author: DOERNER, Commissioner.

text:
    Fred J. GOOD, Plaintiff-Appellant, v. Clara F. GOOD, Defendant-Respondent.
    No. 31821.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
    Edward J. Wynne, St. Louis, for defend-; ant-respondent.
   DOERNER, Commissioner.

This is an appeal by plaintiff, Fred J. Good, from a post decretal order granting defendant permission to remove the minor children of the parties to another state.

A decree of divorce was rendered in favor of plaintiff by the Circuit Court of the City of St. Louis on November 14, 1961. By the same decree the court awarded custody of the minor children, Linda and Keith, to defendant, granted reasonable visitation rights to plaintiff, and ordered plaintiff to pay defendant $17.50 per week for the support of each child. On November 1, 1962 defendant married David J. O’Leary, and her name is now Clara F. O’Leary. At that time Mr. O’Leary was the district manager of the industrial division of J. I. Case Company, located in St. Louis, his territory covering the states of Missouri, eastern Kansas and western Illinois. Subsequently his employer advised him that he would be transferred to Florida. In anticipation of the actual transfer, defendant filed a motion on January 25, 1963 in which she alleged that Mr. O’Leary was to be transferred, that he had purchased a home at Winter Park, Florida, and prayed for an order granting her permission and authority to take Linda and Keith to that state.

The hearing on defendant’s motion was held on June 13,1963. Defendant’s evidence established that Linda and Keith were then 4 and 2 years of age, respectively; that she had always properly cared for them; that Mr. O’Leary had been transferred to Florida on May 1, 1963, and had purchased a three-bedroom home in Winter Park, pictures of which were introduced in evidence; and that Mr. O’Leary had had some experience with young children and was fond of Linda and Keith. Defendant conceded that plaintiff had faithfully made his payments for the support of the children, and stated that about once every two months plaintiff “picked up” Linda and took her out.

Plaintiff testified that he hand delivered the support money to defendant at her home each week, and would visit with the children for from 15 to 30 minutes on such occasions; that every couple of months he took Linda to a parade or picnic, has visited her on Christmas Eve and Easter, and still desires to visit with his daughter once a week; that he was a service manager for an automobile agency and had earned $6700 in 1962; that he only gets two weeks vacation a year; and that he did not want Linda to live in Florida with O’Leary. Shirley Mae Good, plaintiff’s present wife, testified that she had observed the children at various times and that the little girl says only a few words.

On the plea that the defendant desired to leave with the children for Florida on Saturday of the week in which the hearing was held the court made a temporary order permitting her to do so provided that plaintiff filed a bond in the amount of $500 conditioned upon the return of the children to the state of Missouri. Thereafter, on September 23, 1963, the court entered an order sustaining defendant’s motion to remove the children to Winter Park, “ * * * until the further order of the Court, this Court retaining original jurisdiction of this cause and these minor children.” The order was conditioned on the defendant giving a performance bond in the penal sum of $500, with surety to be approved by the court, judge or clerk in vacation, “for the faithful compliance with this order or any further order as this Court may order or decree.” Defendant raised no question in the trial court regarding its authority to require a bond, and raises none now. See Jeans v. Jeans, Mo.App., 348 S.W.2d 145. The record shows that she filed the bond, with the Resolute Insurance Company as surety, and that it was approved by the court.

In form, plaintiff raises only one point in his brief. In fact, however, we discern at least four in his page-long assignment of error. The first is that the evidence showed that defendant had no intention of returning the children to Missouri if ordered to do so. Plaintiff misconstrues defendant’s testimony. A fair reading of the transcript reveals that the defendant twice stated that she would return the children to Missouri so that they could visit plaintiff if the court entered such an order. Mr. O’Leary also testified to the same effect.

Plaintiff’s next contention is the abstract statement that the law of Missouri favors the children remaining in the jurisdictional area of the court. In support thereof plaintiff quotes that part of our opinion in Baer v. Baer, Mo.App., 51 S.W.2d 873, 878, in which we said:

“Generally speaking, it is against the policy of the law to permit the removal of a minor child to another jurisdiction, due principally to the fact that upon the entry of a decree of divorce, the child becomes the ward of the court, and that upon its removal to another state, any subsequent order made pursuant to the court’s continuing jurisdiction may be difficult, if not impossible, of enforcement. * * * ”

But plaintiff conveniently ignores the remainder of the same paragraph, in which we stated:

“ * * * However, the obstacle of nonresidence is not to be regarded as an insuperable one; and notwithstanding the fixed policy of the courts, the removal of a child will nevertheless be permitted in those instances where it is made clearly to appear to the court that the best interests of the child itself will be thereby subserved. State ex rel. Shoemaker v. Hall (Mo.Sup.) 257 S.W. 1047; Conrad v. Conrad, supra [Mo.App., 296 S.W. 196] ; Wald v. Wald, 168 Mo.App. 377, 151 S.W. 786; Sanders v. Sanders, supra [223 Mo.App., 14 S.W.2d 458]; Rone v. Rone, supra [Mo.App., 20 S.W.2d 545]; Jennings v. Jennings, 85 Mo.App. 290; Meredith v. Krauthoff, supra [191 Mo.App. 149, 177 S.W. 1112]; Hartman v. Hartman, supra [Mo.App., 28 S.W.2d 414]; Tatum v. Davis, 144 Mo.App. 125, 128 S.W. 766.”

In accordance with that test, our courts have readily permitted children to be removed to another state, Fago v. Fago, Mo. App., 250 S.W.2d 837; Graves v. Wooden, Mo.App., 291 S.W.2d 665, and even to a foreign country, Lane v. Lane, Mo.App., 186 S.W.2d 47, when it appeared that it was to their best interests to do so. Conversely, they have denied permission when such interests would not be served. Baer v. Baer, supra; Dupree v. Dupree, Mo. App., 357 S.W.2d 241; Klott v. Klott, Mo. App., 364 S.W.2d 643.

It is also insisted by plaintiff that no facts constituting extraordinary circumstances or changes in condition were shown which warranted the order made. We cannot agree. In fact, in the light of the problem presented to the court we fail to see what other decision could have been made. On behalf of defendant it was shown that she had entered into a second marriage, with an experienced business man occupying a position of responsibility with a large concern. The exigencies of his employment required him to leave St. Louis and establish his residence in Florida, where he had purchased a comfortable home for defendant and her children. Defendant, of course, wished to reside with her present husband, and to take Linda and Keith with her. Both children are at those tender ages when, all things being equal, it is the policy of the courts to place minors of their years in the custody of their mother. Oliver v. Oliver, Mo.App., 325 S.W.2d 33. They have, in fact, been in the exclusive care, custody and control of defendant since the decree of divorce was granted, and, in the case of Keith, almost since his birth. Plaintiff conceded that he had considered defendant to have been “a good mother” to the children during the time of their marriage, and the record is utterly devoid of any evidence that she has neglected or failed to properly care for the children since the marriage was dissolved. On the other hand, plaintiff’s approach to the problem presented was entirely negative. He opposed defendant’s request for permission to remove the children to Florida, but he offered no alternative solution regarding their custody. Although he has also remarried, plaintiff presumably did not want to assume the responsibility and burdens of the care, custody and control of the children, either in whole or in part, for he filed no counter-motion to that end. Thus the court was faced with the choice of permitting defendant to remove the children to Florida, where her present husband resides, and where the children can be raised in a normal, homelike atmosphere; or of denying defendant’s motion, which would have required defendant to separate from her present husband and continue to reside in St. Louis with the children, or, possibly, to abandon the children and follow her husband to Florida. We think that under the circumstances the court’s decision was eminently correct.

Plaintiff’s final point is that it is to the best interests of the children to continue to visit and to know their father, and that the effect of the order is to deprive plaintiff of his rights of visitation. We thoroughly agree that ordinarily it is to the best interests of the children to continue to receive the benefits to be derived from association with both parents, when both are proper persons. Patterson v. Patterson, Mo.App., 375 S.W.2d 614; Lewis v. Lewis, Mo.App., 301 S.W.2d 861. But it is obvious that under the peculiar circumstances existing in the instant case the pattern of short, weekly visits with the children which plaintiff had heretofore followed, together with occasional outings, must yield to what from a comprehensive viewpoint is requisite for the welfare and best interests of the children. For in all proceedings involving the custody of children the welfare and best interests of the minors is the paramount consideration, to which all others must submit. In re Duncan, Mo., 365 S.W.2d 567; Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484; C v. B, Mo.App., 358 S.W.2d 454. It is pertinent to point out that by a counter-motion plaintiff could have requested the court to award him temporary custody of the children at suitable times during the year. Both defendant and her present husband testified to their willingness to comply with any order the court might make regarding the return of the children to Missouri. However, plaintiff did not make any request for such relief in the trial court, and does not seek it here.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM:

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

RUDDY, P. J., WOLFE, J, and SAMUEL E. SEMPLE, Special Judge, concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    J. Raymond BRUMMET, d/b/a Capital Realty Company, Plaintiff-Respondent, v. Robert LIVINGSTON, Defendant-Appellant.
    No. 24042.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.
    Application to Transfer Denied Feb. 8, 1965.

      William A. Seibel, Jefferson City, for appellant.
    David Brydon, Graham & Hawkins, Jefferson City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for recovery of Commission alleged to be due him by reason of the sale of a parcel of real estate in Jefferson City. A summary judgment was rendered for plaintiff, in the sum of $847.50. Defendant appeals.

Plaintiff’s petition is in quantum meruit. He alleged that he is a licensed real estate broker; that, sometime prior to April 12, 1958, defendant was the owner of a parcel of real estate located at 418 Castle Drive, Jefferson City, which he wished to sell; that defendant authorized ■ plaintiff to find a buyer for it; that plaintiff, on April 12, 1958, produced a buyer for the property; that such buyer was ready, able and willing to buy; that defendant entered into a written contract with said buyer, agreeing to sell the property to him on terms mutually agreed upon; that a copy of that contract is attached to the petition and made a part thereof; that, upon signing of the contract, plaintiff was entitled to a reasonable fee for his services; that a reasonable fee was 5% of the sale price agreed upon ($16,950.00) or the sum of $847.50.

Defendant filed an answer in the nature of a general denied. Defendant submitted interrogatories to plaintiff which were answered as ordered by the Court. Plaintiff requested certain admissions, which were made by defendant. Prior to trial, plaintiff submitted affidavits in support of his motion for summary judgment, under the provisions of Civil Rule 74.04(a), V.A.M.R. The motion for summary judgment was sustained and judgment for plaintiff was entered. Defendant submitted no proof.

It is the law that a summary judgment may he entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. The proof submitted should leave no room for controversy and should show, affirmatively, that the other party would not be entitled to recover under any discernible circumstances. Brown v. Prudential Insurance Co., Mo.App., 37S S.W.2d 623, 628. A summary judgment may be entered after the pleadings, depositions, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Brown v. Prudential Insurance Co., supra, 375 S.W.2d 628, 629.

The proof submitted for plaintiff was to the effect that plaintiff was a duly licensed real estate broker, engaged in that business in Jefferson City; that, on March 4, 1958, defendant appointed plaintiff as his exclusive agent to sell the real estate here involved, and in the written memorandum thereof provided: “if this property is sold during the time this agreement is in force by anyone, or if sold to anyone to whom said property was submitted by Capital Realty Co., within three months of the termination date thereof; then, in that event, the undersigned shall pay Capital Realty Co., five percent of the sales price as their commission due”; that plaintiff showed the property to Mr. Hayes and, on April 12, 1958, within three months of the termination date of the above written authority of plaintiff as exclusive agent, defendant and Hayes entered into a written contract for the sale of the property to Hayes on terms mutually agreeable, for $16,950.00, providing for delivery of deed, possession, and closing on May 30, 1958; and that the sale contract provided: “Commission payable when contract is signed to Capital Realty Co.”

The proof also showed that, less than one week after the contract was signed, Mr. Hayes observed a Mr. and Mrs. Jaeger moving into the property, and that defendant delivered to the Jaegers a warranty deed to the property on May 6, 1958.

Defendant filed a general denial with no affirmative pleading. He admitted his signature to the written instruments whereby he gave exclusive authority to plaintiff to sell the property and to pay him a commission of 5% on the sales price, and to the contract of sale of the property to Hayes, as above mentioned. He relied on his answer and filed no counter affidavits or other proof prior to rendition of the summary judgment, as he might have done under the provisions of rule 74.04(c). After rendition of the judgment, defendant filed motion to set aside the judgment and asked for a jury trial or, in the alternative he asked for a new trial. He also filed supporting affidavits. The motion was over-ruled and defendant appealed.

Defendant, in his brief, set out “points” in support of his claim that rendition of the judgment was erroneous. One such point is to the effect that, while plaintiff declared on quantum meruit, the evidence, if it supports anything, supports a claim based on contract. Plaintiff sued on quantum meruit but he introduced into evidence his contract of employment to sell the property, as proof of the value of his services. This was proper. Stewart v. Droste, Mo.App., 294 S.W.2d 600, 603; Fuldner v. Isaac T. Cook Co., Mo.App., 127 S.W.2d 726, 731.

The remainder of the brief is based generally on the theory that plaintiff, in order to recover, was required to establish by unassailable proof that Hayes was financially “able” to buy the property according to the terms stated in the contract of sale executed by Hayes and defendant. He contends that, when the Court sustained the motion and entered judgment, there was an issuable fact that should have been tried to a jury, to-wit: the financial ability of Hayes to secure a loan and pay for the property. His position is that plaintiff was required to prove this fact by unassailable proof.

In Sargent v. Wekenman, Mo.App., 374 S.W.2d 635, 639, it was held that, in order to recover his commission, a real estate broker must show that he produced a buyer who was ready, willing, and able to buy on the terms set out by the owner or those satisfactory to him; and that, ordinarily, the word “able”, as used in connection with a real estate purchaser, refers to his financial ability. In that case, however, the defendant vendor refused to accept the purchaser produced, and refused to execute a contract of sale, for the expressed reason that it did not believe that the proposed purchaser was financially able to carry out the terms and conditions of the lease.

In Isaac T. Cook v. Craddock-Terry Co., Mo.App., 109 S.W.2d 731, the Court stated that the above is, ordinarily, the rule. But the Court held that, where the vendor makes a valid and binding agreement for the sale of land, with the customer produced by the agent, absent any specific provision contrary thereto, the principal thereby accepts the customer as being ready, willing and able to buy the land and to pay for it; and that the agent’s commission is then due, although it may afterwards turn out that the customer was not financially able to buy. In such cases it is not necessary that the broker prove that the purchaser was ready, willing, and able to buy. The Court further said that a principal may if the circumstances warrant, impugn the good faith of his agent, and plead fraud on his part in the procurement of the contract. This Court has declared the above rule to be well settled law. Chamberlain v. Amick, Mo.App., 210 S.W.2d 528, 530. Fraud is an affirmative defense, and must be pleaded and proved. Weitzman v. Weitzman, Mo., 156 S.W.2d 906, 908-909. No such defense was pleaded, and no evidence was offered by defendant prior to the rendition of the judgment.

The Court did not err in rendering summary judgment as there was no genuine issue as to any material fact, and plaintiff was entitled to recover as a matter of law. The judgment was rendered upon unrebutted and unassailable proof of all material issues required to be proved by plaintiff. Brown v. Prudential Insurance Company of America, supra.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: BROADDUS, Presiding Judge.

text:
    Donald T. SHEMWELL and Keith North, Plaintiffs-Appellants, v. Vesta AILSHIRE and Wilber Ailshire, Doing Business as Independence Memorial Airport, Defendants-Respondents.
    No. 24065.
    Kansas City Court of Appeals. Missouri.
    Oct. 5, 1964.

      Arthur J. Kase, Kansas City, for appellants.
    Clem W. Fairchild, Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for respondents.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries brought by Donald T. Shemwell and Keith North in separate actions against Vesta Ailshire and Wilber Ailshire, doing business as Independence Memorial Airport. Both actions by agreement of the parties were consolidated for the purpose of trial on the question of liability only. At the conclusion of plaintiffs’ evidence the trial court directed a verdict for defendants and plaintiffs have appealed.

The defendants were the owners of an aircraft which they leased to the plaintiffs. The plaintiff North was a licensed pilot, having received his license in 19S9. On February 23, 1961, plaintiff North accompanied by the plaintiff Shemwell went to the Independence Airport and there made arrangements to hire an airplane from the defendants. The maintenance and cost of fuel were to be taken care of by the defendant Mr. Ailshire and the only thing the plaintiffs were required to do was to fly the plane. Neither plaintiff was a mechanic licensed to make inspections of the aircraft. All inspections were made by the defendants. The aircraft was taken for a test run that day by the plaintiff North in the company of a test pilot furnished by the defendants. It suddenly without warning started to sputter as it reached an altitude of 250 feet and had to return to the ground. The malfunction of the aircraft engine was reported to defendant Mr. Ailshire by the test pilot. On February 25, 1961, the plaintiffs North and Shemwell and a Mr. Martin returned to the Independence Memorial Airport for the purpose of taking the same aircraft that Mr. North had leased to Springfield, Missouri. He was checked again by a test pilot furnished by the defendants. He completed his check ride and was given approval to take the aircraft. The plaintiff North, his passengers, plaintiff Shemwell and Harvey Martin, took off from the Independence Memorial Airport at approximately 8:30 in the morning on their way to Mansfield, Missouri. The aircraft was flown by plaintiff North from Independence to Springfield and no problems were encountered. All proper flying procedures were followed in flight and landing. At Springfield, the aircraft was fueled; gasoline and a quart of oil were added. The gasoline added was the proper octane, and no other inspection or actions were taken in respect to the servicing of the aircraft at Springfield. In flying from Springfield to Mansfield Airport, no difficulties were experienced. The same procedure was followed in flying the aircraft as was used in flying from Independence to Springfield. In making his approach for a landing at Mansfield Airport the plaintiff North used a power approach', which was the most cautious method of approach. He observed wires immediately ahead of him as he began to land. There was a recommended procedure for the operation of the Lycoming Engine used in this particular aircraft. There were three requirements: The throttle should be open, the fuel mixture kept in full rich position, and the carburetor heat kept in full heat position. The plaintiff followed these instructions as directed by the Lycom-ing Engine Manual in landing the aircraft. The engine suddenly quit and the propeller came to rest in an upright position visible from the window of the aircraft as' it approached the field. The engine lost power and the pilot was unable to maintain altitude so that its undercarriage struck the power line. The aircraft continued forward and rolled to a landing. After traveling a short distance on the ground, the aircraft suddenly halted, pulled backwards and nosed over. The wire from the power lines had become entangled in the nose gear of the plane. There was some damage to the aircraft, but the engine itself was intact. The next time the plaintiff North saw the aircraft engine it was all unassembled, lying on the floor of a garage in Independence, Missouri, at the home of a mechanic, Mr. John Abbots. The aircraft engine was inspected by Mr. William Benjamin, an inspector for The Federal Aviation Agency, at the home of the mechanic, John Abbots, in Independence. No other inspection was made of the engine by the government. When the inspection was made, the engine was found to be disassembled. Because the engine had been disturbed, Mr. Benjamin was unable to determine whether or not there had been a malfunction of the engine. During the inspection Mr. Benjamin determined that a spark plug was used which was not eligible by government specifications for installation in the Lycoming Engine. There was no evidence that defendants either did or had the right to exercise control over the maintenance of the aircraft prior to the accident, or that the defendants in any manner caused the engine to be dismantled after the accident.

Plaintiffs contend that the trial court erred in sustaining defendants’ motion for a directed verdict at the close of plaintiffs’ evidence for the reason that plaintiffs made a submissible case under the res ipsa loquitur doctrine.

In the case of Plutchins v. Southview Golf Club, Inc., Mo.App., 343 S.W.2d 223, 224, this court said:

“One of the necessary elements in a res ipsa loquitur case is that the thing causing the injury must be under the control of the defendant at the time of the injury. Maybach v. Falstaff Brewing Corporation et al., 359 Mo. 446, 222 S.W.2d 87; Hall v. Lewis, 364 Mo. 1096, 272 S.W.2d 260, 261. Therefore, if plaintiff’s first amended petition does not state facts which show that defendant had control or right of control at the time the injury occurred, the doctrine of res ipsa loquitur will not apply.”

We quoted the following from the case of Maybach v. Falstaff Brewing Corporation, 359 Mo. 446, 222 S.W.2d 87, 90:

“An essential element of the res ipsa [loquitur'] doctrine is that proof of the occurrence and attendant circumstances shall point, prima facie, to negligence on the part of defendant. Such proof cannot, without further proof, point to the negligence of a defendant who is entirely out of control of the instrumentality at the time it causes the injury. Such proof may tend to indicate negligence on the part of some one, but further proof is necessary to definitely fix the blame on the defendant by excluding causes for which1 he is not responsible.”

Both plaintiffs testified that the engine ran smoothly and with no indication on the entire flight from Independence to Springfield and from Springfield to a point somewhere on final leg of the landing approach to Mansfield. This included the run-up at Independence, three or four touch-and-go landings during the check ride at Independence, take-off at Independence, the flight to and landing at Springfield, the run-up and checking instruments again at Springfield, the take-off at Springfield and the flight to Mansfield. In all, North, had taken off at least five times (at such times the engine is operating under maximum stress), had landed the aircraft four times, and had flown over two hundred miles, only to have the engine without any audible indication of malfunction stop somewhere in the final leg at Mansfield.

Can it be said that from the common experience of mankind, the occurrence described would not have happened in the absence of defendants’ negligence?

Plaintiff North was a licensed pilot who had flown 140 hours as pilot in command. He was asked on cross-examination: “Q. Well, now, do you have any judgment— you have testified as an expert for Mr. Kase as knowing about engines — do you have any judgment as to just what malfunction occurred on this day? A. No, sir, I don’t.”

Similarly, the plaintiff, Shemwell, who had flown 600 hours as pilot-in-command, and who had worked on Pratt & Whitney Engines, was asked on cross-examination: “Q. Well, with your mechanical background, working on aviation engines, and with your experience as a pilot, did you determine any cause for this accident that occurred down there? A. No. Q. You have no knowledge of the cause? A. No. None whatsoever. I have thought about it a thousand times ?”

If neither of the plaintiffs with their experience with aircraft can determine a possible cause of malfunction, how can they claim that the common experience of mankind would lead a jury to infer malfunction due to negligence?

The facts of the accident are simply explained by plaintiff North’s own actions. He came in too low. He had failed to clear out the carburetor to prevent flooding. Then when he needed the power, he tried to get it but the engine flooded and stopped. This explanation is clearly most reasonable. Certainly, plaintiff North cannot claim that he had ruled out all other causes for which defendants are not responsible. Plaintiffs’ evidence falls completely short of the requirements laid down in the Maybach case, and especially the element of defendants’ control at the time of the accident.

The judgment is affirmed. All concur.


author: MAUGHMER, Commissioner.

text:
    Bernard Leroy LIVERMAN, Respondent, v. William B. WAGNER, d/b/a Bill Wagner’s 33-71 By-Pass Service Station, and United States Fire Insurance Company, Appellants.
    No. 24095.
    Kansas City Court of Appeals. Missouri.

      Oct 5, 1964.

    Application to Transfer Denied Feb. 8, 1965.

      Fred J. Freel, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for appellants.
    Max Von Erdmannsdorff, Sevier & Turn-age, Liberty, for respondent.
   MAUGHMER, Commissioner.

This is a Workmen’s Compensation case.

The plaintiff, Bernard Leroy Liverman, was in the general employment of the defendant Wagner as a service station attendant. Wagner, for advertising purposes, sponsored Liverman’s activities as an automobile “drag racer”. On July 28, 1962, plaintiff, with the permission of his employer, drove the service station truck on a trip to pick up an engine for installation in the racing car. While on this trip an automobile accident occurred and plaintiff sustained injuries.

After a hearing on his claim for benefits, the Industrial Commission entered a final award allowing plaintiff the sum of $9,331.-77. Defendants, the employer and the insurer, appealed from the judgment of the circuit court which affirmed that award. On appeal they assert that claimant’s injuries did not arise out of and in the course of his employment and the Commission’s conclusion that it did so arise, is not supported by “sufficient competent evidence”.

The burden is upon claimant to bring himself within the applicability of the Workmen’s Compensation Act. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, 333; Wilkerson v. Potashnick, Mo.App., 226 S.W.2d 402, 403; McCaleb v. Greer et al., 241 Mo.App. 736, 267 S.W.2d 54, 59.

An appellate court, in reviewing an award by the Industrial Commission, must consider the evidence in the light most favorable to the prevailing party. Harper v. Home Imp. Co. et al., Mo., 235 S.W.2d 558. Neither this court nor the circuit court may substitute its judgment for that of the Commission but rather must approve and affirm the Commission’s award if upon the whole record it is supported by •competent and substantial evidence. Constitution of 1945, Art. V, Sec. 22, V.A.M.S.; Brown v. Griesedieck Western Brewing Co. of Missouri et al., Mo.App., 250 S.W.2d 803; Long v. Mississippi Lime Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170.

In attempting to define the phrase “arising out of and in the course of such employment”, (Sec. 287.020(6), V.A.M.S.) .and in determining if this requirement has, under a given state of facts, been met, certain rules of consideration and approach Lave been laid down by our appellate courts. Every such case should be decided upon its own particular facts and circumstances. Goetz et al. v. J. D. Carson Co. et al., 357 Mo. 125, 206 S.W.2d 530; Foster v. Aines Farm Dairy Co. et al., Mo., 263 S.W.2d 421, 423. An injury arises “out of” the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. And an injury arises “in the course ■of” the employment when it occurs within the period of his employment, at a place where he may reasonably be and while he ■is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto Foster v. Aines, supra; Goetz v. J. D. Carson Co., supra; Tabor v. Midland Flour Milling Co. et al., 237 Mo.App. 392, 168 S.W.2d 458.

, Concisely stated, we must here de■cide if the Commission’s determination that claimant’s injury was the result of an accident “arising out of and in the course of” his employment, is supported by substantial and competent evidence on the whole record.

Claimant testified that prior to the accident on July 28, 1962, he had been employed at defendant’s service station located at the junction of highways 33-71, Liberty, Missouri, for “approximately a year” as an attendant. His regular duties included the normal ones of servicing cars, pumping gas, changing oil, repairing tires and occasionally making calls with the service truck. In November or December, 1961, he “acquired a competition coupe auto body” and began assembling various parts for the car which he planned to use in drag racing competitions. He entered his first race in May, 1962, and the entry was announced as “Bernard Liverman— Pussy Cat — sponsored by Bill Wagner’s 33-71 Service Station”. Plaintiff said that prior to this first race defendant “had consented to the sponsorship of my car” and “we got together and drew out on paper and decided what kind of sign would be most impressive to the public and upon that decision he told me to go to Bob Kimbrough down by North Town or Gladstone to have the lettering done”. Photographs were received in evidence showing this lettering. The wording .in large blocks on the back of the car was “ ‘Bill’ Wagner 33-71 Service-Vickers-Liberty Missouri”. The word “Vickers” in the advertising is the name of the gasoline sold at the Wagner station. Plaintiff stated that he owned the car but defendant agreed to furnish “the gas and oil, the oil filters and from time to time a few other things and, of course, the use of the truck”, meaning Bill Wagner’s service truck. Claimant won his first race and was awarded a medal or trophy. Defendant Wagner paid for having the following wording engraved on the trophy: “Bernard Liverman B. Competition E. T.” (elapsed time) “12:59, 5-6-62 K.C.Mo. Sponsor Bill Wagner”.

Plaintiff engaged in races on alternate Sundays thereafter until the accident and on each occasion except the first, used the ■service station truck owned by defendant to “pull it”. Plaintiff testified that he also used the truck “to carry gasoline in cans, and I used the tools in the back of the truck and when we got to the station and unhooked the car from the truck we used it to push the car to start it * * * The truck was also used to push the car through the pit and up onto the drag strip just before the races started. The truck was marked on both sides “Bill Wagner’s 33-71 Service, gas, oil, tires”. Plaintiff won his second competition on May 20, 1962, and again received a trophy which he and defendant caused to be engraved similarly to the first trophy. This procedure was continued with Liverman winning all races but one. In June he decided to enter a race which was to be held at Topeka, Kansas. Liverman testified that Wagner told him to use the truck to transport the racer, but the truck bed was too short so at defendant’s suggestion they lengthened the truck bed by attaching heavy planks to the read end, and in this manner were able to transport the racing car to Topeka, where plaintiff again won first place.

In all of these races plaintiff, as driver, wore his service station uniform with the station lettering on the back. Plaintiff said he did this at defendant’s suggestion. Defendant arranged for plaintiff to be off from work at the station on every other Sunday so he could race. Pictures were taken of the racing car and defendant displayed these pictures on the station bulletin board.

Plaintiff recited a telephone conversation which he said he had with defendant on the morning of the accident as follows:

(Plaintiff) “This is Bernie, Shall I go down and get the engine for the coupe ?
(Defendant) “Yes, you need it, don’t • you?
(Plaintiff) “Yes, I want to try to get it in the car before the race”.

Plaintiff said defendant told him to “have the truck back by afternoon”. It was on the trip to get the engine that the accident occurred and plaintiff was injured. The fact of the accident, plaintiff’s injuries, and the extent thereof are not disputed. Mr. Wagner, the defendant, died after the date of the accident and before the trial. However, his deposition had been taken by the insurer and the Dead Man’s statute was waived. Defendant admitted plaintiff was using the truck at the time of the accident with his express permission.

We quote in part from the final award of the Commission:

“Without belaboring the evidence in finer detail, we think the record fully indicates that the employer not only had the right to control the racing activities but that in numerous details he actually exercised that right. We view the claimant’s racing activities as extension of his original duties as a service station attendant. The right of an employer to increase the scope of the employment can hardly be doubted. See Nichols vs. Davidson Hotel Co., 333 SW 2d 536.
“Further, the advantages flowing to the employer from the racing activities of his employee were very real. Advertising is the life blood of modem trade and commerce. The employer fully capitalized on the publicity boon provided by Liverman’s racing triumphs. Compare the benefits flowing to the employer in Wamhoff vs. Wagner Electric Corp., [354 Mo. 711] 190 SW 2d 915.
“We accordingly find that the employee sustained an accident on July 28, 1962, arising out of and in the course of his employment with William B. Wagner, d/b/a Bill Wagner’s 33-71 By-Pass Service Station, and that as a result of said accident he ♦ * *»

The injury was sustained while plaintiff was doing something incidental to his employment. Advertising is a part of the operation of any business, including the operation of a service station. Defendant sponsored, for advertising purposes, plaintiff’s competition in these drag races. He paid part of the costs, furnished some of the equipment used, placed advertising on the racing car itself and had his name and business engraved on the trophies, and displayed pictures of the racing car at his place of business. He consented to the use of his truck to push, pull, tow and haul the racing car and transported tools and parts in the truck. He arranged for plaintiff to be off work on racing days. He actively participated as sponsor and partner. There is surely a causal connection between this incidental part of the employment and the injury incurred on a trip to “pick up the engine” for installation in the racing car, which was being raced partly, at least, as an advertising promotion for the Wagner Service Station. It is not unusual for automobile, gasoline, tire and automotive parts companies and their retail outlets to sponsor and advertise their products in this manner. Rather such is a common practice which may be observed at the Indianapolis Speedway or at any small town half-mile track. In LeBar v. Ewald Bros. Dairy, 217 Minn. 16, 13 N.W.2d 729, the employee was injured in a baseball game sponsored by the employer. The court held the injury arose out of his employment. The decision in LeBar and in Fishman v. Lafayette Radio Corp., 275 App.Div. 876, 89 N.Y.S.2d 563, were both based primarily upon the value of the advertising to the employer.

In 99 C.J.S. Workmen’s Compensation § 221, page 730, this general statement appears: “An injury suffered by an employee while performing an act for the mutual benefit of the employee and the employer is usually compensable”. Although plaintiff was not paid a salary or any wages by defendant for these racing activities, nevertheless defendant did contribute a part of the cost and benefitted by the advertising of his business products.

We believe the injuries sustained by plaintiff were suffered while performing an act for the mutual benefit of himself and his employer and in furtherance of defendant’s planned campaign of advertising.

We have examined the cases cited by defendant. Some have to do with farm labor and some involve injuries sustained when the employee was engaged in some activity solely his own and unconnected in any way with the employer’s business.

In our opinion the conclusion of the Commission is supported by substantial and competent evidence. We find no reversible error. Therefore the judgment of the circuit court affirming the final award by the Commission is by us affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


author: STONE, Judge.

text:
    Margaret LISTERMAN and John W. Listerman, Plaintiffs-Respondents, v. DAY AND NIGHT PLUMBING AND HEATING SERVICE, INC., Defendant and Third-Party Plaintiff-Respondent, and EMPIRE SHEET METAL COMPANY, a corporation, Third-Party Defendant-Appellant.
    No. 8314.
    Springfield Court of Appeals. Missouri.
    Nov. 13, 1964.

      White, Dickey & Skelton, Springfield, for third-party defendant — appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for defendant and third-party plaintiff — respondent.
    William A. Wear, Springfield, for plaintiffs — respondents.
   STONE, Judge.

Plaintiffs, John W. Listerman and Margaret Listerman, husband and wife, sued Day and Night Plumbing and Heating Service, Inc. (hereinafter called Day and Night), for damage to plaintiffs’ I1/2-story frame dwelling house at 1925 West Lee Street, Springfield, Missouri, by reason of a fire on October 20, 1962, alleged to have resulted from negligence in the installation of a “free-standing fireplace heater.” By leave of court, Day and Night, as third-party plaintiff, filed its third-party petition against Empire Sheet Metal Company, a corporation (hereinafter called Empire), as third-party defendant, predicated on Empire’s alleged obligation to indemnify Day and Night for whatever sum the latter might be required to pay plaintiffs and for attorneys’ fees in defending against plaintiffs’ claim. In due time, the case was tried by the court sitting as a jury, with plaintiffs proceeding on their original petition against Day and Night, as sole defendant, and with Day and Night at the same time proceeding on its 'third-party petition against' Empire, 'as third-party defendant. The court’s judgment (1) found the issues for plaintiffs on their petition, assessed their damages at $1,250, and adjudged recovery thereof from Day and Night, (2) found the issues for Day and Night on its third-party petition, assessed its damages at $1,250 and the additional sum of $250 as attorneys’ fees, and adjudged recovery thereof by Day and Night from Empire, and (3) taxed all costs against Empire. Its timely motion for new trial having been overruled, Empire has perfected this appeal “from the judgment entered in this action.” Neither plaintiffs nor Day and Night filed a motion for new trial or notice of appeal; and counsel here agree that Day and Night has satisfied the judgment obtained by plaintiffs on their petition.

Plaintiff Margaret purchased the “freestanding fireplace heater” from Sears Roebuck and Company in April 1962 and shortly thereafter the heater, knocked down and packaged, was delivered to the Listerman home. Sears furnished a 12-page booklet (hereinafter referred to as Sears’ instruction booklet), containing precise and detailed instructions for installation of the heater; and, at the same time, Sears recommended Day and Night as an independent installer. Pursuant to that recommendation, plaintiff contacted James A. Raney of Day and Night; and, after discussion of the proposed installation, Raney stated (so plaintiff testified) that “he would contract the job” and she said that she “would trust him to put it in for [her] — he would know what to do” and delivered Sears’ instruction booklet to him.

The eight-inch insulated flue pipe from the heater was not to be vented into a chimney but was to run vertically through the first-floor ceiling, through an attic space, and out through the roof; and, knowing that “it would take a sheet metal man to do that. work,” Raney “engaged Empire to do the work for us.” In paragraph 2 of its third-party petition, Day and Night alleged that it “employed the third-party defendant [Empire] as an independent subcontractor for the purpose of making said installation”; and, in its answer to the third-party petition, Empire admitted the quoted allegation. (All emphasis herein is ours.) The undisputed evidence was that Empire’s employees installed the heater, the insulated flue pipe, and the rectangular metal casing around the flue pipe between the fireplace unit and the first-floor ceiling where the pipe otherwise would have been open to view and also above the roof where the pipe otherwise would have been subject to the elements, and that no employee of Day and Night participated in, or was present during, the installation by Empire. In short, both the pleadings and the evidence established that Empire’s legal status with respect to the installation was that of an independent subcontractor within the contemplation and meaning of the widely-accepted definition that “[a]n independent contractor [or subcontractor] is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.”

The flue pipe supplied with the heater was 24-gauge galvanized pipe completely insulated with fiberglass, one inch in thickness, held in place around the pipe by “a chicken-wire mesh.” But the pipe furnished with the heater only reached about twelve to eighteen inches above the first-floor ceiling, so Empire prepared and set additional 4-foot sections of pipe which extended upward through the attic space and roof and to the top of the upright metal casing, about 5[4 feet above the level at which the casing was attached to the roof. However, the top of the metal casing still did not extend above the ridgepole, because the pitch of the roof was “very steep.”

Installation of the heater and flue pipe was completed by Empire in August 1962, after some unavoidable delay incident to preparation of the fire brick base by a firm not identified in the transcript. Before using the heater, plaintiff called Raney of Day and Night and “asked him for an inspection”; and, after he had "looked it over real good,” Raney told plaintiff that “the job looked all right to me.” On October 20, 1962, plaintiff burned some paper and empty milk cartons in the heater, that being (so she said) the first fire in it. Soon after that fire was started, a neighbor notified plaintiff that the “roof was smoking.” The fire department responded to plaintiff’s call; but, before the fire was extinguished, a hole some “six feet square or bigger” (hereinafter referred to simply as the hole) had been burned through the roof, the firemen had chopped another opening in the roof and had pulled down a ceiling in an upstairs bedroom (adjacent to the attic space through which the flue pipe ran) to reach the fire, and the rafters had been charred deeply over a considerable area. No complaint is made here concerning the amount of damages assessed.

The basic factual issues upon trial of plaintiffs’ claim of negligent installation were (1) as to whether the flue pipe had been left bare and uninsulated for a space of four to five inches at or just below the roof and (2) as to whether heat from the flue pipe had started the fire. On the first issue, the direct evidence was in irreconcilable conflict. Plaintiff Margaret testified that, both before and after the fire, she had seen the uninsulated flue pipe,, bare for a vertical distance of four or five inches just below the roof, “enough-times that I was worried” — “I would say about ten times”; and that, in fact, her observation of this insulation gap before the fire “was the reason I was calling [upon Raney] for an inspection.” However, she did not mention the insulation-gap in her telephone conversations with Raney, and she did not point out the gap-to him personally because she worked outside the home “from seven till five” and was not at home when Raney made his-prefire inspection.

On the other hand, Raney of Day and Night stated that there was no insulation gap and no exposed section of the flue pipe when he inspected the installation-before the fire; and both Harold Dooley of Empire, who “built” the additional sections of flue pipe and installed them, and Ralph Cline of Empire, who assisted in installation, insisted that, when they completed and left the job, there was no insulation gap and no portion of the flue pipe was bare.

As Empire states in its brief, “everyone admits” that there was a gap in the insulation and chicken-wire mesh after the fire; and Empire poses the query, “is it not probable that a fireman working on the roof cut open the wire and insulation for purposes of inspection to make sure that all possible sources of burning had been-extinguished ?” But there was no evidence to that effect, and any such finding would rest on nothing more than sheer speculation and unbridled surmise.

When Raney of Day and Night inspected the flue pipe in the attic area of the Lister-man home about 11 A. M. on Monday, October 22, 1962, in response to plaintiff Margaret’s postfire telephonic request on-Saturday, October- 20, he found (so he testified] no insulation gap — “it looked like it did when I first saw it” before the fire. No representative of Empire made a post-fire inspection of the Listerman home until Clarence Dooley, Empire’s president-treasurer, went there some three or four weeks after the fire. Dooley then found (so he stated upon trial) that the chicken-wire mesh “had been cut right straight around. It was a new cut. * * * The wire was cut across the mesh; the insulation had been removed for a space of some two or three inches * * * right at the roof level. That’s when I decided that the fire inspector should be brought out.” Shortly thereafter Dooley, accompanied by Raney and Green of Day and Night and by Willard Sharp, fire warden of the Springfield Fire Department, returned to the Listerman home and Dooley took Sharp “personally inside at that time and showed him where the wire had been cut and the insulation removed.” According to Dooley, Sharp “told me that he hadn’t noticed it before.”

The testimony of fire warden Sharp, a witness for plaintiffs, did not run in the same channel as that of Raney and Dooley. Sharp made three postfire trips to the Listerman home, the first of which was about 9 AM. on Monday, October 22, some two hours before the first postfire inspection by Raney of Day and Night, to which we have referred in the last preceding paragraph. Upon examination by the court, Sharp stated that the flue pipe “was completely bare — there was no covering on it at all — no insulation over it” for a space of about four inches “just below the roof, the shingles of the roof.” And, in response to the inquiry whether there was “any evidence of that wire [chicken-wire mesh] having been cut,” Sharp responded, “Oh, I could see no indication that it had been cut. I don’t know how it was put on there to begin with * * * so I would hesitate to say it was cut.”

Plaintiffs’ witness Williams, a carpenter-contractor who inspected the Listerman home in November 1962 and repaired the damage to the roof, observed the insulation gap at the roof for a vertical distance of'“approximately four to six inches”; and, ' more importantly here, ' when asked' “whether the chicken wire had been cut at that point,” Williams replied, “it did not look like it had to me, sir.”

On the second issue, i. e., as to whether heat from the flue pipe had started the fire, plaintiffs relied upon circumstantial evidence and the opinion evidence of fire warden Sharp, for thirteen years a member of the Springfield Fire Department and for four years a fire warden engaged in “inspection, fire prevention, investigations.” From the plaintiffs’ standpoint, the gist of Sharp’s testimony was his opinion that heat from the flue pipe at the roof line was the “probable cause of the fire.” Although conceding on cross-examination that “other things may or may not have contributed to this” fire, Sharp also said that he had found no evidence of any other cause and again that “I can think of only one cause.”

As Empire’s counsel emphasize, the roof was not burned through at the flue pipe but the edge of the hole in the roof was “one foot or two foot” (so plaintiff Margaret said) or “two or three feet” (so carpenter-contractor Williams and warden Sharp estimated) or “possibly three feet” (so district fire chief Charles Hicks thought) from the flue pipe, and the hole was above a second-floor bedroom adjacent to and just north of the attic area through which the vertical flue pipe ran. But the location of the hole must be considered in connection with other record facts. The flue pipe passed through the roof at a point south of the ridgepole which ran east and west; and, since (as"we have noted) the pitch of the roof was “very steep,” the roof from the flue pipe to the north (and thus toward the hole) sloped sharply upward. The roof itself consisted of an underlying old wooden shingle roof laid in 1947 covered by a composition (“asbestos” so plaintiff Margaret thought, but “asphalt” so warden Sharp stated positively) shingle roof laid over the wooden, shingle roof in 1954. Sharp testified that the underlying wooden shingles, fifteen years old and quite dry, were in a "pyrophoric condition” and “broken down to where the fibers were easily ignited” at a temperature of “around 300 degrees,” much lower than the temperature of 500 to 600 degrees ordinarily required to ignite wood; that burning paper produces a temperature of 1250 to 1800 degrees, with the heat increasing as the paper is consumed; and that the temperature of the gas formed by the fire rises as it “goes up through the flue.” Elaborating upon his opinion as to the cause of the fire, Sharp stated his belief that heat from the flue pipe radiated to the nearby wooden shingles which became ignited, and that, since “fire travels upward” and the roof sloped sharply upward from the flue pipe to the north, the fire broke through the roof above and north of the flue pipe. It also was pointed out in the record that there was a metal flange or flashing on the roof around the flue pipe which would have inhibited the fire from breaking through next to the pipe, and that “the whole roof underneath was charred” — “the underside was charred, but not any * * * to speak of on top; it was all underneath.”

Neither Day and Night nor Empire offered any opinion evidence; but, upon cross-examination of warden Sharp and district fire chief Hicks, who supervised the firemen in extinguishing the blaze, counsel developed several details here emphasized in argument. For example, warden Sharp conceded that, in his written report concerning this fire, he had not mentioned the insulation gap at the roof level, and he quickly acknowledged that he would have needed precise information as to various factors (such as “how much paper was involved and how long it burned” in the heater, the exact distance from the heater to the roof line, and the temperature in the attic when the fire was started in the heater) “to determine the exact temperature of any portion of that flue.” Counsel further obtained Sharp’s ready agreement that, if Raney of Day and Night had, prior to the fire, applied “tar” to seal the flashing on the roof around the flue pipe and if that “tar” had not melted or run as a result of the fire, it would have been “indicative * * * that there was not very much heat immediately below that area”; but the stated assumptions rested solely on Raney’s testimony and credibility, since no other witness testified to the same effect and Sharp was not on the roof either before or after the fire. This already tedious factual review need not be extended further by the recitation of additional details, which simply would bear upon the credibility of witnesses and the weight and value to be accorded to their testimony.

Empire’s initial contention is that the trial court erred in requiring Empire to indemnify Day and Night, “because if there was negligence, the parties were in pari delicto.” It is true that, as Empire reminds us, where joint tort-feasors are in pari delicto neither is entitled to indemnity from the other. Union Electric Co. v. Magary, Mo., 373 S.W.2d 16, 22 (3); Johnson v. California Spray-Chemical Co., Mo., 362 S.W.2d 630, 633(2); Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576, 588. But the statement of the principle itself suggests, and the cases demonstrate, that “in many situations, joint tort-feasors are held not to be in pari delicto.” Johnson, supra, 362 S.W.2d at 633. See McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 793; Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 437-440, 276 S.W. 614, 619-620(8, 9). Thus, “where one party creates the condition which causes injury and the other does not join therein but is exposed to liability on account of it, the rule that one of two joint tort-feasors cannot maintain an action against the other for indemnity does not apply.” Otherwise stated, one held liable for negligence may secure indemnity from another “ 'where it [seems] reasonable and desirable to impose the ultimate responsibility on the person found to have played the active or primary role in the negligent situation in favor of one also held liable, hut whose part in the event is passive or secondary. In such situations the parties are said not to be in pari delicto.’ ” Johnson, supra, 362 S.W.2d at 633; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 502. Again, it is said that “the negligence of the party responsible for the dangerous condition is active and primary while the negligence of the other is passive and secondary” [Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1, 5] and that “[p]assive negligence will not bar recovery of indemnity from a joint tort-feasor whose active negligence created the dangerous condition.” [338 S.W.2d at 7 (4)]

In the instant case, Empire’s status with respect to the installation in question was that of an independent subcontractor. Its employees installed the fireplace unit, the insulated flue pipe, and the rectangular metal casings around the flue pipe, and no’ employee of Day and Night participated in, or was present during, that installation. So, it is plain that Empire created the condition which exposed Day and Night to liability and upon which plaintiffs predicated their pleaded charge of negligence against Day and Night, i. e., “that the sheet metal work in the flue was inadequately insulated against the wood rafters, roof and other wood objects through which the flue was installed,” and that plaintiffs sought to recover, and did recover, upon negligence imputed to Day and Night by reason of its legal relation with Empire. If Day and Night was negligent, it was in failing to discover and correct the condition caused solely by Empire. But no such negligence was charged; and, even if it had been, recovery of indemnity by Day and Night would not have been precluded thereby, for “[o]ur courts have, in a long line of cases, permitted the recovery of indemnity by those to whom negligence is imputed as a purely secondary liability, or where the legal negligence of the indemnitee rests solely in his failure to discover and correct a dangerous condition caused solely by the one sought to be charged.” Crouch v. Tourtelot, Mo. (banc), 350 S.W.2d 799, 805(10), and cases there cited. See Busch & Latta Paint Co., supra, 310 Mo. at 437-439, 276 S.W. at 619; Pierce v. Ozark Border Electric Coop., Mo., 378 S.W.2d 504, 507; State ex rel. Siegel, supra, 315 S.W.2d at 507(5). Empire’s initial contention must be re-j ected.

Empire’s other points go to the merits of plaintiffs’ claim and challenge the sufficiency of the evidence to have permitted the judgment obtained by plaintiffs against Day and Night. But Day and Night insists that we properly may not consider those points, because (so its counsel assert) the judgment on plaintiffs’ petition, from which Day and Night did not appeal, “is not binding on [Empire] with respect to all issues therein determined and, therefore, the trial court’s findings of negligence cannot now be questioned.” Declaring that “third-party practice is merely procedural” and that the same rule should be applicable here as in a separate suit for indemnity, Day and Night’s counsel rely upon the statement of principle in 42 C.J.S. Indemnity § 32a, p. 613, that “[w]here an indemnitor has notice of a suit against his indemnitee and has been afforded an opportunity to appear and defend, a judgment therein rendered against the indemnitee, if without fraud or collusion, is conclusive against the indemnitor in respect of all questions therein determined * * Our Missouri cases refine and enunciate this general principle in somewhat more restrictive and demanding terms: “Where one is bound to protect another from a liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation, and opportunity to control and manage it." It is true, as Day and Night’s counsel state, that Empire had notice of plaintiffs’ suit and "an opportunity to participate in the defense"; that “Day and Night made a genuine and good faith defense of plaintiffs’ claim”; and that there is no showing that Empire requested Day and Night to appeal from the judgment nisi or ■offered to prosecute such appeal on behalf ■of Day and Night at Empire’s expense. But, on the other hand, it is not shown that Empire was accorded the “opportunity to ■control and manage" the litigation — an opportunity which certainly would have en•compassed that of obtaining appellate review of the judgment for plaintiffs on their petition. See Restatement, Judgments, § 107, comment e at 516.

However, there are other and more •compelling reasons which persuade us that .appellate consideration of Empire’s points .attacking the judgment for plaintiffs is mot precluded. The issues joined upon plaintiffs’ petition and those joined upon Day and Night’s third-party petition were ■.tried at the same time and upon the same •evidence; all of those issues were adjudicated at the same time and in the same judgment; Empire’s timely motion for new trial presented, inter alia, the same assignments of error directed to the judgment for plaintiffs as are presented in the “points, relied on” in Empire’s appellate brief; Empire gave notice of appeal, and in good faith sought to appeal, from “the judgment entered in this action on the 10th day of September, 1963,” which, as we have said, adjudicated the issues upon plaintiffs’ petition as well as those upon Day and Night’s third-party petition; and, on the instant record, Empire’s liability vel non to Day and Night not only depended upon, but also followed as a shadow follows the object casting it, the liability vel non of Day and Night to plaintiffs.

V.A.M.S. § 512.020 grants the right of appeal to “[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause * * Since Empire was a party to this suit, whether or not its notice of appeal was adequate and effective to permit appellate review of that portion of the judgment adjudicating the issues upon plaintiffs’ petition turned upon whether or not Empire was “aggrieved” thereby, within the contemplation and meaning of the cited statute. Counsel have cited, and we have found, no reported situation involving a third-party defendant in which the precise question under consideration has been discussed. And, although we have examined various broad definitive statements as to when a person or party is “aggrieved,” our review of numerous cases impels the conclusion that whether or not a given appellant is “aggrieved” may not be determined by application of any definition or formula but depends upon the circumstances of the particular situation at hand. See the discussion in Dubinsky Brothers, Inc. v. Industrial Com’n. of Missouri, Mo. (banc), 373 S.W.2d 9, 12-14.

More than seventy years ago, our Supreme Court held in Nolan v. Jones, 108 Mo. 431, 435-437, 18 S.W. 1107, 1108(3), that under the then governing statute [RSMo 1879, § 3710] which gave the right of appeal to “every person aggrieved” by a final judgment, sureties were “aggrieved” persons who might appeal from a judgment against their principal alone. See In re Switzer, 201 Mo. 66, 83-86, 98 S.W. 461, 463; Calhoun v. Gray, 150 Mo.App. 591, 601, 131 S.W. 478, 481(10). On the record before us, adjudication of the issues upon plaintiffs’ petition no less “injuriously affected and concluded” Empire’s “rights” and “interests” under the third-party petition. Cf. Nolan, supra, 108 Mo. at 436, 18 S.W. at 1108.

Although the right of appeal is purely statutory and, where not given by statute, no such right exists, statutes authorizing appeals should be construed liberally for appeals are favored in the law; and, where doubt exists as to the right of appeal, it should be resolved in favor of that right. In re Dugan’s Estate, Mo.App., 309 S.W.2d 137, 143(14); Mullin v. Trolinger, 237 Mo.App. 939, 179 S.W.2d 484, 487(3). Expressly limiting the scope and effect of our holding to the specific, situation before us, we are of the opinion, that Empire was “aggrieved” by, and that its notice of appeal was adequate and effective to permit appellate review of, that portion of the judgment which adjudicated' the issues upon plaintiffs’ petition.

One of Empire’s points is that “the court erred in finding defendant, Day and Night, negligent in the erection of the fireplace because defendant followed plans furnished by plaintiffs.” The “plans,” to which counsel refer, are those contained in Sears’ instruction booklet delivered by plaintiff Margaret to Raney of Day and Night and thereafter by Raney to Dooley of Empire. Of course, nothing in the Sears’ instruction booklet suggested or sanctioned installation of the flue pipe with a gap in the insulation; and, in the argument section of Empire’s brief, we find that the above-quoted point is predicated on counsel’s assumption “that at the time of the installation there was no gap in the insulation.” However, this assumption is-unwarranted because, as we have noted,, plaintiff Margaret testified positively that, prior to the fire, the flue pipe was bare and uninsulated for a vertical distance of four or five inches just below the roof. True, Day and Night’s and Empire’s evidence was to the contrary. But, with no specific findings of fact requested or made, this and all other issues of fact were ruled in favor of plaintiffs by the general finding and judgment for them. And, even though we independently consider the evidence -and reach our own conclusions, we usually defer to the finding of the trial court upon salient factual issues where, as here, the ■evidence thereon is in irreconcilable conflict and the determination thereof necessarily must rest upon the credibility of the witnesses and the weight to be accorded to their testimony. As many writers have commented, such deference is fitting and proper in view of the superior ■opportunity of the trial court to judge of “the credibility and characteristics of the witnesses who testified before him.” Following the finding of the trial court rather than the assumption of Empire’s ■counsel upon the disputed factual issue as to whether there was a gap in the insulation just below the roof, the point under discussion must be disallowed.

In another point, Empire contends that “the evidence was insufficient to permit the court to find that the fire was caused by inadequate insulation around the flue pipe of the fireplace unit.” This point is presented with an earnest factual argument but without citation of authority. The evidence has been hereinbefore reviewed in considerable detail and need not be restated, rehashed or resifted. We recognize that there were conflicts and inconsistencies in the evidence, that it was not satisfying in all particulars, and that it by no means compelled a finding and judgment for plaintiffs. However, the only opinion evidence as to the cause of the fire was that of warden Sharp who, immediately after affirming his observation of the insulation gap, stated his opinion that heat from the flue pipe at the roof level was the “probable cause of the fire.” There is no contention by Empire that opinion evidence as to the cause of the fire under consideration should not have been received [see State v. Paglino, Mo., 319 S.W.2d 613, 622-623(8)], and there is no “point relied on” in Empire’s brief which assigns error in the admission of Sharp’s opinion. ‘An expert opinion expressed by one properly qualified and based upon sufficient means of knowledge is evidence.’ ” As Empire’s counsel stress, Sharp’s opinion was one of probability, not of certainty, but “ ‘[a]n expert’s view of possibility or probability is often helpful and proper.’” “[T]he testimony of experts is to be considered like any other testimony, is to be tried by the same tests, and receive just so much weight and credit as the [trier of the facts] may deem it entitled to when viewed in connection with all the circumstances * * The credibility of warden Sharp and the weight and value to be accorded to his expert opinion, which we regard as having been based on substantive evidence, were for the trier of the facts. Capra v. Phillips Investment Co., Mo. (banc), 302 S.W.2d 924, 931(8).

Taking the evidence in its totality, we have no doubt but that plaintiffs made a submissible case on alleged negligence in inadequate insulation of the flue pipe. And remaining mindful of the plain admonition that “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses” and being unable to say, after painstaking examination of the record, that the judgment was “clearly erroneous,” it becomes our plain duty to affirm it. V.A.M.R. Rule 73.01(d); V.A.M.S. § 510.310(4).

In so concluding, we have not overlooked Empire’s further point that “the court erred in finding Empire liable in indemnity to Day and Night for installing the fireplace in violation of the building code of the City of Springfield, for want of proximate cause.” But we need not probe the legal effect of failure to obtain a building permit from the City of Springfield for installation of plaintiffs’ fireplace heater. For there is no record indication! that the judgment under review was predicated upon violation of the building code by Day and Night or Empire; and, since there was no request for a finding of facts- and only general findings for plaintiffs on. their petition and for Day and Night on its third-party petition, we should sustain; the judgment if the evidence supports it upon any legal theory permitted by the-pleadings.

Believing, as we have stated, that the-judgment was permissible and proper on> the pleaded theory of alleged negligence in inadequate insulation of the flue pipe, for which Empire, as the sole creator of the condition causing injury, was liable over to Day and Night, the judgment should be- and is in all respects affirmed.

RUARK, P. J., and HOGAN, J., concur..

      . All references to plaintiff in the singular are to plaintiff Margaret Listerman. For reasons disclosed in the record but here immaterial, her husband, John W. Lister-man, did not appear at the trial.

      . Restatement, Second, Agency § 2(3); Madsen v. Lawrence, Mo., 366 S.W.2d 413, 415(3); Talley v. Bowen Const. Co., Mo., 340 S.W.2d 701, 704(2); Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 720, 729(5); Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58, 01.

      . Barb v. Farmers Insurance Exchange, Mo., 281 S.W.2d 207, 304(11); Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1, 5(2). See Woods v. Juvenile Shoe Corp. of America, Mo., 861 S.W.2d 694, 697(5); Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 437, 276 S.W. 614, 619(8).

      . Tlie only case cited by counsel under this point is B. Roth Tool Co. v. New Amsterdam Cas. Co., 8 Cir., 161 F. 709, 711.

      . Missouri Dist. Tel. Co. v. Southwestern Bell Tel. Co., 336 Mo. 453, 462, 79 S.W.2d 257, 260 (7); Kansas City, M. & B. R. Co. v. Southern Railway News Co., 151 Mo. 373, 390, 52 S.W. 205, 209(4), 45 L.R.A. 380; Garrison v. Babbage Transp. Co., 94 Mo. 130, 137, 6 S.W. 701, 703; Strong v. Phoenix Ins. Co., 62 Mo. 289, 295; Murch Bros. Const. Co. v. Fidelity & Casualty Co. of New York, 190 Mo.App. 490, 516, 176 S.W. 399, 406; Whitaker v. McCormick, 6 Mo.App. 114, 116-117(2). See also City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 643, 22 S.W. 794, 795; Brinkman v. Western Automobile Indemnity Ass’n., 205 Mo.App. 71, 78, 218 S.W. 944, 945; City of Columbia v. Malo, Mo.App., 217 S.W. 625, 628(3); annotation 73 A.L.R.2d 504, 524-526.

      . “Generally speaking, a party or person is aggrieved by a judgment * * * whenever it operates prejudicially and directly upon his property, pecuniary, or personal rights.” Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 845 (12). “It may be said that an aggrieved party, within the meaning of the rule governing appeals, is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment, or one whose property rights or personal interests are directly affected by the operation of the judgment or decree.” 4 Am.Jur.2d, Appeal and Error, § 183, p. 692. See also 4 C.J.S. Appeal and Error § 183b (1), p. 559.

      . Walker v. Thompson, Mo., 338 S.W.2d 114, 116(3); Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 242 S.W.2d 566, 571(8); State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324, 330; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, 469(1).

      . Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456, 459(5); Robertson v. Manufacturing Lumbermen’s Underwriters, 346 Mo. 1103, 1109, 145 S.W.2d 134, 136; Tooker v. Missouri Power & Light Co., 336 Mo. 592, 595, 80 S.W.2d 691, 692, 101 A.L.R. 365; O’Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837, 839(2); In re Dugan’s Estate, Mo.App., 309 S.W.2d 137, 143(13).

      . V.A.M.R. Rule 73.01(b); V.A.M.S. § 510.310(2); McCullough v. Newton, Mo., 348 S.W.2d 138, 142(2); Sando v. Phillips, Mo., 319 S.W.2d 648, 652(9); Lange v. Baker, Mo.App., 377 S.W.2d 5, 6(1); Davis v. Broughton, Mo.App., 369 S.W.2d 857, 862(4).

      . Leggett v. Missouri State Life Ins. Co., Mo. (banc), 342 S.W.2d 833, 850 (2); Day v. Blackbird, Mo., 331 S.W.2d 658, 660(2); In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148(3); Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 182(7); Rector v. Tobin Const. Co., Mo.App., 351 S.W.2d 816, 820(1).

      . Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771(3); Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428(5); Peine v. Sater, Mo., 289 S.W.2d 101, 102(1); Allen v. Smith, Mo.App., 375 S.W.2d 874, 880(8). See Hampton v. Niehaus, Mo., 329 S.W.2d 794, 800(6), 801-802(9, 10).

      . State v. Paglino, Mo., 319 S.W.2d 613, 623(9); State v. Menard, Mo., 331 S.W. 2d 521, 524(2); Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 663, 253 S.W.d 122, 129(7).

      . Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 715, 72 A.L.R.2d 855, Kimmie v. Terminal R.R., Ass’n. of St. Louis, 334 Mo. 596, 605, 66 S.W.2d 561, 565(9); York v. Daniels, 241 Mo.App. 809, 833, 259 S.W.2d 109, 122(6).

      . Scanlon v. Kansas City, 325 Mo. 125, 150, 28 S.W.2d 84, 95(15); State v. Quilling, 363 Mo. 1016, 1021, 256 S.W.2d 751, 752(2); State v. Bannister, Mo., 339 S.W.2d 281, 282. See Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319, 328(11).

      . Capra v. Phillips Investment Co., Mo. (banc), 302 S.W.2d 924, 930-931; State v. Paglino, supra, 319 S.W.2d at 621-625; Fair Mercantile Co. v. St. Paul Pire & Marine Ins. Co., 237 Mo.App. 511, 175 S.W.2d 930. See Moyers v. Sears-Roebuck & Co., 242 Iowa 1038, 48 N.W.2d 881; Korsckot v. Leevy, Ind. App., 178 N.E.2d 750; Manney v. Housing Authority of City of Richmond, 79 Cal.App.2d 453, 180 P.2d 69.

      . Glenn v. Offutt, Mo.App., 309 S.W.2d 366, 368(3); Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 621, 624(29); Hess v. Hessel, Mo.App., 102 S.W.2d 729, 730(2); State ex rel. and to Use of Tate v. Baird, Mo.App., 186 S.W. 587, 588(2). See McCrory v. Monroe, Mo.App., 336 S.W.2d 118, 121(1) ; Tillery v. Crook, Mo.App., 297 S.W.2d 9, 12; Powell v. Schultz, Mo.App., 118 S.W.2d 25, 30-31.


author: PER CURIAM.

text:
    Joe Frank MARTIN, Petitioner, v. Teddy JENKINS, Respondent.

      No. 10381.
    Supreme Court of Texas
    Nov. 18, 1964.
    Huff & Bowers and Robert W. Gauss, Lubbock, for petitioner.
    Crenshaw, Dupree & Milam, Tom S. Mil-am, Lubbock, for respondent.
   PER CURIAM.

This is a personal injury case. The trial •court rendered judgment for defendant, and the Court of Civil Appeals affirmed such judgment. 381 S.W.2d 115.

Our refusal to grant this application for writ of error is not to be taken as approving the construction given by the Court of Civil Appeals to Section 47 of Article 6701d, Vernon’s Ann.Tex.Civ.St. Hence, the application for writ of error is Refused, No Reversible Error. Texas Rules of Civil Procedure, Rule 483; see: Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339.


text:
    George LUND, Petitioner, v. Avero Alanis ALANIS et al., Respondents.
    No. A—10411.
    Supreme Court of Texas.
    Nov. 11, 1964.
    Barnes & Elick, McAllen', for petitioner.
    Luther E. Jones, Jr., Corpus Christi, Frank R. Nye, Jr., County Atty., Rio Grande City, Emilio F. Gutierrez, Rio Grande City, for respondents.
   PER CURIAM.

The trial court dismissed this cause, and its action was affirmed by the Court of Civil Appeals. 381 S.W.2d 955. The cause is now moot and hence the order of dismissal should stand. We dismiss the application for writ of error without reference to the merits. Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725.


author: WALKER, Justice.

text:
    T. B. BURROW et al., Petitioners, v. James W. McMAHAN et al., Respondents.
    No. A-10128.
    Supreme Court of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 16, 1964.

      Crenshaw, Dupree & Milam and R. K. Harty, Lubbock, for petitioners Burrow & Cotner.
    J. G. Souris, Vernon, for petitioners Daisy Mae Thompson et al.
    Cannon B. McMahan, Oklahoma City, Okl., Jenkens, Anson & Spradley, Dallas, Morriss, Morriss, Boatwright & Lewis, San Antonio, for respondents McMahan et al.
    William P. Gibson, Dallas, Tex., for respondent Texaco Seaboard, Inc.
    Tom R. Gordon, Abilene, for respondent J. D. Thompkins.
   WALKER, Justice.

This action in trespass to try title was instituted by James W. McMahan et al., respondents, to recover certain severed mineral interests in Foard County. Judgment was rendered in favor of respondents after a trial to the court on an agreed statement of facts, and the Court of Civil Appeals affirmed. 376 S.W.2d 850. As the case reaches this Court, the rights of the parties turn upon whether the attack made by respondents on a substitute trustee’s deed executed in 1937 is barred by Article 5523a, Vernon’s Ann.Tex.Civ.Stat. We hold that the statute does not apply where, as here, the evidence shows affirmatively that the purported substitute trustee had no authority to sell the premises under the deed of trust.

On July 22, 1922, Ed Andress and wife, Josie Andress, who are the agreed common source of title, executed and delivered a deed of trust to M. H. Gossett, trustee, to secure the payment of a note for $2,000.00 to The Federal Land Bank of Houston. The note was payable in semi-annual installments, and the deed of trust provided for foreclosure in satisfaction of a defaulted installment without declaring the entire debt due. After the execution of the deed of trust but prior to the purported foreclosure discussed below, Ed Andress and Josie Andress and their successors in title conveyed the mineral interests in controversy to T. V. McMahan and W. L. Graham. The title thus acquired by T. V. McMahan and W. L. Graham is now held by respondents unless the same has been divested by the foreclosure sale.

Default was made in the payment of the installment due September 1, 1937, on the note to The Federal Land Bank of Houston. By instrument dated September 4, 1937, and reciting that M. H. Gossett, trustee, had died, the Bank appointed A. C. Williams substitute trustee and transferred the delinquent installment to Mrs. Dorothy Hofues. When requested by Mrs. Hofues to sell the land in satisfaction of the installment, A. C. Williams refused to make the sale. On October 6, 1937, Mrs. Hofues executed a written instrument appointing T. B. Burrow as substitute trustee in the place of A. C. Williams. This appointment, which was subsequently filed for record in Foard County, recites that A. C. Williams had refused to execute the trust and that Mrs. Hofues was authorized by the deed of trust to appoint a substitute trustee. On December 7, 1937, T. B. Burrow conducted a foreclosure sale and executed a substitute trustee’s deed to H. W. Cotner and wife, Bess Cotner, under whom petitioners claim. This deed was actually recorded in the office of the County Clerk of Foard County on February 8, 1938, and the present suit was instituted about 21 years later.

Deeds of trust containing substantially the same provisions as the instrument executed by Ed Andress and Mrs. Josie An-dress to M. H. Gossett, trustee, have been ■considered by our courts on at least two previous occasions. In Hart v. McClusky, Tex.Civ.App., 118 S.W.2d 1077 (writ ref.), the substitute trustee appointed by the Bank ■designated an attorney in fact, who conducted a foreclosure sale in satisfaction of a defaulted installment. It was contended that the appointment of the substitute trustee was void because not made by the as-signee of the installment, but the court ■concluded that the power to appoint a substitute trustee was vested in and restricted to the Bank or other holder of the principal indebtedness secured by the deed of trust. In Johnson v. Koenig, Tex.Civ.App., 353 S.W.2d 478 (writ ref. n. r. e.), it was held that the deed of trust did not authorize the appointment of a substitute trustee by an •assignee of two defaulted installments. On the authority of these decisions, the Court ■of Civil Appeals held in the present case that Mrs. Hofues had no power to appoint .a substitute trustee under the terms of the deed of trust. Petitioners do not question that conclusion here, and we accordingly accept it as sound for the purpose of this opinion. Their single point of error as-serts that the intermediate court erred in refusing to hold that Article 5523a is a bar to the attack made by respondents on the substitute trustee’s deed.

In so far as it is material here, Article 5523a provides that “[a]ny person who has the right of action for the recovery of land because of any one or more of the following defects in 'any instrument, * * * or where such instrument is executed by a trustee without record of Judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited; * * * shall institute his suit therefor not later than 10 years next after the date when such instrument has been or hereafter may be actually recorded in the office of the County Clerk of the county in which such real estate is situated and not afterwards; * * Petitioners contend that this statute precludes any inquiry into the authority of a purported trustee or into the truth of the recitals in an instrument executed by him after the instrument has been on record for ten years.

In Covington v. Priddy, Tex.Civ.App., 373 S.W.2d 877 (writ ref. n. r. e.), the ap-pellees claimed through a substitute trustee’s deed executed by H. N. McKellar to J. N. Brooker, but there was no evidence that McKellar had or had not been appointed substitute trustee. His deed merely recited that the holder of the indebtedness secured by the deed of trust had requested him “as substitute trustee” to sell the premises. It was held that Article 5523a applied, and that the trial court did not err in admitting the deed in evidence. Petitioners also rely on Dali v. Lindsey, Tex. Civ.App., 237 S.W.2d 1006 (writ ref. n. r. e.), where the deed of trust required that a substitute trustee be appointed in writing. An instrument stating that “Empire Mortgage Company, the legal owner and holder of the indebtedness described in said deed of trust has appointed H. L. Hunter of Wichita County, Texas, as substitute trustee,” was executed by such company. The appellee contended and the trial court concluded that this was merely an ex parte statement about some other document or event. The Court of Civil Appeals held that the instrument constituted an appointment in writing of H. L. Hunter as substitute trustee and that he was not disqualified to act in that capacity under the facts shown. It then went on to say by way of dictum that the appellee was precluded by Article 5523a from questioning the authority of the substitute trustee or the'verity of the facts recited in his deed.

Respondents cite Campsey v. Jack County Oil & Gas Ass’n, Tcx.Civ.App., 328 S.W.2d 912 (writ ref. n. r. e.), which involved a deed executed by S. V. Stark purporting to act as trustee for an unincorporated joint stock company. Suit was brought to cancel the deed, and the plaintiff established by evidence that Stark had no authority to act as trustee. In holding that the action was not barred by Article 5523a, the court said:

“ * * * If the instant suit were based on the ground that the Stark deed was executed without ‘record of Judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited,’ then we would hold that plaintiff’s suit is barred by Art. 5523a.
“Plaintiff’s suit, however, is in part to cancel the Stark deed as void because Stark was not a trustee and had no authority to act as such. It is not a situation where ‘an instrument was executed by a trustee’ but a situation where an instrument was signed by a person who called himself a trustee, but in fact, according to the evidence and the court’s judgment, was not a trustee. The intent of the Legislature in passing Art. 5523a was to quiet titles and uncertainties concerning land titles passing by and through a trustee’s deed. Dali v. Lindsey, Tex.Civ.App., 237 S.W.2d 1006. The article was not meant to apply to titles where one not a trustee, and with no authority whatever, executed a deed calling himself a trustee.
“Article 5523a, as shown by the emergency clause, 41st Leg., Acts 1929, Chap. 181, p. 394, was for the purpose of establishing a period of limitation, in which suits may be brought for the recovery of lands on ‘technical defects’
“Plaintiff alleged and proved that Stark was not a trustee, had no authority from any source to so call himself, and in fact had absolute want of authority to execute the deed. Such is not a ‘technical defect’ as is barred by Art. 5523a.”

These conclusions are clearly sound, and in our opinion control the disposition of the present case. According to the recitals of the deed in question, T. B„ Burrow was appointed substitute trustee “by instrument in writing.” The record contains an instrument in writing executed by Mrs. Hofues about eight weeks before. She there recites the transfer of the delinquent installment to her, states that she was-authorized by the deed of trust to appoint a substitute trustee, and purports to appoint T. B. Burrow as trustee in the place of A. C. Williams. According to the substitute trustee’s deed, the land was sold for the purpose of paying the delinquent installment held by Mrs. Hofues. These circumstances establish, at least prima facie,, that Burrow acted as substitute trustee under and by virtue of the appointment made by Mrs. Hofues. Since there is no evidence suggesting that he was ever appointed by The Federal Land Bank of Houston or other holder of the principal indebtedness secured by the deed of trust, it is our opinion that the record shows affirmatively and conclusively that Burrow was without authority to sell the premises under the terms of the deed of trust. We agree with the Court of Civil Appeals that Article 5523a has no application where the purported trustee’s lack of authority is thus established by the evidence. Its judgment is accordingly affirmed.

GRIFFIN, J., dissenting.