligence in allowing the truck to leave the roadway and overturn. Defendant Hunter admitted by his answer that he was the owner of the truck and that Gipson was driving within the scope of his employment.

Plaintiff’s evidence: Defendant Hunter operated a saw mill in Madison County and employed defendant Gipson and the decedent, Curtis Johnson, plaintiff’s father, as loggers. He furnished them with an old flat-bed truck to haul logs from the timber to his saw mill. The truck had no emergency brake lever; was not equipped with a rear-view mirror, horn, stop-lights, signal lights, tail lights, or reflectors; and the right-hand door of the cab would not stay shut. Plaintiff introduced evidence of previous trouble with the brakes. By admissions of defendant Gipson, plaintiff showed that on other occasions prior to the accident the brakes had to be pumped several times before the truck would even slow down. By another passenger, Charles Carpenter, plaintiff showed that in going down other hills before the last one, defendant Gipson had to pump the brake pedal three or four times before the brakes would take hold.

Plaintiff further showed that on the day in question, while going back to the mill with a load of logs, defendant Gipson was driving and the decedent was riding in the right side of the cab. As the truck topped the crest of a hill, Gipson pumped the foot-brake pedal and found he had no brakes. As the truck descended the hill, gathering momentum, it came out of gear and driver Gipson could not re-engage the gears. Having no emergency brake, and with no other means of slowing the truck, Gipson turned the truck into the roadside ditch in order to slow it down. The truck crossed the ditch, went up an embankment, and overturned. Curtis Johnson was found lying underneath the truck and he died soon thereafter. A highway patrolman then examined the truck and found that the brakes were inoperative.

The defendants’ evidence was that the truck had been regularly inspected, and that the defect in the foot brakes was not apparent until the truck started down the last hill, just before it overturned.

At the close of the evidence, plaintiff submitted his case by one verdict-directing instruction, hypothesizing the agency relationship between the defendants and the general negligence of defendant Gipson in causing and permitting the truck to leave the roadway. If the jury so found, it was directed to return a verdict against both defendants jointly; notwithstanding, separate verdicts were returned and filed. One found against defendant Hunter and assessed plaintiff’s damages at $5,000; the other verdict found in favor of defendant Gipson. Judgment was entered against defendant Hunter and in favor of defendant Gipson. As said, defendant Hunter appealed from the adverse judgment, but plaintiff did not appeal from the judgment which discharged defendant Gipson.

Defendant Hunter’s main contention, squarely raised in his motion for new trial and in his brief, is that the trial court erred in submitting plaintiff’s case on general negligence because plaintiff proved the specific cause of the casualty. Plaintiff says he did not prove the specific cause, but that his evidence merely tended to show the cause. We agree with defendant Hunter’s contention.

The rule and its limitation was tersely stated by Judge Bennick for this court in the case of Belding v. St. Louis Public Service Co., Mo.App., 205 S.W.2d 866 (4-7):

“In one sense the doctrine of res ipsa loquitur is a rule of necessity in that it is only to be invoked where the instrumentality producing the injury was in the exclusive control of the defendant, so that evidence regarding the true cause of the occurrence is practically accessible to the defendant, but inaccessible to the injured plaintiff. In other words, the doctrine presupposes that the plaintiff, from the nature of the occurrence, is unable to point out the particular act or omission responsible for his injury, and that the defendant has the superior knowledge or means of information as to the real cause of the accident. Gibbs v. General Motors Corporation, 350 Mo. 431, 166 S.W.2d 575.
“It follows, therefore, that when the plaintiff, having pleaded a case of res ipsa loquitur, goes so far in his own evidence as to point out, and reveal his knowledge of, the specific act of negligence which was responsible for his injury, there is neither room nor necessity for the application of the doctrine. But on the other hand, even though the plaintiff’s evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, ‘the true cause is still left in doubt or is not clearly shown.’ [Citing cases.]”

See, also, Belding v. St. Louis Public Service Co., Mo., en Banc, 215 S.W.2d 506(6, 7); Stevens v. Missouri Pacific Railroad Co., Mo., 355 S.W.2d 122(17); and Triplett v. Beeler, Mo., 268 S.W.2d 814(4). In each of these cases it was held that a plaintiff is allowed to rely on the doctrine of res ipsa loquitur only if after all his evidence is in, the true cause of the casualty is still left in doubt or is not clearly shown.

In the analogous case of Taylor v. Prudential Ins. Co. of America, 234 Mo.App. 317, 131 S.W.2d 226(11-14), the plaintiff was injured by a door slamming as she passed through a doorway. Her own evidence showed that the door-stop device was not kept in position to operate and that the wind blew the door shut as she went through. In declining to give plaintiff the benefit of the res ipsa loquitur doctrine, the court said:

“⅞ ⅜ * As we conclude that the plaintiff in the case at bar has as a matter of fact proved by direct evidence the precise cause of the accident by evidence from which no other inference can be drawn than that the wind forced the door to slam because same was not held in position by the stop appliance being in position to perform such function, we must further conclude that the doctrine of res ipsa loquitur has not application. * * * ”

Ours is not a case where the plaintiff was unable to point out the particular act or omission responsible for the injury and the defendant had superior knowledge or means of information as to the real cause of the casualty. Instead, ours is like the Taylor case, supra. Here, the plaintiffs own evidence showed in detail the inadequate brakes, the driver’s knowledge thereof, and his driving off the roadway because of the inadequate brakes. The true cause of the casualty was clearly shown by plaintiff’s own evidence; so the submission of his cause on general negligence was error. Compare Elder v. Phillip, Mo.App., 252 S. W.2d 656(2) ; and Oblamski v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 344(4, 5), where similar results were reached. It was prejudicial error to give the general negligence instruction.

Defendant Hunter also asks for a new trial on the ground that the verdict and the judgment against him alone were contrary to the court’s instruction. As said, plaintiff’s verdict-directing instruction told the jury flatly that if they found for the plaintiff, their verdict should be against both defendants. The separate verdicts and the ensuing judgment against defendant Hunter and in favor of defendant Gipson disregarded that part of the verdict-directing instruction. It is fundamental that a verdict must be responsive to the court’s instruction, and that the judgment must conform to the verdict. See numerous cases collected in 27 Mo.Dig., Trial, ^337, and 17A Mo.Dig., Judgment, <§=>256(1). Here, the error in the noncomplying verdicts was carried forward into the judgment. We deem this to be a prejudicial error as to defendant Hunter, entitling him to a new trial.

Lastly, in the argument portion of his brief, defendant Hunter seeks to invoke the rule that where an employer and an employee are sued for the employee’s negligence and the jury exonerates the employee, no judgment can be entered against the employer. He cites Devine v. Kroger Grocery and Baking Co., 349 Mo. 621, 162 S.W.2d 813(1), and similar cases, and urges us to set aside the judgment and discharge him, or grant him a new trial. Plaintiff counters with the argument that defendant Hunter is not entitled to be released under this theory, because Hunter raised no objection to the verdict forms given the jury which permitted them to find against defendant Hunter alone. As to this limitation on the general rule, see Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316 (4) ; and Atterbury v. Temple Stephens Co., 353 Mo. 5, 181 S.W.2d 659(10). However, it will not be necessary for us to resolve this dispute. Plaintiff correctly objects to our reviewing the point, because defendant Hunter did not raise it in his motion for a new trial; nor did he do so in the “points relied on” portion of his brief. Civil Rules 83.13(a) and 83.05(e), V.A.M. R., preclude us from reviewing defendant Hunter’s belated contention for judgment, as we ruled under the same circumstances in Crowley v. Crowley, Mo.App., 360 S.W. 2d 293(1). Defendant Hunter’s alternate request for a new trial is granted by our previous finding of other reversible errors.

Upon a retrial of this case against defendant Hunter, the plaintiff may not recover for any alleged negligence of defendant Gipson on the theory of respondeat superior, because that issue has been determined by jury’s verdict in favor of defendant Gipson. However, the plaintiff may, if he is so advised, file an amended petition charging defendant Hunter with specific negligence, say in failing to have the truck equipped with adequate brakes. Accordingly, the judgment should be reversed and the cause remanded for a new trial as to defendant Hunter; and the verdict in favor of defendant Gipson should be held in abeyance pending determination of the case as to defendant Hunter. At such time, one final judgment should be entered in favor of defendant Gipson, and also disposing of the rights between plaintiff and defendant Hunter as then determined. Civil Rule 74.01, V.A.M.R.; Sect. SI 1.020, V.A.M.S.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court.

Accordingly, respondent’s motion to dismiss the appeal is denied, and the judgment is reversed and the cause remanded for a new trial as to defendant Hunter; and the verdict in favor of defendant Gipson is to he held in abeyance pending determination of the case as to defendant Hunter.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: RUDDY, Judge.

text:
    In the Matter of Richard Ralph NEUSCHE and Dorothy Mae Neusche, (Petitioners) Appellants.
    No. 32082.
    St. Louis Court of Appeals. Missouri.
    Dec. 21, 1965.
    Rehearing Denied Jan. 19, 1966.

      George W. O’Lary, St. Charles, for petitioners-appellants.
    Donald E. Dalton, Pros. Atty., St. Charles, for State Department of Health and Welfare, Division of Welfare, Child Welfare Service.
   RUDDY, Judge.

This proceeding was filed in the Juvenile Division of the Circuit Court of St. Charles County by Richard Ralph Neusche and Dorothy Mae Neusche, his wife, praying for an order of temporary custody of a minor child born out of lawful wedlock on November 4, 1963. The petition for transfer of custody was denied and petitioners appeal.

Prior to the hearing on said petition the St. Charles County Welfare worker was requested to make an investigation of the petitioners who were seeking the custody of said minor child.

The natural mother of the child testified that she had left her family in outstate Missouri and was living in St. Louis with another woman at the time she became pregnant. She was 19 years of age when her child was born out of wedlock in the City of St. Louis. In April of 1964, she was planning to go to an agency to have her child adopted when she learned through a sister of one of the petitioners that Mr. and Mrs. Neusche were interested in adopting a child.

Mrs. Betty Jean Farris, the sister of one of the petitioners, then introduced the natural mother to the petitioners. Thereafter, the mother visited the home of the petitioners in St. Charles, Missouri. The mother executed a “Consent to Adoption of Child” wherein she relinquished all of her rights as a natural parent to the care, custody and control of the said minor child and gave her full and free consent to the adoption of said child without notice to her by any person or persons having the approval of any Court having jurisdiction of the care, custody and control of said minor child. In her consent she stated: “I further relinquish and surrender the care, custody and control of said child to such person or persons or organizations as may be determined by a court of competent jurisdiction.” This consent to the adoption of her child was signed on April 23, 1964, in St. Louis County, Missouri. In her testimony she said she thought that adoption would be best for the child because she had no means of supporting the child. At the time of the execution of the consent to the adoption, Mr. Neusche, one of the petitioners, was present. That was the first time she had ever seen Mr. Neusche. She could not recall the exact date that she turned the child over to the petitioners. However, she said it was some time close to the 23rd of April, 1964. She thought that Mrs. Neusche would be a good mother to her child and wanted petitioners to have the child.

In the examination of the natural mother by the Court, she said that she did not contact any social agency in regard to possible adoption at the time she was pregnant and prior to the birth of the child, stating that she did not want her child to go to an agency. When -the child was 4 months of age her parents wanted her to place the child with an agency but she refused to do so. She said that the petitioners did not give her any money and that she turned the baby over to them at the time of their first meeting and after several hours of talk. She said Mr. Neusche told her he did not have much education and “that is why it was important that his children go all the way through school.” Mrs. Neusche said nothing to her about her education. She did not know that both of the petitioners had been married before and divorced. She knew they had a son and was told that it was by a prior marriage of the wife and that Mr. Neusche had adopted him.

Richard Ralph Neusche, one of the petitioners, said he was the husband of the other petitioner, Dorothy Mae Neusche, and that they were married on July 30, 1949, at Piggott, Arkansas. They have been living in St. Charles County since the time of their marriage. He said he and his wife have one boy in the home who was born to his wife during a previous marriage. He said he was the stepfather of the child and had not adopted the child and denied that he ever represented to anyone that he had adopted the boy. Petitioner was born March 14, 1932, and his occupation is that of a truck driver for Fred Weber. He said that his sister called him and told him about “this little boy,” following which, he and his wife met his sister at the home of the natural mother, where the petitioners talked with the mother of the child. He said that the mother was shown their home and, after talking to the minister of the mother, he called a lawyer in St. Charles and thereafter he and the wife brought the baby to their home. He said he works 50 to 60 hours a week at $3.62 an hour. He has worked for Fred Weber for about 8 years. He and his wife are “in the process of buying” their own home. He testified that if the application for transfer of custody of the child is granted, that he and his wife plan on filing a petition for the adoption of the minor child. He said the only person to contact him in regard to the transfer of the custody of the child was Mrs. Smoller, a welfare worker. He said he and his wife get along well together and that both are in good health. He said the minor child was a healthy child, but added, “when we got him he had a 102 or 3 fever — he was sick — and we took him to the doctor and he didn’t know what baby food was or anything else — the boy didn’t. He weighed about fourteen pounds. Now, we have had him back and forth to a doctor and got him healthy and he weighs eighteen pounds.” His wife’s son by a previous marriage is about 16 years of age and is in their household. He said he had been married previously and when asked if he had any children by his previous marriage he gave the following answer: “Well, that was one of those things I don’t know. My wife married Joe Bizelli and they had this little boy. We were kids when we got married. We didn’t stay married long. She married him. They have had four or five kids since then.” In answers to questions by the court, Mr. Neusche said he had an eighth grade education and two years military service. The following answers were given to questions by the court: “Q. I didn’t quite understand your answer to Mr. O’Lary’s question when he asked you about your first marriage: Was there a child born to your wife of that marriage ? A. Yes, sir. Q. And that child is how old now, Mr. Neusche? A. It is about fifteen. Q. Your wife, however, has custody of it? A. Yes, sir; I adopted him. Joe come to me about some paper — I didn’t know too much about it — he asked me — he thought it would be better if he took Joe’s name and I thought that it would be because they remarried and had their own family. Q. Did you release that child? A. Yes — to Joe.” He said that his previous wife and Joe adopted the child. He said he had no contact with the boy since that time and did not support the boy before the adoption. He said he does not go to church too often. “I don’t get to church as much as I should.”

Dorothy Mae Neusche, the other petitioner, testified and verified the testimony of her husband concerning the circumstances of the first visit with the child and its mother. She thought this visit occurred around April 10th and that the mother visited petitioners’ home about April 13th. She said the reason the natural mother came to St. Charles on that occasion was to sign the papers for the transfer of custody in the adoption of the child. She said that the natural mother had said that she never did go to a welfare agency with the child because “she didn’t want the child placed in any Agency — she wanted to know where her child was and who got him — and she knows.” She said that the natural mother repeated several times, “I would never bother him (the child) because it might upset him and I think it would be better for the child. I don’t think that I would ever bother him.” She said it was her intention to file a petition for adoption if she and her husband were granted the temporary custody of the child. She said that she and her husband were in good health. In response to the court’s examination, Mrs. Neusche said she had completed her second year in high school and that she quit high school at the age of 16 and was married. She said that marriage lasted about two years and the son who is living with her now was born to her during that marriage. Her son was a year and a half old when she marreid Mr. Neusche and he has never adopted her son. She said that she goes to the Catholic Church but had never been baptized in that church.

The trial court in its findings of fact, conclusions of law and judgment, among other findings, made the following:

“The Court finds that the relationship between the mother and the petitioners is such that further contact between them, and the child is possible and probable; that such possible confrontation is detrimental to the future welfare, of the child.
“The child has improved physically in the petitioners’ home, and they are each fond of the child. They own a suitable home, and their economic condition is satisfactory.
⅝ ⅝ ⅝ ⅜ ⅜ ⅝
“ * * * The court concludes that the petitioners do not meet the intellectual, cultural, religious, marital and social standards that are readily available in other prospective adoptive homes available to the Court through authorized child placement agencies.”

The court thereafter concluded that it was not to the child’s best interest to be in the petitioners’ custody, and that such interest would be furthered by granting the child’s custody to the State Department of Health and Welfare for placement in a prospective adoptive foster home. The trial court made other findings which we find unnecessary to relate.

In reviewing the several contentions made by the petitioners in this appeal, we must keep in mind that the welfare of the child is the primary and paramount consideration in an adoption or custody proceeding, the wishes of the natural mother and of the petitioners being secondary and subservient thereto. In re Mayernik, Mo., 292 S.W.2d 562, 570; In re K. W. S., Mo.App., 370 S.W.2d 698, 703; Adoption of McKinzie, Mo.App., 275 S.W.2d 365, 372.

In making the determination of what considerations will best serve the interests of the child and contribute to its future welfare, the trial court and this court must seek to peer into the future, to make a projection based upon the facts before the court and to render a decision accordingly. In re K. W. S., supra. The duty of the court is not only to provide a good home for the child but to provide the best home that is available. By that is not meant the wealthiest home, but the home which, all things considered, is available and the court deems will best promote the welfare of the particular child. State ex rel. St. Louis Childrens Aid Soc. v. Hughes, 352 Mo. 384, 177 S.W.2d 474, 1. c. 476.

It was the obligation and duty of the trial judge to decide what was in the best interest of the child, and in passing upon that question, he is afforded a wide discretion, which must not, of course, be abused. In re K. W. S., supra. The trial judge does not have a discretion to decree a transfer of custody or an adoption until the statutory requirements are met, but after the statutory requirements are met, he may exercise his discretion as to whether or not to allow the transfer of custody or the adoption, taking into consideration the moral, intellectual, material, spiritual, cultural and social welfare of the child and upon that basis he may grant or refuse the decree of transfer of custody or of adoption. Upon appeal, his determination will stand where there has been no abuse of discretion. 2 C.J.S. Adoption of Children § 39a, p. 424.

The reason we must accord the trial judge this broad discretion in the matter of the transfer of custody of the child is that he has an extreme advantage over a reviewing court, in that he can observe the participants before him, can observe their demeanor and conduct and intelligence and many other characteristics, which in no way can ever be reflected in the cold printed record which we review and certainly he knows more about the case in all of its aspects than we do.

Because of the trial judge’s better position to observe these qualities and characteristics, we deem it our duty as the reviewing court to grant greater deference to his determination in these matters involving the custody of a minor child than perhaps we would give in cases that involve mere material possessions,

We also indulge the presumption that his decision was motivated by what he believed was best for the child. State v. Greer, Mo.App., 311 S.W.2d 49, 51; 2 Am. Jur.2d, Adoption, § 61, p. 910.

In the case of In re Hyman’s Adoption, Mo.App., 297 S.W.2d 1, the court, quoting from another case, said: “the court held that the court of appeals is required to arrive at its own conclusion as to what disposition of the child’s custody will be for its best welfare, but due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses, and his judgment will not be set aside unless clearly erroneous and in conflict with the clear preponderance of the evidence disclosing manifest abuse of judicial discretion.” (297 S.W.2d 1. c. 8).

Civil Rule 73.01(d), V.A.M.R., will not permit us to set aside a judgment unless it is clearly erroneous. See in the Interest of C. C. and C., Mo.App., 380 S.W.2d 510; In re K. W. S., supra; In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360.

We have elaborated on the rules and guidelines governing our duty in reviewing these matters because of a record that is scant and leaves much to be desired in the area of showing the antecedents of the petitioners herein.

The jurisdiction of the court in transfer of custody and adoption proceedings is said to spring from a duty of the state as parens patriae to protect and control the interests of the child as the child is considered a ward of the court. State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20; 2 C.J.S. Adoption of Children § 39b, p. 425.

Before discussing the contentions raised by the petitioners we remind them that in this custody proceeding the burden of proof was upon them to establish the facts justifying a decree of transfer of custody. 2 C.J.S. Adoption of Children § 39a, p. 424. We do this in view of the sparsity of facts presented by the petitioners to the trial court in their effort to justify their right to a decree of custody.

Keeping in mind the aforesaid admonitions and rules of law, we approach the first contention of petitioners, wherein they charge that “the trial court manifestly abused its judicial discretion in its findings that it is not to the child’s best interest for its custody to be granted to the appellants (petitioners); * * In support of this contention petitioners state that the trial judge is possessed of “extraneous information as to the merits of the controversy.” There is nothing in the record before us that would indicate that the trial judge had any information other than that which was elicited from the witnesses in the course of the hearing. We assume that petitioners have in mind the investigation and written report required by § 453.070 RSMo 1959, 24 V.A.M.S. It is true that the record shows an investigation was ordered but there is nothing to show that the written report was made. However, if such a written report was made the complaint raised by the petitioners is made here for the first time. Furthermore, if there was such a report petitioners upon written application could have asked the court for the right to see same. Section 453.120 RSMo 1959, V.A.M.S.; In re Mayernik, supra. We think that regardless of what the report, if any, may have contained, the findings and judgment of the trial court are supported by the evidence in the record before us.

In reviewing the factors disclosed by the record in this case and particularly referring to the findings and conclusions of the court wherein it found that “the child has improved physically in the petitioners’ home, and they are each fond of the child [. T]hey own a suitable home, and their economic condition is satisfactory,” we point out that the mere fact petitioners were financially able and morally fit to furnish a good, home for the child, “is not the end of the matter.” State ex rel. St. Louis Childrens’ Aid Soc. v. Hughes, supra. As we have pointed out heretofore, there are many other factors and considerations that must be taken into account and which the trial court commented on in its findings. Also see Child Saving Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920; In re K. W. S., supra; 2 Am.Jur., Adoption, § 61, p. 910.

While it is true that the minor child has the right to have adoptive parents who can provide financial security, the child is also entitled to custodians or potential adoptive parents who have more than minimal intelligence and who have by their past conduct shown an ability to bring into full fruition a well matured child as a member of society. It is not enough that petitioners are morally fit. They should be persons who demonstrate and convince the trial court in some manner that they have the intelligence and ability to exercise proper discipline in the rearing of the child and to make the most of the child’s potential.

An important factor found by the trial judge, and we think sufficiently supports his conclusion and judgment is that the petitioners did not meet the intellectual standards readily available in other prospective adoptive homes and necessary when giving consideration to the future welfare of the child. Many cases decided by the courts of this state have held that this is a factor that deserves the fullest consideration of the court. The trial judge saw fit in his findings to refer to the fact that the husband petitioner had an eighth grade education and, no doubt, considered this in reaching his conclusion that petitioners do not possess the intellectual standards necessary. A college degree is not a requisite for adoption or custody of a child and it is true that in some instances one who has obtained only an eighth grade education might display sufficient intelligence to meet the intellectual standards needed. We cannot say that the fact standing alone, of receiving an eighth grade education, should disqualify one from the custody of a child and its ultimate adoption, because it is possible that a person, since the termination of his formal eighth grade education acquired knowledge otherwise, that may be the equivalent of further formal education. Some men and women possess an inherent native intellect that does not necessarily require a formal education to develop, whereas, others, lacking this inherent intellect and lacking the further education, may not possess the intellectual qualities necessary to the proper rearing of a child. We think that whether one possessed of an eighth grade education has sufficient intellectual qualities necessary to the proper rearing of an adoptive child or to the custody of a child should be left entirely to the discretion of the trial judge who has the person or persons before him, can observe their demeanor, their ability to answer questions with sufficient alacrity and can observe other characteristics that would demonstrate sufficient intelligence or a lack of it. This can only be ascertained from an observation of the petitioners and cannot be ascertained from a reading of the cold printed record before us. We feel that we must defer to the superior position of the trial judge in this matter, wherein he arrived at the conclusion that the petitioners do not possess sufficient intellectual standards.

In connection with the first marriage of the husband petitioner herein, it is admitted by him that he failed to support the child born of that marriage before the child was adopted, which is a factor the trial judge could consider in determining whether this petitioner possesses sufficient understanding of his responsibility toward children he is obligated to support.

The trial judge further found that the petitioners did not meet the religious standards that are readily available in other prospective adoptive homes. Mr. Neusche admitted that he did not go to church very often. While the religious belief of the parties of itself may not be a determining factor, certainly evidence of the fact that they attend church with some regularity is helpful because such an attendance plays a very important role in the religious training of the child and enables the child to reach proper maturity in the moral area. The minor child should have the right to have adoptive parents or custodians who can provide the necessary religious training and the trial court has a duty to have a regard for the spiritual welfare of the child. Am.Jur.2d, Adoption, § 63, pp. 911, 912.

Another contention of the petitioners is that the trial judge erred in his finding that the relationship between the mother and the petitioners is such that further contact between them and the child is possible and probable; and that such possible confrontation is detrimental to the future welfare of the child. In a case decided by this court, In re K. W. S., supra, at 370 S.W.2d 1. c. 703, we said:

“Petitioners argue that as a matter of law there is no legal authority for the court to consider what the court referred to as ‘confrontation.’ With that contention we cannot agree.”

In that case petitioners and one of the natural parents of the child involved knew the identity of each other. While the natural mother did not know who had the actual custody of the child involved, she did know the natural father had placed the child with individuals known to him. In addition to that, some other relatives knew of the placement of the child. In that case we said at 370 S.W.2d 1. c. 704:

“* * * In view of the circumstances existing- in this case we are of the opinion that the court was justified in finding that some form of confrontation detrimental to the welfare of the child might occur.”

In the instant case petitioners know the identity of the natural mother and she knows them. The sister of one of the petitioners is a friend of the natural mother, knows her identity, of course, and knows both of the petitioners and their address. The natural mother, as we said, knows the petitioners and knows where they live and the whereabouts of the child. The natural mother said to one of the petitioners “I don’t think that I would bother him” (meaning the child). This statement indicates uncertainty. In the instant case the natural mother of the minor child is giving up the child because of the conditions under which she is presently existing, viz., strain and anxiety resulting from her unwed status and her financial condition. We think that because of these factors the element of possible future confrontation becomes an important consideration. The natural mother of the child involved herein when she becomes more emotionally stable and is not confronted with her present financial problems and other problems that are now causing her present anxiety, may later regret her action of today and then begin proceedings which will interfere with the child and the petitioners who may nave taken the child into their home. Instances in which a natural parent has suffered a change of mind after the transfer of a child and has sought to regain its custody, resulting in litigation, are not unknown. See In re K. W. S., 370 S.W.2d 1. c. 704, and cases cited therein. We think the trial judge could properly consider the “confrontation” issue and from this consideration make a determination whether or not such possible future confrontation may be detrimental to the welfare of the child. We find no error in this respect.

Petitioners urge that we reverse the trial court’s finding and decree and remand the case for a further hearing, contending that they desire to present additional evidence and cite the case of Obermeyer v. Hentsehel, Mo., 389 S.W.Zd 203 as authority for this contention. That case involved an action to quiet title wherein the court reversed the trial court’s judgment and remanded the case to permit the parties to amend their pleadings to present a theory disclosed by the evidence. Our perusal of the record in the instant case does not reveal the selection of a wrong theory, nor does the record show that other evidence is available regarding the intelligence and religious qualifications of the petitioners.or regarding the issue of confrontation. We think the record evidence on these factors was sufficient to support the trial court’s findings and decree.

One other point has been urged by the petitioners but in view of our ruling needs no discussion.

The affirmative evidence appearing in the record before us is sufficient to support the court’s conclusion that the child’s best interests would not be served in the custody of the petitioners. In re Smith, Mo.App., 339 S.W.2d 490. The evidence presented factual issues and we defer to the findings of the trial judge, because he was in a better position to determine the issues, having the witnesses before him, and the ability to observe their demeanor and characteristics, whereas, we can only resort to the cold printed record. We find that the trial court did not abuse its discretion and did not commit error in its findings or decree.

The judgment of the trial court is affirmed.

WOLFE, P. J., and ANDERSON, J., concur.


author: DOERNER, Commissioner. PER CURIAM:

text:
    Louis SKATOFF, Plaintiff-Appellant, v. Michael ALFEND, Celia Alfend, Samuel Alfend, National Union Fire Insurance Co., U. S. Fidelity and Guarantee Co., Aetna Casualty and Surety Co., Commercial Union Insurance Co., Home Insurance Co., and Lloyd’s of London, Defendants-Respondents.
    No. 32123.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    Newmark & Baris, Irl B. Baris, St. Louis, for plaintiff-appellant.
    Morris A. Shenker, R. J. Slater, Jesse E. Bishop, Willson, Cunningham & McClellan, Martin E. Juncker and George E. Lee, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

This action originated in the Circuit Court of St. Louis County as an attempt by Louis Skatoff and Joseph F. Melbourne, two partners of a three-man partnership, to secure an accounting from Michael Aifend, the third partner, in connection with the dissolution of the partnership. However, on the part of Skat-off the suit developed broader ramifications, including a demand by him that the subsequently joined defendants, Celia Ai-fend and Samuel Aifend, Trustees, be divested of title to certain real estate located in the City of St. Louis. Relying on Section 508.030, RSMo 1959, V.A.M.S., which provides that “Suits * * * whereby the title thereto (to real estate) may be affected, * * * shall be brought in the county where such real estate, or some part thereof, is situated” the court entered an order and judgment sustaining the motions of defendants Celia Aifend and Samuel Aifend, Trustees, for a summary judgment of their dismissal, and of defendant Michael Aifend for dismissal of Skatoff’s second amended petition. Skatoff’s appeal to this court followed in due course. While neither of the parties has challenged our jurisdiction, the basis for the trial court’s ruling obviously raises a serious question as to whether we may entertain this appeal in view of Article V, § 3 of our Constitution, V.A. M.S. Since a doubt exists it is our duty sua sponte to investigate and determine that matter. Wartenbe, et al. v. Car-Anth Mfg. & Supply Co., Mo., 353 S.W.2d 570; Johnson v. Duensing, Mo., 332 S.W.2d 950.

To that end a brief review of the record and the undisputed facts thereby disclosed is in order. Since 1953 Louis Skatoff, Joseph F. Melbourne, and Michael Alfend were partners, engaged in business in the City of St. Louis and elsewhere under the name of Masco Manufacturing Company. On March 31, 1960 the three executed a written agreement embodying the terms of a dissolution of their partnership. In accordance therewith and on the same day, Skatoff, Melbourne and Alfend, and their respective wives, by warranty deeds conveyed to Michael Alfend two parcels of real estate located in the City of St. Louis. More than a year later, on August 28, 1961, Michael Alfend transferred the title to the same two parcels to Celia Alfend and Samuel Alfend as trustees under a trust indenture of that date. Thereafter Michael Alfend, and Celia Alfend and Samuel Alfend as trustees, caused said real estate to be insured by the six insurance companies whose names appear in the caption, in the total amount of $70,000 on one parcel and $60,000 on the other.

Matters thus stood on May 2, 1962 when Skatoff and Melbourne filed the original petition herein in the Circuit Court of St. Louis County, seeking an accounting from Michael Alfend under the dissolution agreement of March 31, 1960. The original petition clearly stated an action in personam and there can be no doubt regarding that court’s jurisdiction to entertain the cause. Michael Alfend answered, denying any breach on his part, and in a counterclaim asserted that Skatoff and Melbourne had violated the contract and that he was entitled to an accounting from them. That state of the cause prevailed for more than two years, until August 11, 1964, when Skatoff alone filed a first amended petition, joining Celia Alfend, Samuel Alfend, and the six insurance companies as additional party defendants. Besides pleading the dissolution agreement, Michael Al-fend’s alleged breach thereof and his claim for an accounting, Skatoff in that petition recited the facts regarding the conveyance of the real estate by the three partners and their wives to Michael Alfend, and Michael’s subsequent transfer of the same to Celia Alfend and Samuel Alfend as trustees; alleged that on or about June 26, 1964, “the above described parcels of real estate were destroyed or seriously damaged by a fire” (by which we assume was meant the improvements thereon); and pleaded that the six insurance companies had insured the same and that Michael, Celia and Samuel Alfend were negotiating with the companies for a settlement of the loss and were threatening to collect the proceeds of the insurance without recognizing his claim to the same. Skatoff prayed that the court order a dissolution of the partnership and an accounting by Michael Alfend; “that the Court declare null and void the conveyances of the above described real estate from the partners to defendant Michael Alfend, and from defendant Michael Alfend to defendants Celia Alfend and Samuel Alfend”; that a receiver be appointed to take charge of the partnership assets, including the proceeds of the insurance on the real estate; that after an accounting, a distribution be decreed; that Michael, Celia and Samuel Alfend be enjoined from negotiating for the settlement of the fire loss; and that the six insurance companies be ordered to pay the proceeds of the insurance into the registry of the court. Defendants Michael Alfend, and Celia Alfend and Samuel Alfend as trustees, filed separate motions to dismiss Skatoff’s first amended petition on the grounds that the court lacked jurisdiction because the real estate, the title to which plaintiff sought to set aside, was located in the City of St. Louis. These motions were sustained.

Plaintiff Skatoff thereafter filed a second amended petition which was substantially the same as the first, except that the word “assets” was substituted in lieu of the words “real estate,” and there was included an allegation that the transfer of “assets from Michael Alfend to Celia Al-fend and Samuel Alfend, trustees, was a fraudulent transfer, having the effect of hindering, delaying and defrauding plaintiff Skatoff in his rights as a creditor of defendant Michael Alfend. To this second amended petition defendants Celia and Samuel Alfend, as trustees, filed an answer in which they alleged that the only asset conveyed to them by Michael Alfend were the two parcels of real estate, described by metes and bounds; that the court had sustained their motion to dismiss Skatoff’s first amended petition because the relief sought involved the title to real estate located in the City of St. Louis, so that the court was without jurisdiction; and ended with the prayer that the second amended petition be dismissed as to them and as to the insurance carriers. They also filed their motion for summary judgment in which they prayed the court to dismiss them and the insurance carriers as party defendants, setting forth therein the conveyances of the described real estate by the partners to Michael Alfend, Michael’s subsequent conveyance to them as trustees, and that the only “asset” conveyed to them by Michael was the identical real estate. Their motion to dismiss was supported by the affidavit of Jesse E. Bishop that he was acquainted with all the matters and facts set forth in the motion and that they were true, to the best of his knowledge, information and belief and that he verily believed them to be true. Defendant Michael Alfend filed a motion to dismiss Skatoff’s second amended petition on the grounds that the subject matter thereof concerned the title to real estate located within the City of St. Louis, and not within the jurisdiction of the court. The only opposing affidavit filed on behalf of plaintiff Skatoff was that of his attorney, Irl B. Baris, who stated that Skatoff could not make an affidavit because he was out of town and would not return prior to the time fixed for the hearing on the motion for summary judgment; that he (deponent) had no personal knowledge of the facts, but that Celia and Samuel Alfend were not the legal and equitable owners of the real estate “as a matter of law”; and that Michael Alfend had transferred to them assets other than the real property. Defendant U. S. Fidelity & Guaranty Company filed a separate response, and the other five insurance companies a joint one, in which they alleged that the total loss on the real estate had been agreed to as $84,198.75, and sought by way of a bill of interpleader to be permitted to pay that sum into the registry of the court and to be discharged.

All pending motions, but not the insurance carriers request to interplead, were heard and submitted on October 9, 1964, and on November 17, 1964, the court sustained the motion of defendant Celia and Samuel Alfend, trustees, for summary judgment of dismissal, “* * * for the reason that this Court has no jurisdiction.” It also sustained the motion of defendant Michael Alfend to dismiss plaintiff Skat-off’s second amended petition, “for the reason that this Court has no jurisdiction”; and it dismissed the answers and bills of interpleader of the defendant insurance companies on the same ground. Plaintiff Skatoff then appealed to this court.

It may be stated parenthetically, that the insurance carriers have filed in this court motions to dismiss the appeal as to them (although plaintiff’s notice of appeal did not refer to their part of the court’s order and judgment) on the grounds that all matters relating to them have become moot; that state having been attained, it is alleged, in a subsequent suit filed by plaintiff Skatoff in the Circuit Court of the City of St. Louis in which their hills of interpleader were sustained, the insurance proceeds paid into the registry of the court, and a part thereof, by a stipulation agreed to by plaintiff, paid to various lien holders. Of course, if we lack jurisdiction we may not pass on such motions, so that our first consideration must he directed to that matter.

Essentially, the issue is whether Skatoff’s action is one involving “the title to real estate” within the meaning of Article V, § 3 of our Constitution. If so, then we may not entertain this appeal, for by the terms of that section the Supreme Court has exclusive appellate jurisdiction in all such cases. It has been said that in determining the question of its jurisdiction the appellate court may examine the entire record presented for review. Vordick v. Vordick, 281 Mo. 279, 219 S.W. 59L; Johnson v. Duensing, Mo., 332 S.W.2d 950. And that to preserve its constitutional integrity the court may pierce the shell of pleadings, proof, record and judgment sufficiently far to determine that its proper jurisdiction is not infringed upon, or that improper jurisdiction is not foisted upon it by mere sham or colorable issues. Simmons v. Friday, 359 Mo. 812, 224 S.W.2d 90; Vanmordel v. Thompson, Mo., 315 S.W.2d 121. Applying those principles to the instant case it is obvious from the record that as between the plaintiff Skatoff and the defendants Celia Alfend and Samuel Alfend, Trustees, at least the case is one involving the title to real estate. As revealed by his first amended petition, what Skatoff seeks is to divest those defendants of the title to the real estate which he had joined in conveying to Michael Alfend, who in turn had conveyed it them. If his action were sustained the effect, in short, would be to take the title from one litigant and to give it to another. Herriman v. Creason, 352 Mo. 1176, 181 S.W.2d 502, 503. It is true that in his second amended petition plaintiff sought to evade the force of Section 508.030, RSMo 1959, V.A.M.S., by substituting the word “assets” in place of the term “real estate.” But in determining our jurisdiction we cannot countenance such a patent subterfuge, particularly in view of the statement of those defendants in their motion for summary judgment of dismissal as to them, supported by an affidavit and not effectively denied by plaintiff, that the only asset transferred by Michael Alfend to them was the two parcels of real estate located in the City of St. Louis. Viewed realistically, the record reveals that as to the defendants Celia Alfend and Samuel Alfend, as Trustees, plaintiff’s suit is one to set aside the conveyance of the real estate to them on the alleged grounds that it was made in fraud of plaintiff Skatoff’s rights as a creditor of defendant Michael Alfend. In eases of that nature the title to real estate is directly involved, and hence exclusive appellate jurisdiction thereof is in the Supreme Court. Art. V, § 3, Const. Mo.; Balch v. Whitney, Mo., 273 S.W.2d 497; Goodman v. Crader, Mo., 227 S.W.2d 457; Herriman v. Creason, 352 Mo. 1176, 181 S.W.2d 502.

For the reason stated plaintiff’s appeal is transferred to the Supreme Court.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, plaintiff’s appeal is transferred to the Supreme Court.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: RUARK, Judge.

text:
    S.A. McTURMAN, Plaintiff-Appellant, v. Ervin BELL, Defendant-Respondent.
    No. 8486.
    Springfield Court of Appeals. Missouri.
    Dec. 31, 1965.

      Briney, Welborn & Spain, Joe Welborn, James E. Spain, Bloomfield, for plaintiff-appellant.
    Finch, Finch, Knehans & Cochrane, Jack O. Knehans, Cape Girardeau, for defendant-respondent.
   RUARK, Judge.

S. A. McTurman suffered injuries when his fingers were caught in a sheave. He sued and submitted on the theory that Ervin Bell, his employer, had failed to furnish him a safe place to work. Defendant offered no evidence but stood on his motion for judgment. A jury awarded plaintiff five thousand dollars. The court sustained defendant’s motion to set aside and for judgment in accordance with the previous motion, and plaintiff has appealed.

On appeal the verdict-holder is entitled to benefit of all favorable evidence and inferences therefrom. However, a review of the evidence is not limited to isolated facts but embraces a consideration of all the evidence adduced by the plaintiff. Duke v. Missouri Pacific Railroad Co., Mo., 303 S.W.2d 613(1), and cases cited. Since there is some conflict in plaintiffs case, we must relate the facts in detail.

Plaintiff, fifty-eight years old, a self-styled farmer, had ten or more years’ experience “off and on” in the logging business. He had done logging for various persons and had engaged “many times” in the operation of loading logs on trucks, unloading them, and loading them on sawmill ramps. He had used and was familiar with the use of sheaves, cables, chains, block and tackle, and teams as standard and customary equipment and operation in the logging business. Defendant Bell was a neighbor, but his business and experience are not shown. He had some logs down in a field, and he employed plaintiff to help “snake them out” and haul them to the mill. They had been hauling the logs to a custom sawmill operated by brothers Monroe and John Stevens, who were charging Bell twenty dollars per thousand for sawing his logs into lumber. Apparently the Stevens brothers also did their own logging and sawed lumber for themselves, because on an occasion shortly previous to the one here involved when Bell (and possibly plaintiff) had brought in a load of logs there was no room for them on the unloading ramp or skid. According to plaintiff’s witness Monroe Stevens, “we had our logs on the skid and we had to throw them [he evidently meant customer Bell’s] logs on the ground. * ⅝ * ” “Well you see there wasn’t room on the ramp for them and we had to just throw them out on the yard.” He said, “One load was throwed off right north of the ramp, and the others [the three logs with which we are involved] was around kind of northwest of the shed.”

On the morning of the accident, Bell and plaintiff went down to the field and loaded some logs on the truck. According to plaintiffs testimony, as they started to the mill Bell said, “When we unload this load we’ll load them other logs on where I can get them two by fours cut where I can start my shed.” When they got to the mill they unloaded onto the ramp. Then, according to Monroe Stevens (one of the two sawmill operators), “he was in a hurry for them heavy timbers, and I told him if he would back his truck around there [by the pile of logs in the yard] me and my brother would load them with our team and bring them around there to the front and put them on the ramp where we could saw them and try to get his timbers ready for them.” Accordingly, Bell backed his truck around beside (south of) the logs which had been thrown on the ground northwest of the shed. John Stevens brought his team around, skids were placed against the side of the truck, chains were fastened to the logs, a cable was attached, and the horses pulled the first two logs up on the truck. Up to this point there is not much conflict. The loading operation was being conducted by the Stevens brothers. John was on the south side of the truck with the team, and Monroe was on the north side with the logs. Bell and plaintiff were there with Monroe; and, although neither was requested to do so (or to perform any other act in connection with the loading operation), they (Bell and plaintiff) helped Monroe put chains around the logs prior to the loading.

A third log was larger and heavier, and the horses had difficulty pulling it up the skids. Then the Stevens brothers got their block and tackle (or sheave and cable), which gave them “double horsepower.” One end (on pulley?) was attached to a willow tree somewhere near a fence and south of the truck. (The Stevens brothers say they attached it, but plaintiff says he attached it although not requested to do so.) The horses were hitched to the cable or pulley (plaintiff insists that he held the doubletree for this), and the horses then pulled the log up the skids; but when they had the log up the side almost ready to roll on the truck, the horses reached the fence, could go no farther, and backed up a step. According to plaintiff’s witness Monroe Stevens, “one more little pull and it would have been upon it.” “But the cable wouldn’t go no farther on account of the fence, if they could they would have pulled the log on, it would get right up to the edge of the truck and they didn’t have room to put it on top of it.” According to this witness, he, plaintiff, and Bell were still on the north side of the truck with the logs. When the horses got to the wire and started to back up, plaintiff said, “ ‘I’ll run around and help him,’ and he was gone, just like that.” Plaintiff went around on the south side of the truck. “He [evidently meaning John Stevens] pulled the log up again and they [evidently meaning the team] couldn’t go far enough, and when he backed up I heard him [evidently meaning the plaintiff] holler, the team started backing up and my brother pulled them up again to get his hand out, and then we let the log back down- on the ground.” Plaintiff’s witness, John Stevens, said that he was handling the team on the south, that the others, including the plaintiff, were on the north side. The horses got to the end of the fence “as far as they could go. I told them they’d have to let it back and fix it different, and he run around I guess and put his hand on that, grabbed the cable.” He (plaintiff) was then on the south side of the truck “where he shouldn’t have been.” When plaintiff hollered, Stevens drove the horses forward again so that plaintiff could release his hand from the pulley wheel. Plaintiff testified that he was on the south side of the truck during the entire time after Stevens’ block and tackle was brought out and held up the doubletree while John Stevens hooked to the cable. And then “he started up the horses and I stepped back. The next thing I knowed my hand was in that cable and that’s as far as I knowed about it.” He said he hollered for John to pull the horses up and John did pull them up, and “I got my hand out of the pulley.” He said the cable was over waist high; and he “imagined” that he was about two feet from the cable while the horses were pulling it. He could give no explanation as to how his right hand got onto or was caught in the cable. There was no evidence that the cable swung, jumped, whipped, or otherwise misbehaved. The Stevens brothers were handling the loading operation. No one told plaintiff to do anything to help in the operation, but he did so. After plaintiff got his fingers out of the pulley wheel, Bell took him to a doctor; and the Stevens brothers went ahead and finished the loading while they were gone.

As we have stated, appellant’s submission was on negligence of his employer in failing to furnish a safe place to work— this, we gather, because there was insufficient room to handle the loading operation; and this in turn because a fence, or at least the end of the fence, blocked the path of the horses, thus requiring them to stop their forward pull and causing them to step backward while there was still the weight of the log, and consequently a reverse pull, on the opposite end of the cable. We shall attempt to describe the premises. The sawmill shed ran north and south. The loading ramp was along the east side. Somewhere on the west side of the shed a sawdust trough ran out to the west to a branch; along this trough ran the fence which blocked the further progress of the horses. The evidence does not show whether this trough and fence ran due west, southwest, or northwest. Neither do we know the length of the sawmill shed or the distance from the shed to the end of the fence where the horses stopped and stepped backward, nor whether there was room to go around the end of the fence. The logs to be loaded and presumably the truck parked beside them were northwest of the shed, but we are unable to find how far north and how far west. The whole record does not give any idea whatsoever of the distance from the loading operation at the truck to the end of the fence where the horses stopped.

For the purpose of this opinion, we will assume — without, however, deciding — that when plaintiff suffered his injury he was then acting in the capacity as an employee of respondent. We believe the plaintiff did not make a submissible case for several reasons.

First, in regard to whether the injury resulted from an unsafe place: The employer is not an insurer of the safety of his employees. Liability can result only from a failure to perform a duty owed. 35 Am.Jur., Master and Servant § 121, p. 549; Russell v. St. Louis & S. F. Ry. Co., Mo.App., 245 S.W. 590(1); West’s Missouri Digest, Master and Servant ^lOl^). And if the injury could have resulted from two or more inconsistent and equally inferable causes, and one is as probable as the other, and if the defendant is liable for one cause and not for the other then a finding that it resulted from either one must necessarily be based on. conjecture and plaintiff’s case must fail.

In this case we are unable to determine whether the incident was the result of an unsafe place (in the location of the truck by the logs and the nearness of the fence which may have been the cause of lack of room for the loading operation), or whether it really resulted because of the method used by John Stevens in driving his team. Was the distance from the truck to the end of the fence where the horses stopped the shortest or the longest distance for their operation? If the horses had been headed a little to the left or to the right, would there have been adequate room? It must be remembered that the log was almost on the truck and the added distance required for “one more little pull” to roll it onto the truck was small. Did John Stevens, by sending the team on the most direct and shortest route to the end of the fence, necessarily shorten the distance available for the pull which was reasonably available by the heading of the team at an angle, or possibly around the end of the fence? Another question: The evidence does not show the length of the hook-up between the horses and the log. Was the distance the cable ran out from the log and through the pulley to the doubletree five feet? Ten feet? Twenty feet? Thirty feet? Or farther? How much, if any, space or distance was wasted there ? The evidence does not show. The short or long coupling would make considerable difference in the distance which the horses must travel out from the load to the place where they stopped only a foot or two short of the necessary distance. The longer the hook-up, the shorter space available for the pull. The Stevenses did go ahead and load the log while Bell was taking plaintiff to the doctor. They obviously had to work in this same space. How they changed their method is not shown. We think that deficiency in method on the first try is equally inferable with deficiency in place.

Second: If we assume that the place was unsafe for the operation because of the location of the objects and the lack of room, we are of the opinion that the respondent is not to be charged with liability therefor.

As a general rule the master is not liable for injuries due to defects in the place of work which is furnished by and is under the control of the third person and over which the master has no actual or implied control or appropriate use; especially is this true when he does not actually direct the work. The cases cited by the appellant are those in which the master had, or exercised, some dominance over the place of work. The duty of the master in this respect is substantially the same as that of an owner or occupier to a business invitee. 56 C.J.S. Master and Servant § 219, pp. 929, 930. The basis of such liability is really superior knowledge and ability to rectify and the duty to guard against injury from hidden dangers. Fowler v. Terminal Railroad Association of St. Louis, Mo.App., 372 S.W.2d 497. Hence, the liability in respect to safe place to work usually does not apply when the conditions are as obvious to the invitee (or) servant as they are to the owner (or) master. 65 C.J.S. Negligence § 50, pp. 541, 543; Small v. Ralston Purina Co., Mo.App., 202 S.W.2d 533(3); Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302; Kenward v. Hultz, Mo.App., 371 S.W.2d 344(6).

Thus, where the things used in the work are not, in and of themselves, defective and are of the equivalent character and safety of those customarily used in that type of activity, where the servant is familiar with the work and has opportunity to inspect the premises and the appliances .for himself and thus stands on equal footing with the employer in regard to knowledge, and where there are no hidden dangers, then the master is not ordinarily liable for an injury of the servant which results from a voluntary act of the servant in the use or misuse of such. See Newhouse v. St. Louis Bank Building & Equipment Co., 326 Mo. 1047, 33 S.W.2d 932; Britt v. Crebo, Mo., 199 S.W. 154; Hollingsworth v. National Biscuit Co., 114 Mo.App. 20, 88 S.W. 1118; Whitaker v. Terminal R. Ass’n of St. Louis, Mo.App., 224 S.W.2d 606, 609. Here the plaintiff by reason of his knowledge and experience was at least the equal of the defendant in knowledge of the conditions, and he was not required by the employer to do anything whatsoever.

Ordinarily the duty to provide a safe place is not so strictly applied where the particular place of employment is not fixed and the risk involved therein is a transitory danger incident to the employment, Where the risk arises out of some single or separate occurrence in the moving and shifting activities with which the employee is familiar, and where the master has had no superior opportunity to know and guard against the particular danger.

We are of the opinion that (a) the respondent owed no duty of “safe place,” because he did not have control either of the place or of the operation; but (b) if it could be said that he did have control, the risk involved was a transitory one incident to the work and as well understood by the appellant as by the respondent.

Third: We believe the act of appellant in sticking his hand on the cable in front of the pulley was a separate, independent, and intervening cause of his injury.

Where the employer only creates a condition which in and of itself and in the ordinary course is not a hazard and will not in and of itself cause injury, and the employee, having equal knowledge with the employer, intervenes with a distinct and separate act which he can reasonably foresee will combine with the condition to cause injury, and such intervening act is not at the direction of the employer and is not one reasonably to be expected of the employee in the normal course of his employment, then the original condition is only a remote cause and the act of the employee in intervening so as to cause the injury becomes the efficient proximate cause. The plaintiff was at least as familiar with the conditions and probable result of his own act as was the defendant. Wilburn v. Southwestern Bell Telephone Co., Mo.App., 382 S.W.2d 49, and cases at 55. Strictly speaking, the plaintiff was injured as the direct result of his own “incurred risk.” Dye v. Peterson, Mo.App., 350 S.W.2d 272, 275.

The appellant offers no reason why he put his hand up on the back-running cable which carried his fingers into the pulley wheel. He does not contend that such (ill-advised or unintentional) action was ordered or that it was a part of the normal, expected, or ordinary procedure in an operation of this kind. He does not contend this conduct was consistent with the procedures which attended the loading of logs. Nothing caused him to stumble or be thrown into the cable, and there is no evidence that the tackle or cable misbehaved in any manner. It “just happened.” If his theory of recovery can be sustained, then no employer would ever be safe in sending his employee on an errand onto any business property. See 35 Am.Jur., Master and Servant, § 174, p. 603. We can only repeat that the employer was not an insurer and is not liable for appellant’s misfortune. So far we have avoided the use of the term “contributory negligence”; but, if we are wrong in our previous statements — and we do not think we are — the appellant was, at least, guilty of that. He has no more right to recover than a man who voluntarily sticks his hand into a buzz saw, or his finger into a hornet’s net. The judgment is affirmed.

STONE, P. J., and HOGAN, J., concur.

      . As we understand it, a sheave is the wheel in the block and tackle arrangement whereby heavy articles are lifted or pulled. Simplified, tbe sheave is a pulley wheel over which runs the cable that bears the weight.

      . The ramp was a sort of platform arrangement extending along the east side of the shed so that logs could be unloaded and rolled down to the saw carrier.

      . Coin v. John H. Taiga Lounge Co., 222 Mo. 488, 121 S.W. 1(6), 25 L.R.A..N.S., 1179, 17 Ann.Cas. 888; Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91(5); Kane v. Chicago, Burlington & Quincy Railroad Co., Mo., 271 S.W.2d 518(2); Clymer v. Tennison, Mo.App., 384 S.W.2d 829(6).

      . 56 C.J.S. Master and Servant § 210, p. 918; Small v. Ralston-Purina, Mo.App., 202 S.W.2d 533(4); Allen v. Larabee Flour Mills Corp., 328 Mo. 226, 40 S.W. 2d 597(5); Nichols v. Skelly Oil Co., 175 F.2d 113, 115 (8th Cir.).

      . Redmond v. Quincy, O. & K. C. R. Co., 225 Mo. 721, 126 S.W. 159; Bennett v. Crystal Carbonate Lime Co., 146 Mo.App. 565, 124 S.W. 608, 610-611; Highfill v. City of Independence, Mo., 189 S.W. 801, 803; Zeigenmeyer v. Charles Goatz Lime & Cement Co., 113 Mo.App. 330, 88 S.W. 139(1); Meehan v. St. Louis, M. & S. E. R. Co., 114 Mo.App. 396, 90 S.W. 102; Stone v. Mo. Pac. Ry. Co., Mo., 293 S.W. 367, 370; Pritchard v. Thompson, 348 Mo. 832, 156 S.W.2d 652.

      . 35 Am.Jur., Master and Servant, § 126, p. 555; 65 C.J.S. Negligence § 111, pp. 685, 692; Clymer v. Tennison, Mo.App., 384 S.W.2d 829(9, 10) ; Duke v. Mo. Pac. Railroad Co., Mo., 303 S.W.2d 613(4); King v. Ellis, Mo., 359 S.W.2d 685(4); Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 246; see Labatt’s Master and Servant, Vol. 3, § 1048(147), p. 276.


author: HILL, Judge.

text:
    Bessie H. MILLER, Appellant, v. OLIN MATHIESON CHEMICAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Rehearing Denied Feb. 18, 1966.
    J. T. Hatcher, Hatcher & Lewis, Eliza-bethtown, for appellant.
    William Mellor, Louisville, for appellees.
   HILL, Judge.

The Workmen’s Compensation Board disallowed appellant’s claim for compensation for the death of her husband as a result of myelogenous leukemia (caneer of the marrow of the bone). On appeal to the circuit court, the order of the Board was affirmed. This appeal followed.

James L. Miller, forty-seven years old at the time of his death, went to work for ap-pellee on July 10, 1957. He continued to work regularly with no apparent physical disturbance, other than ordinary stomach disorder, until April 1962. He reported to the Mayo Clinic, Rochester, Minnesota, on December 10, 1962, where he was examined by Dr. M. M. Hargraves, a noted hematologist. His trouble was diagnosed as “chronic, myelogenous leukemia with associated liver trouble.” After returning home December 15, 1962, he became acutely ill and died the following day from “extensive internal hemorrhaging.”

During the period of his employment, deceased worked in appellee’s chemical plant located at Brandenburg, Kentucky. The chemicals with which he worked included ethylene glycol, ethylene chlorahydrogen, propylene oxide, propylene dichloride, ethylene oxide, monobutyl, glycol ethers, dichloral ethyl ether, and ethylene dichloride. Dr. Hargraves testified that in his opinion the death of Miller was caused by exposure to chemicals during his employment at the Olin plant. He also stated that the “liver disfunction” was caused by the same exposure. Yet, he testified his theory was “unproved and unorthodox”; that there were other doctors with other theories “as uncertain as” he was; that his theory was unproved and may require a “half century” to establish; that he has no statistics to support said theory; and that there are no medical texts to support it.

Dr. Hargraves is a specialist with thirty-two years’ experience and observation in one of the truly great medical clinics of the world. But his testimony is not positive.

Dr. Leonard J. Goldwater of New York City testified for appellee. He did not examine Miller but read the history and reports of Dr. Hargraves. His experience consists of public health work, teaching public health and insurance medicine at Columbia University, in examining and testifying for insurance companies, and other public jobs in New York City. He testified that Miller’s disease was not work-connected.

It is shown in the evidence that statistics indicate death from leukemia since 1921 has diminished, while the presence of organic chemicals in the atmosphere has increased.

We have great respect for the qualification of Dr. Hargraves and for his opinion in this case, but careful examination of his testimony leads us to the conclusion that his opinion is too speculative to give it maximum weight favorable to appellant. He admitted his opinion was “educated speculation”. After all, the weight to be given the evidence on a disputed question of fact is for the Board to determine. We have discussed the evidence to a limited extent only to determine whether the order of the Board is supported by substantial evidence. If it is, this Court will not substitute its judgment for that of the Board as to the weight of evidence on questions of fact.

In Miller v. National Cabinet Company, 8 N.Y.2d 277, 204 N.Y.S.2d 129, 168 N.E.2d 811, the Supreme Court of the State of New York set aside a compensation award for death from leukemia from exposure to benzene on the ground that the unproved theory of causation was too speculative.

It is apparent the Board determined the cause of Miller’s death was too speculative.

The order of the Board is supported by substantial evidence and should not be disturbed. Hardman v. Owensboro Forging Co., Ky., 309 S.W.2d 339 (1958), and Consolidation Coal Co. v. Marcum’s Adm’r, 289 Ky. 220, 158 S.W.2d 150 (1942).

It is our conclusion as is stated in Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443, 445 (1954): “that the evidence of the claim was not so clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law in reaching its additional finding that the injury (disease) did not arise out of and in the course of his employment.” See also Lee v. International Harvester Company, Ky., 373 S.W.2d 418 (1963).

The judgment appealed from is affirmed.


author: MILLIKEN, Judge.

text:
    William J. PRITCHETT, Appellant, v. Robert G. HERBER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Rehearing Denied Feb. 18, 1966.

      Matthew B. Quinn, Jr., Freeman B. Blackwell, Louisville, for appellant.
    J. Walter Clements, James M. Clements, Louisville, for appellee.
   MILLIKEN, Judge.

This case involves the question of damages resulting from an automobile collision in November, 1962, at the unmarked intersection of 38th and Duncan Streets in West Louisville. Neither street was an arterial highway.

Appellee Herber sought to recover $5,600 for special and personal injury damages, and appellant Pritchett sought damages in their entirety in the sum of $20,350. A jury heard the evidence and instructions of the ’trial court and returned a verdict under the so-called “dogfall” instructions. Appellee Herber has not filed a cross-appeal. To properly dispose of this case we will look at the instructions and determine whether they were correct.

As stated, the accident occurred at the intersection of 38th and Duncan Streets. Appellant testified that he stopped on Duncan (which runs east and west, with a zigzag or dog-leg at 38th Street and about 40 feet to the north on 38th) six or eight feet short of 38th (which runs north and south); that he looked north and saw ap-pellee coming south on 38th about 250 to 275 feet away; that he looked south on 38th and no one was coming. He observed appellee two or three seconds, during which time appellee traveled 40 or 50 feet down 38th. He then started his car out into 38th Street preparatory to making a left turn onto 38th so that he could then make another turn to the right maintaining his travel route on Duncan. He did not look left anymore until he heard the screeching tires of appellee’s car about 60 feet to the left. Appellee applied his brakes in an effort to avoid the accident, and in so doing skid marks from his car were “stepped” to be about 30 feet. Appellee hit appellant’s car on the left fender above center of the wheel, with an alleged resulting damage of $300 to the car and $50 for loss of its use. Several witnesses testified that the positions of the cars immediately after the collision were such that other cars could travel between them and the curb on both sides of the wrecked vehicles. However, the area on the east side was less than on the west side, indicating that the accident happened slightly east beyond center.

Appellant argues that the instructions are clearly erroneous inasmuch as they do not properly outline the statutory duties of the parties approaching the intersection of the two streets. The trial court failed to give an instruction based on KRS 189.330(2) to the effect that “ * * * the operator of a vehicle shall yield the right of way at the intersection of their paths to a vehicle approaching from the right unless the vehicle approaching from the right is further from the point of intersection of their paths than the first named vehicle,” but instead, in Instruction 1(e) the trial court told the jury that Pritchett had the duty to see to it that he had “sufficient space and time before entering the intersection of 38th and Duncan Streets * * * to bear to the left * * * ” in order to proceed eastwardly on Duncan Street, apparently assuming that the proper law to apply was the provision giving the right of way to the vehicle proceeding in a straight line — -that of Berber's. The trial court felt that the jogging nature of Duncan Street’s path across 38th Street justified such an instruction based on KRS 189.330(1), citing Barnes v. Jones, Ky., 351 S.W.2d 506, and other cases.

Under the statute governing intersections, KRS 189.330(2), it is certain that Pritchett had the right of way at the intersection if he got there first. The turn to the left was necessarily subsequent to the determination of which of the two vehicles had the right of way at the intersection, and the jury had to make that determination under an instruction based upon KRS 189.330(2), aforequoted in part.

The judgment is reversed for proceedings consistent herewith.


author: WILLIAMS, Judge.

text:
    WHEELER AND LEMASTER OIL AND GAS COMPANY et al., Appellants, v. Jack HENLEY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Rehearing Denied Feb. 18, 1966.
    J. K. Wells, Paintsville, for appellants.
    W. Howes Meade, Paintsville, for appel-lee Jack Henley.
    W. A. Johnson, Paintsville, for appellees Mary Evelyn Howes Johnson and others.
   WILLIAMS, Judge.

This is a suit to quiet title brought by the owners of the working interests of an oil and gas lease on property located in Johnson County. The case was submitted solely upon the issue of whether the oil and gas lease dated July 8, 1922, and subsequent assignments thereof, had been “abandoned or was still in effect” at the filing of this action. The trial judge found that the lease had been abandoned and the lessees have appealed from that judgment.

The original lease from which appellants have derived their interest was entered into on July 8, 1922. The terms of the lease provided that it would remain in force for a term of five years from date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee. Summers, in his treatise on Oil and Gas, refers to this condition as a “thereafter” clause. Summers, Oil and Gas (1959), section 305, p. 321.

Thirteen wells were drilled on the leasehold in the first five years. Through the years, production declined to the point that only 90.28 barrels were produced in 1960, and up to April 8, 1961, when production ceased, only 19.52 additional barrels had been produced. After almost 12 months of non-production, the appellants began pumping again for four or five days. That was the only pumping done up to the time of this lawsuit (October 19, 1963).

During this period appellants made several unsuccessful efforts in attempting to find a buyer for the lease who was financially able to resume production by a secondary or “water flood” recovery. The secondary method of production had become essential since primary recovery methods were no longer economically feasible. In August 1963, the lessors executed a “top lease” to appellee Henley, and this lawsuit resulted.

In Cameron v. LeBow, Ky., 338 S. W.2d 399, 406, we specifically enumerated “two distinct and different grounds upon which a lessee of an oil and gas lease, or an assignee, may lose his interest. One is by forfeiture for breach of an express or an implied covenant or obligation. The other is by abandonmentEither of these two grounds is applicable in some cases, especially where the primary term has not expired. However, in the instant case, the primary term has expired and appellants have retained their leasehold interest by producing oil from the property.

In addition to the two grounds listed in Cameron v. LeBow, supra, there is,- of course, a third ground by which a lessee of an oil lease may lose his interest; a case where the lease expires pursuant to its own terms. After the primary term has run, “if production ceases, the lease is at an end, although a temporary cessation of production does not terminate the lease.” Summers, Oil and Gas, supra, at pages 323, 324. This Court has qualified the above rule in Lamb v. Vansyckle, 205 Ky. 597, 266 S.W. 253, 254, by stating:

“ * * * nor are we willing to adopt the rule that a lease which is to continue for a definite period, and so long as oil or gas is produced in paying quantities, ipso facto terminates whenever production or development ceases for a brief period of time. On the contrary, we have reached the conclusion that the only fair and just rule is to hold that the lease continues in force unless the period of cessation, viewed in the light of all the circumstances, is for an unreasonable time. ⅝ ⅝ ⅜ >t

Oklahoma adopted this rule as announced in Lamb v. Vansyckle, supra, considering it' to be the soundest and most equitable, in Cotner v. Warren, Okl., 330 P.2d 217 (1958).

In Gasaway v. Pendergrass, Ky., 350 S. W.2d 460, 463, the real issue was anticipated. “ * * * Had the well been a producer, thus keeping the lease in force, and had thereafter declined to a point at which waterflooding was resorted to as a secondary recovery method, we should then have been faced with the question of how long a lessee’s unsuccessful experiments can keep a lease alive in th'e absence of production; * *

The issue of what is an unreasonable time must be determined by the facts and circumstances surrounding each case. Here, non-production has related back for a period of two years and four months, except for four days of token pumping which resulted in only a negligible amount of oil being produced which was never sold, and no oil has been sold since February 1, 1961. The record likewise indicates that the lessors had not received any royalty payments in the previous ten years. We take notice of the fact that it was no longer profitable to operate the lease by primary recovery methods, and it had become necessary to “water flood” the lease. We understand that a lessee can’t be expected to find a buyer overnight who is financially able to assume an expensive project such as “water flooding.” However, since the wells had not been producing profitably for at least a period of ten years, appellants should have been aware of the problem, and they had more than a sufficient opportunity to finance the project or find a buyer who could do so. This is especially true in light of the fact that the “water flooding” method was proving to be so successful on. property surrounding the leasehold in question. Also, appellants refused two offers to have the lease “water flooded.”

In view of the above circumstances, we conclude that the delay in production of over two years was sufficiently unreasonable to terminate the lease under the provisions of the habendum clause of the lease. This Court recognizes a strong policy against a lessee holding land for an unreasonable length of time simply for speculative purposes, or because of a lack of due diligence, where the lessor’s only revenue results from royalty payments received from continued production.

The judgment is affirmed.