author: GRISSOM, Chief Justice.

text:
    El J. WARE, Appellant, v. Abraham Allen WARE et al., Appellees.
    No. 4035.
    Court of Civil Appeals of Texas. Eastland.
    April 1, 1966.
    Rehearing Denied May 13, 1966.

      J. Carroll McConnell, Dixon, Alley & Petrovich, Travis Alley, Ft. Worth, for appellant.
    John P. Ritchie, Mineral Wells, Charles Shumaker, Weatherford, for appellees.
   GRISSOM, Chief Justice.

On February 4, 1965, the County Court rendered judgment removing El J. Ware as an independent executor of the estate of W. T. Ware. He was not cited but he was present and knew of the judgment when it was rendered. His first action to rid himself of the judgment occurred on the 24th of February, 1965, when he filed a motion to set aside the judgment removing him. Other executors of said estate filed a motion to dismiss El J. Ware’s said motion. They contended that the judgment rendered February 4, 1965, removing El J. Ware as an independent executor of said estate had become final; that notice of appeal therefrom had not been given within ten days after its rendition; that no appeal bond was filed within fifteen days after its rendition and no designation of the contents of a transcript on appeal had been filed; that, since the judgment of removal was rendered under the provisions of the Probate Code and none of the requisite steps for appeal therefrom had been taken, said judgment had become final and the County Court was without jurisdiction to grant El J. Ware’s motion to set it aside. On March 23, 1965, the County Court set aside its order of February 4th removing El J. Ware as an independent executor and overruled the other executors’ motion to dismiss El J. Ware’s said motion. Abraham Allen Ware and another independent executor of said estate appealed. The County Court entered an order permitting said executors to appeal to the District Court without filing an appeal bond. Section 29 of our Probate Code provides that an executor may appeal without bond, unless the appeal concerns him personally. If a fact question was raised as to whether the appeal concerned said appellants personally the County Court determined it in favor of the executors who appealed to the District Court. The District Court held that, since El J. Ware did not file a motion for a new trial within ten days and the order setting aside said judgment of removal was not rendered within thirty days after its rendition, the County Court did not have jurisdiction to set aside the judgment of removal. El J. Ware has appealed from the District Court to this court.

Appellant says the judgment of the District Court should be reversed because (1) the judgment of the County Court removing him was void; (2) the order of the County Court reinstating him was within its power and jurisdiction for the reason that his motion to set aside the judgment removing him was a statutory bill of review within the meaning of Section 31 of the Texas Probate Code; (4) the record shows that the order removing him was void on its face and the order reinstating him was authorized by his statutory bill of review; and because (5) the County Court considered appellant’s motion for reinstatement as a bill of review and (6) the District Court erred in assuming'jurisdiction of the other executors’ appeal because they failed to file an appeal bond. Appellant argues that the order of the County Court removing him is void on its face because the only legal cause for removing an independent executor is failure to give bond after being ordered to do so. The Probate Code provides otherwise. Section 222.

The question decided by the District Court was whether the County Court had jurisdiction on March 23, 1965, to set aside its judgment of February 4, 1965 removing El J. Ware as executor. The controlling question presented here is the same. The judgment removing El J. Ware as executor was rendered February 4, 1965. His motion to reinstate was filed February 24th and the order setting aside the judgment of removal was rendered March 23, 1965, forty-seven days after rendition of the judgment removing him. A motion for a new trial, when required, must be filed within ten days after the judgment complained of is rendered. Tex. Rules of Civil Procedure 329b, subd. 1. To appeal El J. Ware was required to file a bond within fifteen days after rendition of the judgment of removal. RCP, 333. Such an appellant is also required to file a transcript in the District Court within thirty days. RCP, 336. Appellant did none of these things. RCP, 329b, subd. 5 provides that judgments shall become final thirty days after rendition of the judgment and that after expiration of thirty days the judgment cannot be set aside except by bill of review. Subdivision 6(c) of RCP 329b provides that judgments shall become as final after thirty days as if the term of court had expired.

If appellant’s motion to set aside the order removing him as executor was a motion for a new trial it was not filed within time. We cannot concern ourselves with the question of whether the County Court erred in removing appellant as executor. We may determine only whether the order removing him had become final when the County Court so attempted to set it aside. The County Court was without jurisdiction to enter the order reinstating him on March 23, 1965, forty-seven days after the order of removal was rendered. Cash v. Kosberg, Tex.Civ.App., 374 S.W.2d 773; Cargill, Inc. v. Van Deweghe, 384 S.W.2d 216. Unless said proceeding was then a pending case, which it was not, the judgment of removal had become impervious to attack except by a bill of review. Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701, 704. Appellant cites in support of his contention that his said pleading constituted a bill of review. RCP, 71. That rule merely provides that when a party has mistakenly designated a pleading it shall be treated as if it had been properly named.

Was appellant’s motion to set aside the judgment removing him a bill of review?

“In a bill of review proceeding the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit.” McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710.

Appellant’s motion did not contain these essential allegations of a bill of review. The court further said at page 710, that if the defendant learned of the judgment within thirty days after its rendition he could file a motion for a new trial and, if it was overruled, he could obtain relief by appeal and, at page 711,

“Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.”

Appellant knew of the judgment when it was rendered. He did nothing for 47 days. He had time to do so but he did not appeal. Appeal was an adequate legal remedy.

In Moore v. Mathis, Tex.Civ.App., 369 S.W.2d 450, (Ref. N.R.E.), Moore sued Mathis to enjoin enforcement of a default judgment obtained against him by Mathis and for a bill of review. Moore’s bill of review was filed on October 12, 1962. We held that, since appellant had not exhausted his adequate legal remedies, he could not set aside the judgment by a bill of review without alleging and proving fraud, accident or wrongful conduct of the opposing party which prevented him from asserting his defense. We are forced to the conclusion that the record shows that apppellant did not avail himself of adequate available legal remedies and that his pleading was insufficient as a bill of review. Gehrke v. State, Tex.Civ.App., 363 S.W.2d 490, (Writ Ref.); Velasco Drainage District of Brazoria County v. Brock, Tex.Civ.App., 372 S.W.2d 567.

The judgment is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Louise BARNEY, Appellant, v. CREDIT PLAN CORPORATION, Appellee.
    No. 14489.
    Court of Civil Appeals of Texas. San Antonio.
    May 4, 1966.
    Charles S. Johnson, San Antonio, for appellant.
    Dibrell, Gargner, Dotson & Coulter, and Luther Coulter, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellee, Credit Plan Corporation, against Arthur W. Barney and wife, Louise Barney, seeking judgment on a promissory note in the principal sum of $522.00, together with interest at 10%, and an attorney’s fee of 15% on the unpaid balance, and further seeking foreclosure of a chattel mortgage. Arthur W. Barney did not file an answer but wholly made default. Louise Barney filed her answer consisting of a plea of coverture and a general denial. The court overruled her plea of coverture by order of October 28, 1965. Appellee made a motion for a summary judgment, based entirely upon pleadings, which was granted for the full amounts alleged to be due on the note, and for foreclosure of the chattel mortgage. Louise Barney alone has prosecuted this appeal.

Appellant’s point of error is as follows:

“The trial court erred in granting ap-pellee’s motion for summary judgment for the reason that neither the original of the alleged promissory note, nor a sworn copy thereof was attached to either appellee’s pleadings or appellee’s motion for summary judgment, and, therefore, under appellant’s general denial, there were material issues of fact as to all matters required to be proved by ap-pellee which were not expressly required to be denied under oath by the Texas Rules of Civil Procedure.”

In view of the answer filed by appellant containing a general denial, it was necessary for appellee in this summary judgment proceeding to attach the original note or a verified copy thereof, either to its pleadings, its motion for summary, or to present it by deposition. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965); Sidran v. Tanenbaum, Tex.Civ.App., 391 S.W.2d 93; Alexander v. Houston Oil Field Material Co., Tex.Civ.App., 386 S.W.2d 540.

We cannot consider the statements contained in the briefs with reference to whether or not the original note was produced at the hearing on the motion for summary judgment, as they are out of the record.

The summary judgment should not have been granted and accordingly the judgment of the trial court is reversed and the cause remanded for a new trial.


author: NORTHCUTT, Justice.

text:
    John R. MILLER, Appellant, v. Josephine MILLER, Appellee.
    No. 7618.
    Court of Civil Appeals of Texas. Amarillo.
    May 16, 1966.
    Tom Upchurch, Jr., Amarillo, for appellant.
    James R. Gillespie, San Antonio, for ap-pellee.
   NORTHCUTT, Justice.

John R. Miller on April 6, 1965, sued Josephine Miller in the Domestic Relations Court in and for Potter County, Texas, seeking a divorce. The case was called for hearing and both parties announced ready for trial. The question of Mr. Miller’s residence as being a bona fide resident of Potter County, Texas, was raised and after a hearing the trial court held he was not a bona fide resident of Potter County, Texas, at the time of filing his petition herein and dismissed the suit. From that order Mr. Miller perfected this appeal and will hereafter be referred to as appellant.

Appellant alleged in his original petition that he was a member of the Armed Forces, the United States Air Force, stationed at Amarillo Air Force Base, Amarillo, Texas, and had lived in the State of Texas for more than twelve months continuously prior to the filing of this suit and had resided in Potter County, Texas, for six months next preceding the filing of his petition.

Mrs. Miller, appellee here, filed her answer and cross-action. In her answer and cross-action she alleged that appellant was a resident of Potter County, Texas. There is no question raised in this case as to the appellant’s residence being in the State of Texas. The sole question here to be determined is whether appellant could maintain this action in Potter County, Teaxs.

We are familiar with the rule that the question of residence as a qualification for bringing divorce actions is a fact issue to be determined by the trial court and the trial court’s findings will not be disturbed on appeal unless there is a clear abuse of discretion. The parties to this suit were separated on February 14, 1963, and from that date have lived separate and apart. Consequently, appellant had the right to establish his home anywhere he chose. Smith v. Smith, Tex.Civ.App., 311 S.W.2d 947; Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807. Appellant had been stationed in a military installation in Potter County, Texas, more than two years before filing his petition in this case. Appellant was a citizen of the State of Ohio when he was first inducted into the military service of the United States.

Article 4631, Vernon’s Ann.Tex.Civ.St., does not raise a jurisdictional question as we view the second paragraph of that Article, but determines the qualifications of the appellant to permit him to bring this action in Potter County. That paragraph is as follows:

“Any person serving in a military branch of the United States who was not previously a citizen of the State of Texas and who at the time of filing a petition for divorce has been stationed in a military installation or installations in the State of Texas for a continuous period of twelve (12) months next and in the county where the suit is filed for a continuous period of six (6) months next preceding the filing of same, shall for the purposes hereof be deemed to be an actual bona fide inhabitant and resident respectively of the State of Texas and of the county where such military installation is located.”

“The right to apply for or obtain a divorce is not a natural one, but is accorded only by reason of statute, and the state has the right to determine who are entitled to use its courts for that purpose and upon what conditions they may do so.” 17 Am.Jur., Divorce and Separation, Sec. 8, p. 259. See also Wood v. Wood, supra and Tex.Civ.App., 321 S.W.2d 323.

We are of the opinion, and so hold, Article 4631 gives the appellant the right to maintain this suit in Potter County, Texas, since he has been serving in a military branch of the United States and stationed in a military installation in the State of Texas and in the County of Potter for a continuous period of more than two years prior to filing this suit. We hold the trial court erred in dismissing the case. Judgment of the trial court is reversed and remanded.


author: EAGER, Judge.

text:
    Everett L. TURPIN, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent.
    No. 51026.
    Supreme Court of Missouri, In Banc.
    Jan. 10, 1966.
    Rehearing Denied Feb. 14, 1966.
    Certiorari Denied June 20, 1966.
    See 86 S.Ct. 1925.

      Dwight Roberts, Homer R. Hines, Kansas City, for plaintiff-appellant.
    Clyde J. Linde, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for respondent.
   EAGER, Judge.

This is a suit under the Federal Employers’ Liability Act for personal injuries, filed by one claiming to be an employee of the Chicago, Burlington & Quincy Railroad Company. The jury found for plaintiff and awarded him $30,000. The trial court entered judgment for defendant pursuant to an after-trial motion on the ground that the evidence was insufficient to establish the fact that plaintiff was an employee of defendant; in the alternative it granted a new trial for error in giving Instructions 2 and 3 offered by plaintiff. Plaintiff appealed in due course. After the adoption of an opinion in Division One of this Court, the cause was transferred to the Court in Banc on the Court’s own motion.

As already indicated, the issue here is whether or not plaintiff was an employee of the defendant at the time of his injury. We shall therefore direct our recital of the facts to that issue. The submissibility of the issue of negligence is not in question now. The plaintiff, approximately 42 years old at the time of his injury on March 11, 1961, had been a truck driver for Burlington Truck Lines, Inc., since August, 1957; as such, he belonged to the Teamsters’ Union. Burlington Truck Lines, Inc., was incorporated in June, 1945; it acquired by purchase the assets and routes of a predecessor corporation, Burlington Transportation Company (organized in 1935) in so far as the transportation of freight was concerned, but did not take over its passenger or bus business. We shall often refer to it as “Truck Lines,” but in the singular form. It acquired an ICC permit, and has since operated as a common carrier of freight, with approximately 9,000 miles of certificated routes in various midwestern and western states, serving the public generally, as does any other common carrier. At the time of plaintiff’s injury it was operating approximately 2,100 pieces of equipment, including tractors, trailers and trucks, and it had approximately 1,500 employees. Its general office is in Galesburg, Illinois; the defendant Railroad owns all of its stock, but the Truck Lines operates as a wholly separate entity, with its own bank accounts, paying all its own taxes and expenses, hiring and firing its own employees, and keeping all its financial affairs separate from those of the defendant. Some members of its Board of Directors are officers of the Railroad. It rents terminal space at certain points, including Kansas City, in the freight houses or terminals of the Railroad, and it pays the Railroad a flat annual fee for furnishing claim and medical services and, to some extent, legal services. The Truck Lines negotiates its own labor contracts; it maintains approximately seven employees in its Kansas City Terminal office, including a dispatcher, and about 47 truck drivers and dockmen work for it out of that terminal.

We shall generally refer to the defendant as the “Railroad.” It is a common carrier by rail operating over many of the mid-western and western states. About 1958 the so-called “piggy-back” hauling of highway trailers, loaded and unloaded, on railway flatcars began to develop as an important element in the railroad business. The Railroad owns a rather large terminal and freight house in Kansas City, and others elsewhere. It owns some highway trailers, but no tractors or motive equipment. By an exchange of letters, recognized by the parties as a contract, it agreed with Burlington Truck Lines that it would pay to the latter a unit cost of $10.05 for the loading or unloading of each loaded trailer, which figure included the Truck Lines’ then estimated cost, plus ten percent; this unit payment was later reduced somewhat in varying amounts, but after plaintiff’s injury. The Truck Lines was paid at an hourly rate for handling by truck less than carload lots of the railroad freight either to or from the terminal; in other words, the Truck Lines was paid at specific rates for all services it performed for the Railroad. It acquired and maintained special tractors with hydraulic fifth wheels and other special equipment for use in the loading and unloading of trailers on the railroad cars.

At a time several years before plaintiff’s injury defendant had constructed ramps on two adjoining tracks in its yards so that flatcars could be backed into position and trailers loaded on the cars by running them up the ramps. The details of these ramps are not well shown in our record. Between these two tracks defendant also constructed a “catwalk,” elevated some 39 inches above the ties, 23 inches wide, and leaving a space of approximately 21 inches between the edge of the walk and the edge of the flatcar. (Plaintiff said it was somewhat more.) An exhibit in evidence shows that it was 54 inches from the top of the ties to the floor of á flatcar; some cars of a series on which plaintiff said he was working were approximately 12-14 inches higher. The railroad cars with special equipment for accommodating trailers were sometimes called “piggy-back” cars. When a loaded trailer was placed on a car the tractor was disconnected and, in lieu of the support of the tractor, the front end of the trailer was placed on a “stand” or “stanchion” (constructed as a part of the car) which could be lowered and raised, to which it was firmly fixed. The rear wheels of the trailer were then secured by chains which were run through the wheels or over the wheels and locked to the side rail or bottom of the car. The work on the chains was supposedly performed from the “catwalk” so far as possible, but plaintiff testified that it was often necessary for him to squat on the edge of the car in order to fasten or unfasten the chains and that he was doing so when injured. The loading and unloading of the trailers required a two-man crew. When the Railroad had trailers to be unloaded or loaded it notified the Truck Lines by a teletype maintained by the latter.

March 11, 1961, was Saturday; plaintiff and one other man (White) were the 'only ones on duty at the Truck Terminal, except possibly the dispatcher or foreman; for the first four hours plaintiff worked around the terminal or made deliveries with a truck. After lunch he and White received a teletype message that there were trailers to be unloaded, and they proceeded to the “piggy-back” ramp, presumably to unload cars on a certain track. White drove the tractor; plaintiff handled the “running down” of the stands and the removal of the chains. While engaged in removing a chain which he said had become lodged between dual wheels, standing or squatting on the side of the car, and reaching in between the wheels or over or through a wheel (it is not entirely clear), he fell backwards, struck the edge of the catwalk and thence fell to the ground. White went on and finished the job with such assistance as plaintiff could give. When they quit plaintiff reported his injury to the Truck Lines’ official then in the office. Plaintiff’s injuries are not in issue here, but we note that he returned to work in May, 1961, thereafter was off for periods of two weeks and one week, and has lost very little time since. He worked on the same job for about a year and a half and then “bid in” the job of driving a truck and handling freight solely for Montgomery Ward. He drew Workmen’s Compensation as an employee of Truck Lines for 14-15 weeks after his injury until his counsel asked that the claim be “suspended”; thus, he never received a final disability rating. The negligence claimed was that the catwalk, constructed by defendant, was too low and too far from the sides of the cars, requiring plaintiff to stand on the edges of the cars instead of working from the catwalk. Plaintiff had worked at this “piggy-back” job “on and off” for about three years, but not regularly.

Since the question of employment is our sole issue, it will be necessary to relate in some detail the testimony which plaintiff adduced in his attempt to show such control or right of control by the defendant of the “piggy-back” operations as would make him its employee. We shall first relate the substance of the testimony and rule upon its effect later. In so doing, we combine the substance of the testimony of plaintiff and of certain of his witnesses, Truck Lines employees, as follows. At times railroad car inspectors would come around and examine the cars, loaded or unloaded; while plaintiff said at one point that these men gave “instructions,” he explained on cross-examination that what he meant was that the Inspectors told them if a car was “bad ordered” and could not be loaded or moved. Switch crews of the Railroad frequently came around and checked the loaded cars to see if the trailers were securely chained down, if the “stand” under the front end of the trailer was secured and locked, and if all “bridges” between cars had been raised and secured; the bridges were metal plates which were drawn between cars to permit the passage of tractors and trailers. If any of these things needed correction, the switch crews so told the men on the job, and they did not move the cars into a train until the necessary correction was made. On several occasions the repair track foreman (referred to as “rip” track foreman) came around to complain that the Truck Lines men had been using heavy hammers to loosen the pins which locked the “stand” in place and that they were putting “burrs” on the ends which made it difficult to use the pins again. The “stand” was a built-in part of the railroad car, and any damage to a car was normally referred to the repair track. This item only concerned the unloading of trailers. This occurred about 1958, and that particular equipment was later replaced, the ramp was wired and an electric wrench was furnished and used. There was some testimony concerning the use of railroad tools; the Truck Lines had a toolbox near the site of these operations and furnished hammers and crowbars. While the testimony is very vague, it seems that on some occasions plaintiff and his co-worker procured larger “spike mauls” of the railroad to loosen the pins in the stands; plaintiff said: “We finally had to end up swiping some railroad spike mauls to knock it loose with”; and apparently it was the use of these large hammers that the repair foreman complained of. It appears also that the men at certain times used wrenches from the repair track. All this was eliminated, as we understand, when electricity was installed along the ramp and electric wrenches were furnished as a part of the ramp equipment. This apparently was done long before plaintiff’s injury. Upon two or three occasions during one day and evening in 1959 Mr. Clay (working with plaintiff) got his tractor stuck in a mudhole beside one of the newly constructed tracks. The Railroad kept a caterpillar tractor in a yard somewhere in the vicinity; it was used by railroad employees to clean up the yard and parking area. Clay used the tractor to push a trailer load of steel out of the mud; on the first occasion this was done on his own volition but with permission, — the second time Mr. West, the roadmaster, told him “to use it”; the third time Mr. West used the tractor himself and “tore the back end out of a trailer.” This difficulty was apparently eliminated when the railroad put gravel in the mudhole. Plaintiff testified that he had used the tractor at the direction of Mr. West, but he was not at all specific.

Plaintiff also relies upon the supposed actions and directions of railroad employees upon three specific occasions. In 1957 or 1958, when the “piggy-back” business was in its infancy, the railroad received a shipment of 45 trailer loads of flour, presumably for export. This was quite an occasion, — “a great day’s work” (as plaintiff testified), with some railroad “supervisory personnel” present, as well as Mr. Cooper, the Truck Lines Manager. When plaintiff had difficulty in loading a trailer one of the railroad men (according to his testimony) told him, “I said put it up there,”— which he did and tore up the tractor. Plaintiff testified that he had previously been told who these men were, and that this particular man told him who he was and that “he had the authority to tell me.” On certain occasions shipments of wide steel matting for highway reinforcement were received on trailers; the steel extended about two feet beyond each side of the flatbed trailers. There was testimony that a prior similar shipment had struck the side of a bridge in Iowa and wrecked the train. On these occasions representatives of the railroad were present and assisted in “spotting” the trailers in the very center of the cars; they, of course, were familiar with the clearances of bridges and tunnels. Plaintiff’s co-worker, Mr. Clay, stated that “we had moral assistance from both rail and truck line officials.” On another occasion of an unstated date there had been a wreck near Orrick, Missouri, involving cars carrying loaded trailers. The railroad had brought the cars and trailers, “pieces of trailers” and contents to the ramp in Kansas City for unloading. The railroad road-master and superintendent and Mr. Cooper, the Truck Lines Manager, were all present. Mr. Clay testified that the railroad men had a crane there and they told us “which side we were to set up so they could get it off * * * ” and remove the pieces of trailers. This was prior to 1961; plaintiff did not participate in that operation. We have tried to be very specific in describing all these occurrences, since certain highly conclusional references are made in the briefs to some of these matters.

It was shown that in August, 1958, defendant had issued a single trip pass to plaintiff furnishing transportation for him and his family on certain trains to Scotts Bluff, Nebraska, and return. This was issued to him as a driver for Burlington Truck Lines, and was procured for plaintiff by the Superintendent of the Truck Lines, as a “gratuity.” All of plaintiff’s wages were paid by the Truck Lines on time sheets which he turned in. No railroad employees belong to the Teamsters’ Union.

Plaintiff’s principal point, with several subheads, is that the trial court erred in entering judgment for defendant, because the evidence was sufficient to require submission of the employment issue. We shall cover the subpoints as we reach them. Counsel say that under the FELA decisions, any evidence “even the slightest,” will make a jury issue. They cite Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618; Fitzpatrick v. St. Louis-San Francisco Railroad Co., Mo., 300 S.W.2d 490; Dennis v. The Denver, Rio Grande Western Railroad Co., 371 U.S. 946, 83 S.Ct. 501, 9 L.Ed.2d 496, and Basham v. Pennsylvania Railroad Co., 372 U.S. 699, 83 S.Ct. 965, 10 L.Ed.2d 80. Those cases all involved issues of negligence or proximate cause under the FELA, and it was to the proof on those questions that the remarks relied upon by plaintiff were directed. On the other hand, it seems clear that the burden of proving employment by the defendant in FELA cases is on the plaintiff, that this question is to be determined under general law (general federal law, if there be any difference), and that the terms “employer” and “employee” are used in the act in their usual and natural sense. Ward v. Atlantic Coast Line Railroad Co. (CA 5), 265 F.2d 75; Baker v. Texas & Pacific Railroad, 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756; Jones v. New York Central Railroad (CA 6), 182 F.2d 326; Robinson v. Baltimore & Ohio Railroad Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849; Gloster v. Pennsylvania Railroad (WD Pa.), 214 F.Supp. 207; Cimorelli v. New York Central (CA 6), 148 F.2d 575. Here plaintiff concedes that he was in the general employment of Truck Lines, but he insists that, under the evidence, the railroad was also a joint employer at the time of his injury. This, in turn, depends largely upon the extent of control which the Railroad exercised or reserved over the activities in the “piggy-back” loading and unloading. Chicago, Rock Island & Pacific Railway Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735. Certain other elements do enter into the consideration. Mazzucola v. Pennsylvania Railroad Co. (CA 3), 281 F.2d 267. Plaintiff relies rather strongly on Baker, supra, as to the sufficiency of the evidence, but Baker does not, either by its own language or by subsequent constructions, hold that any evidence which may possibly tend to show employment forecloses a directed verdict or a summary judgment. In that case the work of reinforcing or “grouting” the railroad’s roadbed had been let out to a contractor; however, it was shown that supervisory employees of the railroad defendant had continuously and daily selected the precise points at which a mixture of cement and sand should be pumped into the roadbed, and the consistency of the mixture to be used; also, when the workmen should move to another selected spot. This “grouting” work was a regular part of the maintenance of the road, and the railroad furnished the material. It was held in substance, and under that evidence, that the defendant had reserved sufficient control over the details and manner of doing the work to create a jury issue on the question of employment, and that all reasonable minds could not arrive at a contrary conclusion.

It will not be practicable to distinguish all of plaintiff’s cited cases individually. They are cited largely to show the measure of control necessary to constitute the defendant an employer. One particularly relied on is Cimorelli v. New York Central Railroad (CA 6), 148 F.2d 575. There the United States had, by contract, obtained from the railroad the use of a storage yard, and the defendant railroad had contracted with Duffy Construction Company to load and unload the freight there, upon a cost plus basis. An employee of Duffy was injured and sued the railroad under the FELA. If Duffy were a true independent contractor, there would have been no liability on the defendant. It was held, after a lengthy discussion of the various tests, that there was a sufficient degree of control by the defendant to create a jury issue on the matter of employment. It appeared there: that defendant’s supervisory personnel selected the times and places for all unloading and loading, determined the number of employees Duffy should have, approved or disapproved all wages and salaries, and decided what tools, materials and supplies should be purchased; that the title to all tools and materials vested in the railroad; that the defendant determined what cost items would be approved, with full accounts to be furnished. The court noted that the defendant had retained substantially full control over the work, which was in fact an integrated part of its yard operations, and that actually the primary contract with the government required the defendant to control and supervise all such activities. It is not surprising that, upon those facts, the case was held to present a jury issue on the employment question, by reason of the control not only reserved but actually exercised over almost all details of the performance. Counsel also cite: Byrne v. Pennsylvania Railroad Co. (CA 3), 262 F.2d 906; Baltimore & Ohio Southwestern Railroad Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Pennsylvania Railroad v. Roth (CA 6), 163 F.2d 161. In Byrne, an electrical engineer of Westinghouse was loaned to the railroad for a very considerable period of time, riding its trains, checking up on the equipment and very substantially participating in the operations of the railroad. Roth, supra, was another storage yard case somewhat similar to Cimorelli, but on weaker facts and with little meaningful discussion. Burtch is so wholly different as not to merit discussion.

In a subpoint counsel urge that anyone “furthering the operational activities of the railroad” is an employee; they cite thereon, Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, and Carney v. Pittsburgh & Lake Erie Railroad Co. (CA 3), 316 F.2d 277. In Sinkler, a cook on the private car of the defendant’s general manager was injured by the negligent switching of the car by the Houston Belt Railroad. He sued his own general employer, the Missouri Pacific. The court held that the Belt Railroad was an agent of the Missouri Pacific for the contracted switching purposes and that its negligence was the negligence of one of the “officers, agents or employees” of defendant, under the terms of the act. That determination was not at all the same as the one we are required to make here; there was no consideration of the question of control or other features necessary to make an individual an employee of someone other than his general employer. The handling of defendant’s train in furtherance of its business was merely held to make the Belt Railroad and its employees “agents” (not “employees”) of the defendant. Two justices dissented and two concurred on the ground that defendant’s duty could not be delegated. Carney, supra, involved an injury to a lineman in the regular employ of defendant, while he was on work away from home and was staying at the railroad YMCA at defendant’s direction and expense. A defective bed fell with him during the night. The court held that the YMCA was, at the time, performing “operational activities” for the defendant. Actually, the real holding would seem to be that the injury was one incident to plaintiff’s regular employment. The loading of cars is normally not a part of the operating functions of a railroad. They are delivered empty to the consignor, who does that work himself.

Counsel also argue that the Burlington Truck Lines was set up by defendant as an “illegal device” to avoid liability under the FELA and that such is prohibited and “void.” They emphasize the sole ownership of the stock and the presence of railroad officers on the Truck Lines board; so, they say, the Truck Lines is merely an agent of the railroad. They cite: Davis v. Alexander, 269 U.S. 114, 46 S.Ct. 34, 70 L.Ed. 186; Eddings v. Collins Pine Co., D.C., 140 F.Supp. 622; Ward v. Atlantic Coast Line Railroad Co., 5 Cir., 265 F.2d 75; Del Vecchio v. Pennsylvania Railroad Co., 3 Cir., 233 F.2d 2, and Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799. In Davis, one railroad operated another as part of a single system. In Eddings, a railroad carrier sought to delegate all its operating functions to a corporation which was not a common carrier. Ward recognized the existence of an independent contractor relationship, as did Del Vecchio. We fail to understand why counsel has cited some of these cases.

In the absence of fraud, connivance or an undue domination, the law recognizes the separate entities of corporations, even though one owns the stock of the other; and this principle is applicable in solving questions of employment, as here. Nor is the one, for that reason, the alter ego of the other. Garrett v. Southern Railway Co. (DC Tenn.), 173 F.Supp. 915; aff. CA 6, 278 F.2d 424; Kentucky Electric Power Co. v. Norton Coal Mining Co. (CA 6), 93 F.2d 923; Gaulden v. Southern Pacific Co. (DC Cal.), 78 F.Supp. 651; Fawcett v. Missouri Pacific Railroad Co. (DC La.), 242 F.Supp. 675, aff. CA 5, 347 F.2d 233. In the latter case the court said, in part, at 242 F.Supp., loc. cit. 677-678: “As we analyze it, plaintiff’s real contention is that because the trucking company is a wholly owned subsidiary of the defendant, it, the trucking company was the alter ego, adjunct, subsidiary agent, and instrumentality of the railroad. The jurisprudence as we read it is to the contrary. (Citing cases.) * * * Plaintiff has alerted us to avoid inter-company arrangements drawn to avoid federal jurisdiction under the FELA. We find nothing here indicative of such a purpose, hut we point out as did the Third Circuit (Shaw v. Monessen Southwestern R. R. Co., 200 F.2d 841) that we should also be alert to avoid the extension of a statute applicable to railroad employees in interstate transportation to cover those engaged in other occupations. Such an extension might well deprive a widow and children, as it would here, of their rights under a state compensation act where their right of recovery would not depend upon proof of negligence. * * * A corporation is ordinarily an entity, separate and apart from its stockholders, and mere ownership of all of the stock of one corporation by another and the identity of officers of one with officers of another are not alone sufficient to create identity of corporate interests between the two or the relation of principal and agent between them.” We find nothing in the record here to indicate fraud or any collusive device. The Truck Lines was operated as a wholly independent entity, serving the public generally over a far-flung territory, hiring and firing its own employees, paying its own expenses and taxes, carrying its own insurance, owning its own equipment and generally controlling its own independent operations. It performed similar work in loading and unloading trailers at Chicago for various freight forwarders. It was in no way engaged in the railroad business. And, as held in Ward v. Atlantic Coast Line Railroad, supra, the “device” argument cannot in any event be used to create employment under the FELA.

In many FELA cases the courts have recognized the existence of an independent contractor relationship, holding that unless the relationship is in some way subverted, the employees of the contractor remain his employees and no one else’s. Chicago, Rock Island & Pacific Railway Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735; Gaulden v. Southern Pac. Co. (DC Cal.), 78 F.Supp. 651; Latsko v. National Carloading Co. (CA 6), 192 F.2d 905; Jones v. New York Central Railroad (CA 6), 182 F.2d 326; Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205; Fawcett v. Missouri Pacific Railroad Co. (DC La.), 242 F.Supp. 675, aff. CA 5, 347 F.2d 233; Gloster v. Pennsylvania Railroad (WD Pa.), 214 F.Supp. 207; De Paola v. New York, New Haven & Hartford Railroad (DC Conn.), 198 F.Supp. 12; Aguirre v. Southern Pac. Railroad (Ct.App.Cal.), 43 Cal.Reporter 73; Schiemann v. Grace Line, Inc. (CA 2), 269 F.2d 596 (Jones Act); Valentine v. South Coast Corp. (DC La.), 218 F.Supp. 148. These cases consider, generally, the extent of control necessary to make an employee of the independent contractor an employee of the other contracting party, and further hold that the term “employee” is to be given its usual and natural meaning in FELA litigation. It would be wholly impracticable to discuss the facts of all these individual cases. Generally, the reservation of the right to control the details of the work, as distinguished from its result, is the material factor. Bond, supra. We note in passing: that “occasional directions” given by a railroad crew to the employees of a carloading company working on railroad premises are not controlling (Latsko); that express messengers, working regularly on trains in cars furnished by the railroad, are not its employees (Jones, Wells Fargo) nor is there a joint employment; that an employee of Missouri Pacific Truck Lines, crushed between two highway trailers being loaded on a flatcar of the Missouri Pacific Railroad, was not an employee of the railroad, when hired and paid by the wholly owned subsidiary, and that he was not doing railroad work (Fawcett); that a general control over all transportation functions does not suffice to make an employee of the Pullman Company an employee (also) of the railroad (Gloster). In De Paola, Fawcett and Aguirre summary judgments were entered; in Schiemann, a verdict was directed; in Gaulden, Bond, Jones and Wells Fargo the issue was decided by the court as a matter of law, either by reversal of a judgment, dismissal of the case, or the entry of a defendant’s judgment.

Every case of this character must rest upon its own facts, and we should consider the adjudicated cases as mere guidelines. Before evaluating the evidence, we note again that mere suggestions and cooperation by the railroad do not constitute control, nor do they make an employee of the Truck Lines its employee. Latsko v. National Carloading Co. (CA 6), 192 F.2d 905; O’Brien v. Rindskoff, 334 Mo. 1233, 70 S.W.2d 1085; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; and it is the relationship existing at the time of the injury which is material. De Paola v. New York, New Haven & Hartford Railroad Co. (DC Conn.), 198 F.Supp. 12; McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516. We have seen that, even under the most recent federal decisions, if reasonable minds cannot differ on the effect of the evidence and its inferences, no jury issue exists.

The so-called “instructions” from car inspectors were conceded to be mere determinations of the condition of the car itself, and were immaterial. The inspections by the switch crews were made to make certain that the loads were properly secured and would not shift, and that the cars were ready to move; this, regardless of any regulations or tariff provisions now referred to, was a function which the railroad would and should normally perform as a safety measure and for its own protection. It was, in actuality, an inspection of the result of the work performed. The complaints of the repair track foreman were likewise made in an effort to protect railroad property, and these could not logically constitute the exercise of any control over the details of the work; and, certainly, if railroad “control” was to be exercised, he would not seem to be the appropriate supervisor. The evidence concerning the use of railroad tools was so vague that it hardly constitutes substantial evidence; generally, it seems, these men at certain times appropriated one or more large hammers or mauls for one specific operation and these were the very tools that the foreman complained of. There was some evidence of the use of Railroad wrenches for a time. None of the times is fixed, even approximately. No established practice of the Railroad to furnishing tools was shown, nor would that element, in and of itself, be very persuasive. The whole method was apparently changed before plaintiff’s injury, when electric wiring was installed. The permissive use of the railroad tractor on a very few occasions to push trailers out of a mudhole was a mere act of courtesy, a form of cooperation, necessitated by the fact that the railroad had not at that time properly constructed the access route to the ramp. The tractor was not even kept at the “piggyback” ramp, but was obtained from some other place.

The three instances concerning the loading of the flour, the loading of the highway steel matting and the unloading of the broken-up trailers (following a wreck) were single, isolated occurrences, one in 1957-1958, and all prior to 1961. The precise spotting of the trailers with the wide steel matting was absolutely necessary for the protection of the railroad and its property and constituted no exercise of control in the ordinary sense. In this, again, it was the result that the Railroad was in-interested in. The unloading of the broken trailers in 1959 or 1960 was not a job within the ordinary contemplation of the Truck Lines’ contract; the railroad superintendent and roadmaster and the Truck Lines Manager were all “helpful” as they should have been. The contract, as we understand, did not contemplate the salvaging of wrecks. The railroad had furnished a crane and necessarily participated in such an unusual job. It was also the railroad’s financial responsibility to salvage as much from the wreck as possible, and it recognized this. This evidence is of no real significance. The loading of the 45 trailers of flour apparently turned into a sort of celebration; dignitaries were there, including (according to plaintiff’s hearsay testimony) certain railroad officials, and the Truck Lines Manager. The only significant part of this testimony is plaintiff’s statement that one railroad man (whom he could not identify) told him, when he had trouble getting a trailer loaded on the car, to “put it up there” which he did, ruining the tractor. This was a strictly isolated incident occurring approximately three years before plaintiff’s injury. It represented, probably, a spontaneous outburst by an overly-enthusiastic employee. Standing alone, it does not warrant an inference of control sufficient to make a submissible issue here. The trip pass given to plaintiff and his family in 1958 was not issued to him as a railroad employee, but specifically as a Truck Lines employee; it was a courtesy extended at the request of a Truck Lines officer. Whether its issuance was illegal under federal law (as plaintiff contends) or not, it was issued and used, but its issuance has no relevance here on the question of employment.

We have concluded that the defendant contracted with the Truck Lines to load and unload as an independent contractor, that nothing was done to impair that relationship, and that plaintiff remained solely the employee of the Truck Lines. We further find that on this evidence reasonable minds could not differ, and that the trial court properly sustained defendant’s motion for judgment and entered judgment for it. In this situation a consideration of the instructions becomes unnecessary.

Plaintiff’s motion to strike respondent’s supplemental brief, which was ordered taken with the case, is overruled. The judgment of the trial court is affirmed.

All concur.


author: DOERNER, Commissioner.

text:
    In the Matter of The ESTATE of Mary Lucy LAYNE, Incompetent, Plaintiff-Respondent, v. Joseph EZERSKY, Defendant-Appellant.
    No. 32302.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Rehearing Denied May 23, 1966.

      Bahn & Saitz, Robert W. Saitz, St. Louis, for defendant-appellant.
    Schnebelen & Schnebelen, Milton J. Schnebelen, Farmington, E. L. McClintock, Jr., Flat River, for plaintiff-respondent.
   DOERNER, Commissioner.

This is a statutory proceeding to discover assets. Section 475.160, RSMo 1959, V.A.M.S. The court found that the defendant was unlawfully withholding sums totaling $6,426.44 belonging to the ward and ordered him to pay and deliver the same to Archie T. Douglas, the ward’s guardian. Defendant’s appeal followed in due course.

The guardian initiated the proceedings in the Probate Court of St. Francois County, Missouri, on October 2, 1964, by the filing of an affidavit consistent with the foregoing statute. A citation was issued, and on defendant’s application and affidavit for a change of venue, based on the alleged bias and prejudice of the Probate Judge, the cause was transferred and certified to the Circuit Court of that County. At a hearing held on December 17, 1964, defendant’s counsel, in answer to the citation, formally admitted for the record that defendant was in possession of the money involved but denied the unlawfulness of the defendant’s possession. As authorized by the statute, Section 473.343, the defendant was then examined under oath. Thereafter, the guardian propounded interrogatories in writing, to which the defendant made written answers. The substance of defendant’s answers, so far as the money involved in this appeal is concerned, was that under a power of attorney executed by Mary Lucy Layne he came into possession of the $6,-275.08 in her savings account, and two checking accounts of $81.08 and $70.28, all at the Lemay Bank and Trust Company; and that prior to her adjudication he had disbursed all such funds. Of the disbursements listed by the defendant in his answer over $6,000 was stated to have been paid to himself, primarily as “reimbursements” for “ * * * services, expenses and advancements made in behalf of Mary Lucy Layne.” The remaining $450 was alleged to have been disbursed by various payments to three named persons, one of $150 for services to the ward, and three of $75, $100, and $125 for her room and board, all prior to her adjudication.

Following the filing of defendant’s answers to the interrogatories the matter was specially set for trial on April 14, 1965. Counsel for both parties appeared and were present, but the defendant was not. In answer to the court’s inquiry the attorney for the guardian announced that he was ready on the basis of the pleadings as made by the interrogatories and defendant’s answers thereto. Counsel for defendant expressed the view that while defendant had, “ * * admitted under oath as to the possession of the monies in question * * * ” his answers had exonerated him as to the unlawfulness thereof, and that the guardian should be required to file detailed charges against the defendant so that the defendant would be “ * * * apprised of exactly what he has to defend * * * ” against. In answer to that argument the attorney for the guardian contended, in brief, that inasmuch as the defendant had admitted the receipt and possession of the ward’s funds the burden of proof was on defendant to justify the validity of the disbursements he claimed he had made; and that under the pleadings the burden of going forward with the evidence was also on defendant. The record shows that a rather extended discussion concerning these subjects ensued between the court and opposing counsel, during the course of which the attorney for the guardian inquired whether the court had the defendant’s answers before him. Upon being assured that the court did, the attorney for the guardian proceeded to read at length, as appears in the record, those answers of the defendant in which he admitted that he had come into possession of the ward’s funds. After further argument the court ruled that he was in accord with the view of the law as expressed by the guardian’s attorney, and that the burden of proof was on defendant to establish the disbursements claimed to have been made and their legality.

Defendant’s counsel explained that in the light of his opinion as to what was required of the guardian in the way of a specific charge he had not brought the defendant to court. It developed from defendant’s counsel that defendant was in business in Hot Springs, Arkansas, and that because of the distance it would be impossible for him to appear that day. The upshot of it was that the cause was continued to enable the defendant’s counsel to “ * * * prepare to satisfy this Court as to these money expenditures,” as counsel expressed it. Before that was done, however, the parties, by counsel, stipulated as to certain facts. They stipulated that Mary Lucy Layne had been adjudicated an incompetent in the St. Francois County Probate Court; that such adjudication was made on July 23, 1964; and that on the same day Archie T. Douglas was appointed her guardian.

The next entry in the record before us is that of the judgment on May 7, 1965, approximately three weeks after the first setting. The judgment recites that the case was set for trial on that day, and that the guardian appeared by his attorneys, but that the defendant did not appear, and made default. It is further recited that the court being fully advised in the premises upon the written interrogatories and defendant’s answers thereto finds that at the time of the appointment of the guardian the defendant had in his possession and control money totaling $6,426.44, belonging to Mary Lucy Layne, which he is unlawfully withholding; and it concludes with the order, judgment and decree directing the defendant to forthwith deliver said money to the guardian.

In his motion to set aside the judgment and to enter judgment in his favor, or in the alternative for a new trial, defendant specified but one ground, that, “ ‘The judgment is without sufficient evidentiary support.’ ” That is likewise the sole point urged in his appeal. The substance of his argument is that the judgment cannot stand because the record does not show that the defendant’s answers to the interrogatories were formally introduced in evidence.

In a proceeding of this nature the written interrogatories and the answers thereto constitute the pleadings and settle the issues. In re Petersen’s Estate, Mo., 295 S.W.2d 144; In re Estes’ Estate, Mo., 166 S.W.2d 1061; Roethemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930. In his answers to the interrogatories propounded to him defendant admitted having come into possession of the money belonging to Mary Lucy Layne prior to her adjudication. Having admitted the receipt and possession of such funds the burden of proof, as the trial court ruled, rested upon defendant to establish his right to withhold the money from her guardian and the validity of the disbursements he claimed to have made on her behalf. Roethemeier v. Veith, supra; Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353; In re Weingart’s Estate, Mo.App., 170 S.W.2d 972; In re Jacobs’ Estate, 238 Mo.App. 833, 188 S.W.2d 956.

There are authorities which indicate, contrary to defendant’s contention, that in this type of proceeding a defendant’s admissions in his answers may be considered as evidence although not introduced as such. See Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132; Carmody v. Carmody, 266 Mo. 556, 181 S.W. 1148; Newell v. Edom, Mo.App., 242 S.W. 701; Allmon v. Allmon, Mo.App., 306 S.W.2d 651; Limbaugh’s Missouri Practice with Forms, Vol. I, p. 809, Sec. 645. Assuming, however, without deciding that it was necessary to place defendant’s answers in evidence we cannot agree with defendant that the answers were not so introduced. The hearing on April 14, 1965 was before the court, sitting without a jury. The court had the interrogatories before him, his attention was directed to them by counsel for the guardian, they were read to the court at length, and their import and effect were discussed by the court and counsel. While the defendant’s answers were not introduced in evidence in formal manner our appellate courts have held that analogous actions and circumstances constituted an introduction of the evidence involved and that no formal proffer was necessary. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, cert. den. 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 578; Wolfe v. Supreme Lodge Knights and Ladies of Honor, 160 Mo. 675, 61 S.W. 637; Charles v. Patch, 87 Mo. 450; Baker v. Atkins, Mo.App., 258 S.W.2d 16; Missouri Interstate Paper Co. v. Gresham, 233 Mo.App. 5, 116 S.W.2d 228; City of St. Louis, to Use of Gilsonite Const. Co. v. McCully Const. Co., Mo.App., 184 S.W. 939.

The judgment is affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


author: STONE, Presiding Judge.

text:
    W. C. HOLMAN d/b/a Holman Realty, Plaintiff-Respondent, v. Dale FINCHER and Arlene Fincher, his wife, Defendants-Appellants.
    No. 8510.
    Springfield Court of Appeals. Missouri.
    May 10, 1966.

      Low & Honssinger, Lebanon, for defendants-appellants.
    J. W. Grossenheider, Lebanon, for plaintiff-respondent.
   STONE, Presiding Judge.

In this jury-waived action at law to recover a broker’s commission for sale of real estate, the court entered judgment for plaintiff W. C. Holman d/b/a Holman Realty and against defendants Dale Fincher and Arlene Fincher, in the principal sum of $2,000 with interest thereon from December 12, 1963. Defendants appeal.

About August 18, 1963, defendants listed their 287-acre farm for sale with two real estate brokers, to wit, with plaintiff under an oral listing agreement and with United Farm Agency (hereinafter called United) under a written listing agreement. Under the oral agreement with plaintiff, defendants were to receive the net sum of $45,000 and “anything over that” would constitute plaintiff’s commission. The written agreement with United provided, inter alia, that the sale price of the farm was to be $50,000 and that, in the event of sale to a purchaser “procured through” United, a commission of ten per cent or $5,000 would be paid, with defendants thus receiving the net sum of $45,000. Neither agreement was exclusive.

During September 1963, Mr. and Mrs. O. R. Chambliss, then living on a farm in Texas, made a trip to Missouri with a view to purchasing a farm and moving here. The Chamblisses were looking for a relatively large farm on which to run cattle. On that trip to Missouri, they were in Lebanon and vicinity for about five days, apparently from September 20 to 24, and at different times during that period were shown farms by United’s salesman Anderson and by plaintiff’s son, Edward Holman, a licensed salesman for his father. On September 23, United’s Anderson showed defendants’ farm to the Chamblisses and introduced the parties. As Anderson stated, “they [the Cham-blisses] liked the place but . . . wanted a larger farm.” The Chamblisses questioned Anderson as to whether additional acreage might be obtained by purchase of a designated adjoining farm, and United’s representatives were to investigate that possibility and communicate with the Cham-blisses. Witness Beasley, Anderson’s superior in charge of United’s Lebanon office, testified that after September 23 the owner of the adjoining farm “was contacted and he did not wish to put the property up for sale at that time.” When asked whether that information was communicated to the Chamblisses, Beasley’s uncertain answer was, “I don’t recall, I believe there was a letter written, I don’t know ... I would have to check.” Mrs. Chambliss stated that “they never did . . . tell us about it.” As for price, United’s Anderson said that defendants’ farm had been quoted to the Chamblisses at $50,000, and United’s Beasley thought that “if it [price] had been discussed, which I am sure it was, it was quoted as $50,000.” On the other hand, the Chamblisses testified that United had priced the farm to them at $52,500.

The only time which the Chamblisses spent with United’s representatives was a portion of Monday, September 23 (Cham-bliss said “from 9:00 to 11:30 [A.M.], something like that,” while United’s Anderson thought it was “somewhere between 1:30 and 2:30 [P.M.] when I picked them up . and if I remember it was getting dark when I came back”), and defendants’ farm was the only one shown by United. As Anderson said, “I think we drove by one other property, but didn’t get out and look at it because it was too small.” Upon trial, Chambliss indicated that he had not continued his search with Anderson because “I didn’t feel like that he tried to answer my questions or show me and, if I asked him things ... it didn’t seem like he tried.” In short, Chambliss thought that Anderson “just wasn’t very accommodating.”

Accordingly, the Chamblisses spent most of their time in the Lebanon area with plaintiff’s son, who showed them one farm on September 20, three farms (including one south of Mt. Grove) on September 21, and “several other places” (including the 638-acre Manson farm east of Lebanon and a 400-acre farm west of that city) on September 23. On the morning of September 24, the Chamblisses told plaintiff’s son that “there was no further need for looking at farms, that they were interested in one,” namely, the 638-acre Manson farm. Later that day they departed for their home in Texas, leaving the son with the task of undertaking to negotiate an acceptable purchase agreement for the Manson farm.

After returning to Texas, the Chamblisses wrote plaintiff’s son three times, to wit, on October 3 reiterating “that the Manson farm was the first choice,” on October 8, and again on October 16, and they called him over long distance on October 18. The son, unsuccessfully “trying to secure the Manson place” and “also looking for other places . . . the type of places that he [Chambliss] liked,” replied to the letters and answered the inquiries. The only letter written by the Chamblisses to a United representative was one dated October 16 to United’s Beasley, in which the Chamblisses commented that they liked defendants’ farm “but we think that it is just to high.” To the inquiry upon trial as to whether he had answered that letter, Beasley said “I don’t remember, these records are in [our attorney’s] office.”

On December 7,1963, Chambliss informed plaintiff’s son over long distance that the Chamblisses were driving to Lebanon the following day; and, in response to the son’s invitation, the Chamblisses came to his home on Sunday, December 8, and stayed overnight there. On December 9, plaintiff’s son showed them a SOO-acre farm west of Lebanon, an 1100-acre farm on the Gasconade River, and a farm east of Lebanon. On December 10, the Chamblisses submitted an offer on the Manson farm which was rejected. On December 11, they made an offer on the Woods farm and came “within $500” of purchasing it. Failing in that, plaintiff’s son “persuaded them to go look at [defendants’] place” again. That was the first time he had shown defendants’ farm to them, although, as he frankly stated upon trial, the Chamblisses theretofore had told him that they had seen the farm with United’s representative.

When United had shown defendants’ farm, the Chamblisses had voiced two serious objections, namely, (1) that the farm was too small for the herd of cattle they wanted to run on it and (2) that the price quoted by United was too high, by reason of which (so they insisted) United had not interested them in purchasing the farm. The evidence was that plaintiff’s son induced the Chamblisses to purchase the farm by meeting and overcoming both of those objections. As for the size of the farm, he did “some figuring” with them and finally convinced them that “even though it [defendants’ farm] was a smaller farm that the amount of pasture would handle more cattle than some of the larger ones” — that it “would produce as much as a much larger farm, due to the condition of the land.” As for the price, plaintiff’s son quoted the farm at $47,000, a substantially lower figure than that of $52,500 at which (so the Chamblisses testified) United had quoted it.

On December 12 plaintiff’s son induced the Chamblisses to authorize him to make, on their behalf, an offer of $47,000 for defendants’ farm and to deposit with him an earnest money check of $1,000, and on the same date defendants accepted that offer, all as manifested by a written “Offer and Acceptance” signed by O. R. Chambliss for the purchasers and by Dale Fincher for the owners, which upon trial was received in evidence without obj ection. In the “Acceptance” section of this exhibit, it was stated, over the signature of defendant Dale Fincher, that “the above offer is hereby accepted” and that “we agree to pay agent’s commission of $2,000.” (Emphasis ours) The sale was consummated shortly thereafter by defendants’ conveyance of title and delivery of possession to the Chamblisses.

Before the sale was closed, United’s representatives learned of the deal by “hearsay on the street” and contacted defendants. With both instant plaintiff and United claiming commissions, the situation eventually spawned three suits. In the first instituted in the Circuit Court of Laclede County by United against the Finchers (also defendants in the instant suit) on March 27, 1964, and docketed as No. 5285, United sought a commission of $4,700 under its written listing agreement. In the second instituted in the same circuit court by the Finchers against United and both of the Holmans (plaintiff in the instant suit and his son) on April 6, 1964, and docketed as No. 5290, the Finchers sought a declaratory judgment as to the rights and duties of the parties under the written listing agreement with United and the oral listing agreement with Holman and as to “which under the correct construction of the aforesaid contracts” was entitled to a commission. The third was this case instituted in the same circuit court on September 24, 1964, and docketed as No. 5441, in which plaintiff Holman sought a commission of $2,000 under the oral listing agreement with him.

Prior to institution of this case, No. 5441, the Finchers unsuccessfully sought to consolidate Nos. 5285 and 5290; and, before trial of this case, they unsuccessfully moved to add United as an additional party defendant herein. During trial of the instant case, the original files in Nos. 5285 and 5290 (both of which suits were pending and undetermined) were received in evidence as defendants’ exhibits; and, on this appeal, those original files are brought to our attention in connection with defendants’ lamentation that they “have fallen amongst the Philistines” and that, if the judgment for instant plaintiff be permitted to stand, defendants “could eventually be required to pay real estate commissions to two different brokers.” But, in defendants’ motion for new trial in the instant case, there was no reference to Nos. 5285 or 5290, or to the motions to consolidate those cases, or to the motion to add United as an additional party herein. In this state of the record, none of those matters are for our consideration, wholly apart from the serious question as to whether most of them properly could have been the subject of complaint in the motion for new trial in this case anyway. V.A.M.R. Rule 79.03; V.A.M.S. § 512.160 (1); Grapette Company v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36-37(2, 3); Bybee v. Dixon, Mo.App., 380 S.W.2d 539, 542(3, 4), and cases there cited.

Laying aside the hurrah’s nest of pleadings and procedure, the only point in defendants’-appellants’ brief, and thus the only point for our determination here [V.A.M.R. Rule 83.05(a); Pruellage v. De Seaton Corp., Mo., 380 S.W.2d 403, 405(3); Maxey v. General Electric Co., Mo.App., 382 S.W.2d 67, 69(1)], is whether the trial court erred in holding “that plaintiff had met the burden of proof and . . . was the procuring cause of the sale of defendants’ farm.” In our consideration of this basic question, we are dependent upon defendants’-appellants’ presentation and our own research, since plaintiff-respondent has filed no brief here, thus indulging a practice neither helpful nor commendable. Mannon v. Frick, 365 Mo. 1203, 1205, 295 S.W.2d 158, 161; M.F.A. Cooperative Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 285. See Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 319.

The essence of defendants’ argument is that United, not plaintiff, “first produced the buyers who ultimately purchased defendants’ farm,” and that therefore plaintiff could not have been the procuring cause of sale. In this, defendants are mistaken. A real estate broker need not be the first person to bring property to the attention of the purchasers to entitle the broker to a commission from the sellers. While it is material and important to determine who first found or discovered the prospective purchasers, this is not conclusive. Warren v. Fritsch, Mo.App., 14 S.W.2d 29, 30(3). It is entirely proper for the owners of real estate to place it in the hands of more than one broker for sale; and where this is done and a sale is made, the commission will, in the absence of a distinct contract to the contrary, belong to the agent whose efforts are the procuring cause of the sale, regardless of which one closes it.

As our brethren of the bench in a sister jurisdiction have phrased it: “The simple meaning of this is that where agency to sell is given to more than one, a first approach and negotiation does not earmark a prospect as the exclusive customer of the introducing broker. By listing property for sale with others, each broker is warned that he is operating in a competitive field and in the absence of fraud or collusion to the victor will belong the spoils and whatever effort the loser has put into the race is lost to him.” Reed v. Taylor, 78 Wyo. 216, 322 P.2d 147, 151. In more prosaic style, “the general doctrine” is thus stated in our Missouri cases: “‘While the broker who introduces the purchaser and who is instrumental in finding him is ordinarily the procuring cause of a sale, if several are employed the evidence must go further than merely to justify a finding that the purchaser was one to whose attention the property was brought by the broker’s services. Of course, if the efforts of another broker were the primary, proximate and procuring cause of the sale, the broker originally employed is not entitled to his commission. A broker who is unsuccessful in effecting a sale does not become entitled to a commission upon the success of another broker.’ ” Otherwise expressed, “[t]he broker is not entitled to commissions upon a transaction negotiated through the efforts of another broker without his aid or following his own unsuccessful efforts, even though he had found or first contacted the ultimate contracting party, showed him the property involved, or interested him in it, or had provided the principal with such party’s name.” 12 Am.Jur.2d, Brokers, § 230, p. 973.

To permit recovery by a broker it is not sufficient that his acts constituted one or more links in a chain of causes contributing to produce the sale, but his acts must be the procuring or inducing cause of sale, that is, the cause originating or setting in motion a series of events which, without a break in their continuity, result in accomplishment of the object of the broker’s employment. And the issue as to whether a broker has been the procuring cause of sale is ordinarily one of fact to be determined by the trier of the facts.

Returning to the evidence in the case at bar, United introduced the Cham-blisses to defendants and first showed their farm. However the Chamblisses “wanted a larger farm” and were not interested in defendants’ farm at the price quoted by United’s representatives unless additional adjoining acreage could be obtained. Being unable to arrange for that, United’s representatives appear to have done nothing more. The Chamblisses obviously preferred to make further search in the Lebanon area with plaintiff’s son, rather than with United’s representatives; and it was only after considerable time had been spent in working with and investigating for the Chamblisses, and after numerous farms had been shown to them and their offers for at least two had been rejected, that plaintiff’s son persuaded them to look at defendants’ farm again and then was able to convince them (as United’s representatives had been unable to do) that it was suitable and sufficient for their intended use. So, this is not a situation in which United “had broken the ground, had sown the seed, had tilled the crop . . . had ‘borne the burden and heat of the day’ in working up to the sale [and] [n]othing remained but the harvest,” as was the situation with which this court dealt in LeCompte v. Sanders, Mo.App., 229 S.W.2d 298, 301, extravagantly cited in instant defendants’ brief as being on the facts “closely akin” to the case at bar. Rather the trial court reasonably could have found that United’s representatives had done no more than simply to sow seed which did not germinate, and that the eventual harvest of sale was the result of timely reseeding with careful cultivation to maturity by plaintiff’s son.

We have no doubt but that a sub-missible issue of fact was made as to whether plaintiff’s son was the procuring cause of the sale. Bearing in mind that, in this court-tried case, “[t]he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses” [V.A.M.R. Rule 73.01 (d); V.A.M.S. § 510.310(4)], we think the conclusion inescapable that the judgment for plaintiff should be affirmed.

Lest any of our comments be misconstrued, we hasten to point out that this appeal is determined upon the record before us and that, although its representatives testified upon trial, United is not a party to this action, so we do not here prejudge, or intend any expression of opinion with respect to, the issues in No. 5285, United’s suit for a commission of $4,700 under its written listing agreement. See LeCompte v. Sanders, supra, 229 S.W.2d at 302; Studt v. Leiweke, Mo.App., 100 S.W.2d 30, 35(10).

The judgment for plaintiff is affirmed.

RUARK, J., not sitting.

HOGAN, J., concurs.

      . Studt v. Leiweke, Mo.App., 100 S.W.2d 30, 34(6); Gilchrist v. Stark, Mo.App., 41 S.W.2d 888, 891-892(2); Minter v. Rothschild, Mo.App., 186 S.W. 753, 755(1); Crain v. Miles, 154 Mo.App. 338, 344, 348-349, 134 S.W. 52, 53, 55(5, 6); 12 C.J.S. Brokers § 91 b, p. 210. See Warren v. Fritsch, Mo.App., 14 S.W.2d 29, 30-31(3); Boswell v. Saunders, Mo.App., 224 S.W.2d 125, 128-129(3); Glassman v. Fainberg, Mo.App., 35 S.W.2d 950, 953(5); Rowland v. Progressive Inv. Co., Mo.App., 202 S.W. 257, 259(6).

      . F. H. & C. B. Gerbardt Real Estate Co. v. Marjorie Real Estate Co., 144 Mo.App. 620, 625, 129 S.W. 419, 420(4); Crain v. Miles, supra, 154 Mo.App. at 349, 134 S.W. at 55(5); Moseley-Comstock Realty Co. v. McClelland, Mo.App., 294 S.W. 103, 105, 106(6).

      . Warren v. Fritsch, supra, 14 S.W.2d at 31; United Farm Agency v. Cook, Mo.App., 283 S.W.2d 6, 11. See Crain v. Miles, supra, 154 Mo.App. at 349, 134 S.W. at 55(6); Atkinson v. S. L. Nusbaum & Co., 191 Va. 82, 59 S.E.2d 857, 861(8); 12 Am.Jur.2d, Brokers, § 223, p. 963; Id., § 230, p. 973. Consult also Taylor v. Vestal, Mo., 304 S.W.2d 820, 823-824; McIntyre v. Emmenegger, Mo.App., 355 S.W.2d 351, 354; Real Estate Enterprises v. Collins, Mo.App., 256 S.W.2d 286, 289.

      . To the same effect, see 12 C.T.S., Brokers § 91, l. c. 209; Id., § 92, pp. 213-214. Consult also Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 336, 201 S.W.2d 912, 914(6); Gamble v. Grether, 108 Mo.App. 340, 83 S.W. 306.

      . Martin v. Mercantile Trust Co., Mo., 293 S.W.2d 319, 328(9); Vining v. Mo-La Oil Co., 312 Mo. 30, 50, 278 S.W. 747, 753; Boswell v. Saunders, supra, 224 S.W.2d at 128(2); Williams v. Mashburn, Mo.App., 37 S.W.2d 478, 482(2); Low v. Paddock, Mo.App., 220 S.W. 969, 971(2).

      . Nichols v. Pendley, Mo.App., 331 S.W.2d 673, 675(1); McIntyre v. Emmenegger, supra, 355 S.W.2d at 354; Rogers v. McCune, Mo.App., 283 S.W.2d 872, 877(6); Real Estate Enterprises v. Collins, supra, 256 S.W.2d at 289(3).

      . Barnum v. Hutchens Metal Products, Inc., Mo., 255 S.W.2d 807, 808(2); Blackburn-Ens, Inc. v. Roberts, Mo.App., 379 S.W.2d 630, 633; A. T. Earls Real Estate & Loan Co. v. Wise, Mo.App., 254 S.W.2d 677; Studt v. Leiweke, supra, 100 S.W.2d at 34(3); 12 Am.Jur.2d, Brokers, § 230, l. c. 974.