author: LANGDON, Chief Justice.

text:
    E. L. FITCH, d/b/a E. L. Fitch Trucking Co., et al., Appellants, v. INTERNATIONAL HARVESTER COMPANY, Appellee.
    No. 5490.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1961.
    Rehearing Denied Oct. 25, 1961.
    Murray J. Howze, Monahans, for appellants.
    L. Holt Magee, McGowen & Magee, Monahans, for appellee.
   LANGDON, Chief Justice.

Appellee, International Harvester Company, plaintiff in the court below, brought suit against appellant, E. L. Fitch, doing business as E. L. Fitch Trucking Company, because of default in the payment of a certain promissory note executed by Fitch and secured by a chattel mortgage against a 1959 International truck. At the same time, plaintiff filed an ancillary suit for sequestration and posted a good and sufficient bond in order to obtain immediate possession of the truck. Thereafter, on January 29, 1960, defendant E. L. Fitch, d/b/a E. L. Fitch Trucking Company, re-plevied said vehicle with the defendants, Faye Hunter Hogg, J. B. Fitch and Phil Tripp executing a replevy bond in the amount of $47,350.04, as sureties.

Plaintiff recovered judgment against defendant Fitch in the main suit on April 29, I960, for $23,908.60, plus $1,000 attorney fees. In its judgment, the court found the reasonable value of the truck, at the time, it was replevied by defendant, to be $20,000. Thereafter, on or about June 2, 1960, defendant E. L. Fitch tendered said truck to the sheriff of Ward County, minus certain special oil field equipment which plaintiff contended was a part of the truck. It is the missing equipment, or the value thereof, that is the subject of the present controversy.

The sheriff of Ward County executed a receipt to defendant E. L. Fitch, reflecting the value of the truck as returned at $15,-500, a sum equal to $4,500 less than the reasonable value of the truck as found by the court at the time of its replevy.

On June 7, 1960, plaintiff filed its motion for judgment against the principal and sureties on the replevy bond (appellants herein). A copy of such motion was mailed to defendant’s attorney, Murray J. Howzc, on June 7, 1960. On June 20, 1960, defendant replied to such motion by filing a motion to reform the original judgment rendered by the court on April 29, 1960; to suppress execution on such judgment; and for declaratory judgment. On August 22, 1960, a hearing was had on such motions, before the court without a jury, at the conclusion of which the court announced, “The court is going to grant judgment as prayed for by plaintiff against the sureties on the replevy bond. The Defendant’s motion to set aside the judgment is denied.” To which action by the court, defendant was allowed his exception and gave notice of appeal to the Court of Civil Appeals. Thereafter, on October 11, 1960, the court signed and entered its judgment nunc pro tunc as of August 12, 1960.

The transcript in this cause was timely filed on December 8, 1960. However, the statement of facts, shown to have been filed in the court below on December 9, 1960, was not received in the Court of Civil Appeals until February 20, 1961, after the expiration, on February 8, 1961, of a 60-day extension of time in which to file same, and the clerk of this court properly declined to file such record.

Under Rule 414, Texas Rules of Civil Procedure, appellants, having been granted a 60-day extension of time in which to file the statement of facts in the Court of Civil Appeals, were entitled to an additional 30 days after the expiration of such extended time in which to file their appellants’ brief. The extended time for filing the statement of facts expired on February 8, 1961 and, consequently, the last date on which appellants might have timely filed their brief was March 10, 1961. No brief having been filed by appellants within such time, appel-lee has filed its motion to dismiss this appeal for want of prosecution.

The only writing in the nature of an appellants’ brief attempted to be filed herein is an instrument received in this court on June 8, 1961, bearing the endorsement, “Appellants’ Answer to Motion to Dismiss.” Such instrument was received by the clerk long after the time allowed by law, and the extension of time granted by this court for the filing of appellants’ brief had expired. In such brief, appellants predicate their appeal and motion upon a single point, as follows:

“The judgment entered on October 11, 1960, nunc pro tunc as of August 22, 1960, is void for failure to comply with provisions of the Rules and the law as to motion, notice to opposite party and/or other formalities of law.”

Although appellants have failed to perfect their appeal by the timely filing of the statement of facts and brief herein, we have examined the transcript, appellee’s brief, and have “peeked” at the statement of facts belatedly tendered in this court. From our examination, we have concluded that no reversible error is reflected by the record, and that the judgment of the trial court may be affirmed under the theory presented by the appellee in its brief. In such case, we believe the judgment of the trial court should be affirmed without further examination of the record. Meacham v. Lyles, Tex.Civ.App., 206 S.W.2d 881.

The record in this case reflects that Murray J. Howze, appellants’ counsel, was present and in court on the morning of August 22, 1960, when this case was called for trial. Prior to that, various pleadings had been filed by both plaintiff and defendants, and the issue to be tried had been fully pleaded. When the case was called, appellants’ counsel advised the court that he had a previous setting in Gaines County, but that he was confident he could get to Seminole and return to Monahans by 3 :30 P. M. of the same day. The court thereupon passed the matter until 3:30 P. M. on August 22, 1960. After arriving in Seminole, appellants’ counsel discovered it would be impossible for him to finish there and return to Monahans in time for the 3:30 setting. Accordingly, he called John How-ze, a practicing attorney in Monahans, and requested him to appear in connection with this and one other matter which the court had passed until later in the day. No further motion was made for continuance of the cause. Mr. John Howze appeared as requested by counsel. Both sides announced ready, and a full and complete hearing was had before the court. At the conclusion of the hearing, the trial court rendered judgment for plaintiff, as prayed for, against the sureties on the replevy bond, and a proper notation to that effect was noted on the docket and signed by the judge. In this case, the judgment had been actually rendered from the bench at the conclusion of the hearing. In such case, if the delay in entering the verdict is caused by the court itself, or by process of law, judgment nunc pro tunc may be rendered and entered. Farmer v. Denton, Tex.Civ.App., 231 S.W.2d 908.

Appellants do not contend that the court entered a judgment nunc pro tunc different from that previously rendered by the court from the bench; nor have appellants pointed out any error in such original judgment. They contend only that no notice was afforded them of the court’s intention to enter such judgment, as required by Rule 316, Texas Rules of Civil Procedure.

It is not contended that the error complained of amounted to such a denial of the rights of appellants as was reasonably calculated to cause, and probably did cause, a rendition of an improper judgment in the case, or was such as probably prevented appellants from making a proper presentation of the case to the appellate court. Rule 434, Texas Rules of Civil Procedure.

Plaintiff’s motion to dismiss appellants’ appeal is granted, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice. BARROW, Justice

license: Public Domain

text:
    James V. SHORT, Jr., Appellant, v. Barbara SHORT, Appellee.
    No. 13804.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 27, 1961.
    Rehearing Denied Oct. 22, 1961.

      Lawrence H. Warburton, Jr., Perkins, Floyd & Davis, Alice, for appellant.
    Lloyd, Lloyd & Dean, Parker Ellzey, Alice, for appellee.
   MURRAY, Chief Justice.

This is a child custody case between James V. Short, Jr., and his former wife, Barbara Short, in which the father seeks the care and custody of their two children, James Eldon Short, age 3, and Sherrie Lynn Short, age 2. James V. Short, Jr., filed a petition in the District Court of Jim Wells County, Texas, on November 16, 1960, for a writ of habeas corpus to secure the possession and custody of the two children. Barbara Short answered this petition on November 18, and- also filed a cross-action asking that she be awarded the permanent care, custody and control of her two children. James V. Short, Jr., immediately appeared in the District Court of Jim Wells County and announced ready on both the application for temporary custody of the children and upon the cross-action for permanent custody of them, and stated in effect that he was invoking the jurisdiction of the Jim Wells District Court for both purposes, and wanted the issues raised heard and determined by that court. Whereupon a trial before the court without the intervention of a jury was begun. Evidence was heard showing that James and Barbara Short were married in the State of New Mexico about one year before the birth of their son, James Eldon, on August 27, 1957. On September 6, 1958, their daughter, Sherrie Lynn, was born, and about two weeks thereafter the parents separated and have not lived together as man and wife since that date. Thereafter, Barbara Short filed a suit for divorce, and on June 25, 1959, she was granted a divorce from James V. Short, Jr., and was awarded the care and custody of her two small children. The suit was filed in the District Court of Lea County, New Mexico, being Cause No. 16727, styled Barbara Short v. James V. Short, Jr. At the time, both parties were living in Lov-ington, New Mexico. Thereafter, James V. Short, Jr., instituted proceedings to have the custody of the two children changed to him. An order was introduced in evidence in the court below, styled “Order Modifying Judgment,” rendered in the same court and in the same suit above described, reciting that the matter came on for hearing on June 22, 1960, and showing that the order was not filed until August 30, 1960. This order recites the appearance of the parties, and finds “that it would be to the best interest of the children that the custody be taken from the mother, plaintiff, and given to their father, defendant,” and it was so ordered.

In this connection, Barbara Short testified as follows:

“Q. The fact that the Court had awarded custody to your husband was communicated to you, was it not? A. Yes, sir.
“Q. Now, immediately after that was told to you, what did you do? A. I went to the Judge’s Chambers,
I guess you would call it that, and asked the Court Stenographer if I could see the Judge. He said that he had left.
“Q. Yes. A. And I asked if I might get a copy of the Order.
“Q. Yes. A. He said, ‘no ma’am.’ He said, ‘we will not be able to get that copy for you for two or three months,’ and then I left, left his office, and got in my car, got back out of the car, went to the bank and cashed a check, got back in the car, went to my home and got my children — well, to the neighbor’s home right next to my parents; got my children and left.
“Q. And left New Mexico? A. That is correct.
“Q. Where did you go? A. Well, we have been just about sixteen thousand miles. I couldn’t tell you every place that we have been.
“Q. You say ‘we’. Who is the other party ? A. My children, and Mr. Wood and I.
“Q. Mr. Wood. What is his first name? You call him Cotton? A. Cotton.
“Q. And Mr. Wood is married, is he not? A. That is correct.
“Q. And did you continue to live with him during this period of time between June 22nd and today? A. No, sir, I did not.
“Q. What places did you go in your sixteen thousand mile trip?
“The Court: Is this relevant to this?”

She went on to testify that she had not been 16,000 miles, but her car had been that far; that they stopped in Arkansas for a while and finally came to Alice, Texas, about three months before this trial. She lived there with her aunt and uncle, Mr. and Mrs. Seth Taylor, upon whom she is dependent for support. She now has an apartment, where she and her children live. Mr. Wood is also in Alice. He does not live with her and the children, but has an apartment of his own. She and Mr. Wood are to be married when he secures a divorce. He has four children. She denied positively that she had lived with Mr. Wood or engaged in any immoral conduct with him. It was stated during oral argument that Mr. Wood had since secured his divorce and that he and Barbara are now married and living in Alice, Texas.

She has never been separated from her children and loves them very much, and they love her. She has always cared for them in every way. This testimony was corroborated by Barbara’s aunt, Mrs. Seth Taylor, and other friends and neighbors in Alice, where Barbara had been residing for three months.

The order modifying the divorce decree was not entered until some two months after Barbara had left New Mexico, and it is a fair deduction from the evidence that it was not rendered until that time, though she had been informed by her lawyer that it was going to be rendered. She and Mr. Wood have been arrested upon a warrant of arrest issued out of the State of New Mexico, and have given bond to appear before a Justice of the Peace in Alice. If the State of Texas approves their extradition, they will have to return to New Mexico to answer the charges there. The record does not show them to be guilty of any crime in New Mexico, and they are therefore entitled to a presumption of innocence. When Barbara left New Mexico with her children she was lawfully in charge of them, and, so far as this record shows, was not inhibited in any way from taking them out of the State. The order changing the custody of the children was not filed in court until more than two months later. It is true, her lawyer told her that she was going to be deprived of the custody of her children, but the only evidence that they were ordered taken away from her is the order filed August 30, 1960.

She is the only mother the two children have ever known, and the father scarcely knows the little girl, because he left when she was only two weeks old, and has not seen her since, except upon a few short visits.

The trial court, after a hearing, ordered the care and custody of the children awarded to the mother, with the right of reasonable visitation given to the father, from which judgment James V. Short, Jr., has prosecuted this appeal.

Appellant’s first point is as follows:

“The Trial Court erred in awarding custody to the Appellee as the Court had no jurisdiction to do so or in the alternative, abused its discretion in taking jurisdiction.”

We cannot agree that the District Court of Jim Wells County did not have jurisdiction to render the judgment which it did render herein. The jurisdiction of the court was invoked by appellant himself. He instituted the habeas corpus proceedings in the Texas Court. It is true that he might have invoked such jurisdiction for the purpose of determining the temporary custody of the children, if he had so desired, but he answered the cross-action of appellee raising the issue of permanent status or custody of the children, and eagerly sought a hearing on this matter. He stated he wanted the Texas Court to pass upon the permanent custody of the children, and he will not now be heard to contend that the court was without jurisdiction, and the court did not abuse its discretion in taking jurisdiction. Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1. Appellant admitted all' necessary jurisdictional facts when he answered the cross-action and asked the court to proceed with a hearing on the permanent status of the children, without taking any exception or objection to the court’s jurisdiction.

The case of Bevan v. Bevan, Tex.Civ. App., 283 S.W.2d 305, decided by this Court, is distinguishable from the case at bar. There it was the wife who fled to Texas-with the children and tried to invoke the jurisdiction of the Texas Court. She did so-while the suit in Oklahoma was still pending. The husband did not invoke the jurisdiction of the Texas Court, but objected and excepted to its jurisdiction. In the case at bar, neither the appellant nor the appellee lived in New Mexico at the time of its hearing. The hearing in New Mexico had been on June 22, 1960. This suit was filed on November 16, 1960, some five months later. In June, 1960, both appellant and appellee were residents of New Mexico, and appellant’s mother, upon whom he was depending to help him rear the children, was also a resident of New Mexico. The children-were also in New Mexico. Now appellee and the children are residing in Alice, Texas, and appellant has moved to Lincoln,. Nebraska. If he could secure a judgment-in Texas awarding the permanent custody of the children to him, he could take them to Nebraska at once and everything would be settled for the time being, but if he only-succeeded in having the children returned to New Mexico there could still be a further hearing, as to whether conditions had changed since the entering of the modified decree in New Mexico. With all of this before him, he asked the Court in Alice, Texas, to hear the entire question of custody, and having received an adverse judgment he cannot now be heard to say he has changed his mind and wants a hearing in New Mexico. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293; Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347; Avenier v. Avenier, Tex. Civ.App., 216 S.W.2d 638; Black v. Adams, Tex.Civ.App., 214 S.W.2d 703.

Appellant’s second point is as follows:

“The Trial Court erred in granting a change of custody as there were no change in conditions from the date of decree which would justify such an order or in the alternative, the Court abused its discretion in granting said order under the circumstances.”

The trial court, in rendering the judgment that it did, necessarily found that there were changed conditions since the rendition of the New Mexico order modifying the original divorce decree, and that the best interest of these small children would require that their custody and care be given to their natural mother.

The facts above pointed out certainly justified the trial court in impliedly holding that there were changed conditions. Among other things, at the time the New Mexico decree was entered all parties, including the children, were in New Mexico. Appellant had available to him the assistance of his father and mother in caring for these children. Now all parties to this suit, including the children, do not live in New Mexico. Appellant and his mother both testified that the mother was willing to go to Lincoln, Nebraska, to help him get started with the children, but it is plain that he would have to hire some one to care for the children and leave them to the mercy of whomsoever he could employ. There is nothing in the record to show that the mother is an unfit person to have the care of her children. They love her and she loves them. Appellant left his wife and children when the little girl was two weeks old. He could be little more than a stranger to her. In the absence of a showing that the mother is positively disqualified to have the custody of her children of the tender ages of two and three years, she should be given their custody. Longoria v. Longoria, Tex.Civ.App., 324 S.W.2d 244; Adams v. Adams, Tex.Civ.App., 319 S.W.2d 414; Danache v. Danache, Tex.Civ.App., 296 S.W.2d 821; Rousseau v. Rousseau, Tex.Civ.App., 268 S.W.2d 556.

The trial court did not abuse its discretion in awarding the custody of these infant children to their mother.

The judgment is affirmed.

BARROW, Justice

(dissenting).

I agree that the trial court had jurisdiction of the parties, and the subject matter of the suit, but I disagree with affirmance of the judgment on the facts shown by the record in this cause.

Appellee was on June 25, 1959, granted a divorce from appellant, and was awarded the custody of their two children. Thereafter, appellant filed suit to change the custody of said children. The record does not show when that suit was filed, but the judgment therein, dated June 22, 1960, is in the record to show that on account of appellee’s conduct it was to the best interest of the children that their custody and control be taken away from her and awarded to appellant. Accordingly, the court took such custody and control away from appel-lee and awarded same to appellant. Immediately after the court’s decision, appellee took the children and in company with one Cotton Wood, her alleged fiancé, a married man, with a wife and four children, left the State of New Mexico by automobile, to parts not revealed by this record, ex cept that they did go to the State of Arkansas, and finally arrived in Alice, Texas, where she has been staying. A duly authenticated copy of the decree of the District Court of Lea County, New Mexico-, was introduced in evidence and is in the record in this cause. The validity and binding effect of that judgment is not in any way attacked by appellee. The judgment shows on its face that it is based upon misconduct of appellee, which required, in the best interest of the children, that they be removed from her custody.

Appellant filed this suit in the District Court of Jim Wells County, Texas, relying upon and in an effort to enforce the judgment of the New Mexico- District Court, rendered after a hearing at which appellee appeared in person and by her counsel, and at which time all parties were resident citizens of that State. We are required to give that judgment full faith and credit. Art. 4, § 1, Constitution of the United States. Therefore, when appellant invoked the jurisdiction of the Texas Court, by his application for habeas corpus to secure the possession of his children, he was then and there their lawful custodian and entitled to them, unless and until appellee, by her cross-action, alleged and proved that (1) there had been a change of circumstances since the New Mexico decree, (2) that such changed circumstances were material, and (3) that the material changes were such as to require a change in the custody of the children, considering their best interest and welfare. Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557, and numerous authorities cited therein. Son v. McConnell, Tex.Civ.App., 228 S.W.2d 290; Leonard v. Leonard, Tex.Civ.App., 218 S.W.2d 296; Bezner v. Sawyer, Tex.Civ.App., 217 S.W.2d 858. Under ordinary circumstances I am in complete agreement with the statement in the majority opinion: “In the absence of a showing that the mother is positively disqualified to have the custody of her children of the tender ages of two and three years, she should be given their custody.” It is not only the law, but sound public policy in keeping with natural law. But when a court of competent jurisdiction, in a proceeding in which the mother was present and represented by counsel in a full and fair hearing, has found and rendered judgment that she has so conducted or misconducted herself as to- positively disqualify herself to have such .custody, the judgment is res judicata and extinguishes her right and privilege. The burden of proof is on her in a subsequent proceeding to show material changes that require, in the interest of the children, that their custody be changed. That is also unquestionably the law of Texas. In the absence of proof that the laws of the State of New Mexico are different, we must presume that such is the law of New Mexico-. Rule 184a, Texas Rules of Civil Procedure; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, error refused.

Coming to the matter of change in conditions and circumstances, it is undisputed that upon learning she had lost the custody of these children, she hurriedly took off with this man Cotton Wood and wandered about through three or four States, staying with some of her relatives and some of his relatives, finally landing in Alice, Texas, where at present she resides in a rented apartment paid for by her aunt, Mrs. Taylor, and, according to her own testimony, she is entirely dependent upon the bounty of others for the support of herself and the children. She has no funds, no property, and no employment. Appellee and said Wood are now under bond pending hearing on extradition in felony charges in the State of New Mexico. I agree, that in so far as the prosecution of a criminal case is concerned, as stated in the majority opinion, she is presumed to be innocent, but this does not add to her stature as a proper person to be awarded the custody of these children. As for the change of appellant’s condition, the only change is that he got a better job in Lincoln, Nebraska, than he had in New Mexico. His mother will go with him to Nebraska, and will stay with him until he can get a proper person to look after the children while he is working. He testified that if that plan does not work out, he will go back to New Mexico, where his mother can continue to assist him with the children. So we find that the only change in conditions and circumstances of either party, at most, is a change of post office address. Appellant’s change brought about by a better job, and appellee’s brought about by her own misconduct.

I cannot agree with the statement in the majority opinion that it is a fair deduction from the evidence, even the evidence quoted in the opinion, that the judgment in New Mexico was not rendered until the date the decree was filed, August 30, 1960. I find nothing in the record to justify such deduction. Appellee testified that her lawyer informed her that the judge had awarded the children to her husband. Appellant testified that his lawyer informed him the same thing, and that when he went to look for the children they were gone. The fact that the date of the filing with the clerk might determine the date which controls the matter of timely appeals, etc., is no proof of the date of rendition of the judgment. See, Rule 306a, T.R.C.P. The majority opinion apparently attaches much importance to appellee’s being able to get out of the State of New Mexico, or at least Lea County, before the judgment was rendered, if such was a fact. In my opinion, so far as the merits of this case are concerned, it is immaterial whether she got out before or after the judgment was rendered. She knew she had lost the case and fled the State in utter contempt of the judicial processes of that State.

I cannot agree that the facts set out in the majority opinion, or any other facts in this record, are sufficient to show that such a material change of conditions and circumstances has occurred in the short period of time between the judgment in New Mexico and the trial in Alice, Texas, as would require in the best interest and welfare of the children that the custody be changed. Appellee testified that she knew of no change of her conditions which existed back in June in New Mexico, as opposed to her conditions at the time she testified, and that actually there had been no change, other than that she had changed her residence. She also testified that she knew of no change of conditions as to her husband, except that she had been informed that he had changed jobs and no longer lives in New Mexico. The fact that she loves the children, and is the only mother they have ever known, is hardly a change of conditions. Surely, that is not a newborn relationship. The statement in the majority opinion that “There is nothing in the record to show that the mother is an unfit person to have the care of her children,” is not supported by this record. There is in the record a judgment finding her disqualified. Added thereto is her own testimony that there has been no change since that judgment. In her testimony she makes no pretense of reformation, or that her personal conduct has improved. The inference that appellant left his wife and children is not justified by the record. Appellee testified that they were separated off and on for a couple of years, “and we stopped living together approximately two weeks after my baby girl was born.” Appellee testified that prior to the divorce appellant’s mother kept the boy some, not for a long time, but overnight. She also testified: “After the divorce he was — I permitted to — I permitted them to get him, get my children, from Friday night at six o’clock until Saturday night at six o’clock.” When a father keeps his own children for a night and a day each week for approximately a year, it seems to me the conclusion that he is little more than a stranger is hardly justified. At any rate these facts, if they existed at all, existed prior to the New Mexico decree, and cannot be considered as changed conditions.

Since the trial court in this case, after presumably making implied findings of changed conditions requiring a change of custody from the father to the mother, also decreed that the father “shall have the right to have the children with him for a visit from June 15 at 8:00 o’clock A.M. of each year to July 15, at 8:00 o’clock A.M. of each year,” and then provided that he must receive the children at appellee’s home and return them to her home, and since that judgment has been affirmed by the majority of this Court, it seems to me that the apparent anxiety concerning the safety and well being of these children while in the hands of some well-selected baby sitter in Lincoln, Nebraska, is somewhat over emphasized.

In my opinion, the holding of this Court in Leonard v. Leonard, supra, is applicable and should control here. In that case, a divorce proceeding, upon an agreed judgment the Court gave custody of the child to the father. One hundred and ten days later the mother filed suit to change the custody to herself. The only change in the situation of either party was that she had changed employment, whereby she could be at home with the child all day, whereas, she previously worked away from her home in the daytime and could be with the child only at night. In the instant case appellee filed her cross-action seeking a change of custody one hundred and forty-one days after the beginning of the hearing in the previous case, and only forty-nine days after the date of filing the judgment with the clerk of that court, if that be regarded as the date of rendition. I think the following language in the Leonard case is peculiarly pertinent: “Such frequent hearings as to the custody of children should be discouraged and not encouraged.” [218 S. W.2d 301.] The Court further said:

“It was never intended that a solemn judgment such as the one entered in the divorce proceedings agreed to by all the parties and not appealed from should be so soon set aside upon such slight change of conditions as are found in this case.”

In my opinion, this case has been disposed of by the trial court and the majority of this Court on the wrong theory of law. It is obvious that they have disregarded or overlooked the judgment of the New Mexico Court, and treated the case as though the parties were on equal standing and placed the burden of proof on appellant to show appellee’s unfitness.

This is not a case in which parents, who are resident citizens of different states, are attempting to litigate in their respective states. In this case both parties, as well as their respective parents, were resident citizens of New Mexico, and had been long prior to this controversy, until appellee became a fugitive from that state, for the sole purpose of evading the execution of the judgment of the court. Under the undisputed evidence in this case, together with the legitimate inferences to be drawn therefrom, it is my opinion that the trial judge abused his discretion in this case. The judgment should be reversed and rendered.

I respectively dissent.

      . “In the District Court of Dea County State of New Mexico

        “Order Modifying Judgment

      “This matter came on for hearing this 22nd day of June, 1960, upon the written application of the defendant, James V. Short, Jr., to modify the Judgment entered in this cause on June 25, 1959, to give him the custody of the children for the reason that the mother has conducted herself in such a manner that it is to the best interest of the minor children that their custody and control be taken away from the plaintiff and awarded to the defendant; plaintiff appearing in person and by her attorneys, Neal & Neal, and the defendant and applicant appearing in person and by his attorneys, Williams, Johnson & Houston, and the Court, after hearing the testimony and being fully advised in the premises, finds that it would be to the best interest of the children that the custody be taken from the mother, plaintiff, and given to their father, defendant.
      “It is, therefore, ordered, adjudged and decreed that the custody and control of the minor children of the parties, James Eldon Short and Sherrie Dynn Short, be and the same is hereby taken from the mother, plaintiff, and given to the father, defendant; to all of which the plaintiff, Barbara Short, excepts.
      “Done in open court.
      “/s/ John R. Brand
      Judge of the District Court”


author: McDONALD, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Garland W. SIMS, Appellee.
    No. 3855.
    Court of Civil Appeals of Texas. Waco.
    Sept. 21, 1961.
    Reformed and affirmed Oct. 5, 1961.
    Rehearing Denied Oct. 26, 1961.
    Arterbury, Hoover & Graham, Houston, for appellant.
    Raymond L. McDermott, Albert P. Jones, Houston, for appellee.
   McDONALD, Chief Justice.

This is a FELA case in which plaintiff sought recovery for alleged personal injuries sustained while working in defendant railroad’s shops, in Settegast Yards, Houston, Texas, from October 1954 to January 1957. Plaintiff was a pipefitter who worked on engines in the roundhouse. He alleged that he suffered injuries as a result of exposure to noxious fumes and gases given off by the various engines and locomotives in such shops.

Trial was to a jury which, in answer to special issues, found:

1) Between October 1954 and January 1957, while plaintiff was working in Sette-gast shops, the defendant railroad company failed to furnish him a reasonably safe place in which to work.
2) Such failure was a proximate cause of injury to plaintiff.
3) Defendant railroad company failed to furnish proper ventilation within such shop.
4) Such failure was a proximate cause of plaintiff’s injury.
5) The failure of defendant railroad company to provide direct vents or smoke jacks from the exhausts of the Diesel engines was negligence.
6) Such was a proximate cause of injury to plaintiff.
7) The defendant railroad’s running of several Diesel engines at one time within the shop was negligence.
8) Such negligence was a proximate cause of injury to plaintiff.
9) 10) 11) 12) & 13) acquit defendant of negligence.
14) Plaintiff was damaged $85,000.

The Trial Court entered judgment for plaintiff upon the foregoing verdict.

Defendant appeals on 7 points, contending:

1) There is no evidence to support the answers to issues 1, 3, 5, and 7. (findings of negligence).
2) There is no evidence to support the answers to issues 2, 4, 6, and 8. (findings of proximate cause).
3) and 4) The answers to issues 1, 2, 3, 4, 5, 6, 7 and 8 are against the great weight and preponderance of the evidence.
5)The Trial Court erred in overruling defendant’s motion that plaintiff’s counsel be instructed not to refer to defendant’s refusal to have tests made by a chemist of plaintiff’s choice to determine whether carbon monoxide was given off by the Diesel engines in Settegast shop.
6) The Trial Court erred in overruling defendant’s objection to issues 1, 3 and 5.
7) The verdict and judgment is grossly excessive by at least $75,000.

We revert to defendant’s contentions 1 through 4. Plaintiff was a pipefitter in defendant’s Diesel engine repair shop. He contended and testified that because of alleged insufficient ventilation in the shops, he suffered injury from inhaling the fumes and gases given off by the locomotives. The record reflects that in September, 1954, plaintiff complained of the harmful effects on his body of being required to work in a place where Diesel fumes were permitted to concentrate in large quantities. He became ill and was sent to the Missouri-Pacific Hospital in Palestine. There a diagnosis was made that plaintiff was suffering from carbon monoxide poisoning. The record does not suggest that he could have gotten this poisoning at any place other than his place of employment. The Chief Surgeon called this situation to the attention of the General Claim Agent of the railroad in December, 1954, with a request that more adequate ventilation be provided. In October, 1955, the defendant was made aware by Dr. Young of the existence of carbon monoxide poisoning in the body of plaintiff. A blood test made at that time showed the presence of a significant quantity of carbon monoxide in his system. A request was made that plaintiff be given work where he would not be exposed to Diesel fumes. Plaintiff, in January 1957, had to quit work with the railroad because he could not work around the Diesel exhaust fumes. Dr. Zionts testified that on the basis of his studies and tests, plaintiff was suffering from chronic carbon monoxide poisoning and that plaintiff’s symptoms were caused or progressed by prolonged exposure to Diesel fumes. Plaintiff spent a great deal of time in the hospital, suffering from extreme nausea, vomiting and headaches. His condition is such that if he gets behind an automobile exhaust or lawn mower, the conditions re-occur.

The record further reflects that any number of men became sick from the inhalation of the Diesel fumes in the Settegast shop; that the railroad was familiar with the situation as to bad ventilation, and also with the complaints about men getting nauseated in the shop; but took no action to correct the situation until 1959.

The defendant contends very vigorously that Diesel engines do not give off carbon monoxide in quantities which will do injury to a human. While we think the proof shows to the contrary, we do not think that plaintiff’s case is limited and restricted to injury as the result of the inhalation of carbon monoxide, since the record reflects that there are other elements in Diesel fumes capable of causing injury to man, and we think that the record before us sustained the findings of the jury that plaintiff suffered injury as a result of inhalation of the fumes from the Diesel engines.

We think the record reflects that plaintiff was subjected to an unnecessary hazard which could have easily been eliminated, and amply supports the findings of the jury. Moreover, we think that the record as a whole sustains such findings, and that they are not against the great weight and preponderance of the evidence under the rule of law in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant asserts that plaintiff was just more sensitive to the Diesel fumes than are ordinary persons, and that defendant was entitled to assume the employee to be in good physical condition and not peculiarly subject to any special weaknesses. Here, the defendant was on notice of the conditions; on notice that the plaintiff suffered from inhalation of the fumes; on notice that others were suffering from inhalation of the Diesel fumes, and took no steps to remedy the situation. In a FELA case, recovery will be permitted wherever the employer’s fault in any degree, no matter how small, contributes to the injury. Rogers v. Missouri-Pacific Ry. Co., 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. In the Rogers case, supra, the U.S. Supreme Court states the rule thusly:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result of other causes * * *. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due % whole or in part’ to its negligence.”

See also Thompson v. Quarles, Tex.Civ. App., 297 S.W.2d 321, W/E Ref. n. r. e.; 15 Am.Jur. p. 490, Sec. 81. We think plaintiff’s condition is traceable to his working conditions; and as noted, that the jury’s answers to issues 1 through 8 are amply supported by the evidence. Defendant’s contentions 1 through 4 are overruled.

Defendant’s 5th contention is that the Trial Court erred in overruling defendant’s motion that plaintiff’s counsel be instructed not to refer to defendant’s refusal to permit additional tests to be made by a chemist of plaintiff’s choice, to determine whether carbon monoxide was given off by the Diesel engines. The record reflects that defendant’s witness, Dr. Tonn, testified that he made tests behind the Diesel engines in Settegast shops, but found no carbon monoxide. Plaintiff’s witness, Dr. Ros-mussen, testified that technical literature on Diesel engines said that they gave off carbon monoxide. Plaintiff’s counsel asked defendant Settegast shop’s superintendent if he had any objection to an independent chemist making tests of the exhaust of the Diesel engines in the shop. The superintendent said he had no objection but would have to get permission from his superior. Counsel for defendant thereafter agreed the tests could be made if counsel be satisfied with the qualifications of the chemist. A request was made for a 40 minute recess for defendant to make inquiry of the qualifications of the plaintiff’s independent chemist. The foregoing took place in the presence of the jury. Thereafter, defendant refused to consent to the making of the test. Plaintiff’s counsel thereafter argued the matter to the jury. We think plaintiff was entitled to argue to the jury the defendant’s refusal to permit the tests by the independent chemist. See: Anizan v. Paquette, Tex.Civ.App., 113 S.W. 2d 196, W/E Dism. Further, the record reflects that complaint as to the foregoing was made by Bill of Exception which was disallowed by the Trial Judge because same had not been timely filed or presented. Moreover, all of the arguments to the jury are not before us, and we cannot say that the complained of argument was harmful error in view of the argument as a whole or the record as a whole. See rule 434, Texas Rules of Civil Procedure. Contention 5 is overruled.

Defendant’s 6th contention is that the Trial Court erred in overruling its objection to the submission of issues 1, 3, and 5. We think that issues 1, 3 and S to- be controlling issues made by the pleadings and evidence. Fox v. Dallas Hotel Co., Ill Tex. 461, 240 S.W. 517. Further to the foregoing, issues 7 and 8 were not objected to, and support the judgment independently of issues 1, 3 and 5. Where a judgment is supported by jury findings which are not vulnerable to attack, any improper submission of other issues will not require a reversal. Galveston H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247. Defendant’s 6th contention is overruled.

Defendant’s 7th contention is that the verdict and judgment (in the amount of $85,000) is grossly and outrageously excessive by at least $75,000. The record reflects that plaintiff missed 107 days from his work with the railroad between September, 1954 and when he terminated his work with them in January 1957. At his agreed pay rate, his lost wages amounted to about $2,000. Of course he suffered from pain with his attacks, and also from mental anguish. The -record reflects that after he left the employ of the railroad in January 1957, he did no work until June of 1957, when he went to work as Manager of the Harris County Fresh Water District. Here he worked in an air conditioned office. ITis employment here was terminated when the City of Houston took over the water district. Thereafter he rented 350 acres of pasture and kept cattle on it. Thereafter he bought an interest in some rodeo stock but sold them; he bought some hogs but sold them; thereafter he worked as superintendent of a utilities construction company. Plaintiff testified he terminated the foregoing employments because he became-ill and nauseated each time he became hot. Thereafter (and at the time of trial) plaintiff was a partner in the operation of a used car lot. He keeps the records and stays in an air conditioned office. He testified that he becomes sick any time he becomes hot or does manual labor. Other than as noted above, plaintiff is up, out and about his business. From the foregoing and from the record as a whole, it is our view that the verdict and judgment are excessive in the amount of $42,500, and that this case should be reversed for this reason only. However, plaintiff is given 10 days from this date in which to file a remittitur of $42,500.00. Rule 440, T.R.C.F.; State v. Meyers, Tex.Civ.App., 292 S.W.2d 933, W/E Ref. n. r. e. If such remittitur is filed within the time indicated, the judgment of the Trial Court will be reformed and affirmed.

Reversed and remanded.

After Entry of Remittitur

Plaintiff having filed a remittitur in the amount of $42,500, as suggested by the former opinion of this court, the judgment of the Trial Court is reformed in conformity with said remittitur, and as reformed, is affirmed.

Costs of appeal to date of remittitur are taxed against plaintiff.

Reformed and affirmed.


author: MAUGHMER, Commissioner.

text:
    STATE of Missouri ex rel. Robert FRANCESCONI and Angelina Francesconi, D/B/A International Terrazzo & Mosaic Flooring Company, Plaintiffs-Respondents, v. AETNA CASUALTY & SURETY COMPANY and Sharp Brothers Contracting Company, Defendants-Appellants.
    Nos. 23299, 23300.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Harry P. Thomson, Jr., Thomas J. Leit-tem, Kansas City, Shughart, Thomson, Stark & Kilroy, Kansas City, of counsel, for appellants.
    Herbert M. Rope, Arnold N. Shanberg, Rope, Shanberg & Rope, Kansas City, for respondents.
   MAUGHMER, Commissioner.

This appeal reached the writer by way of reassignment.

Section 107.170 of the statutes requires the contractor for state public works to furnish a bond conditioned upon payment for all materials and labor used thereon. Section 522.300 authorizes a person furnishing such labor or materials to sue on that bond in the name of the state. It was under these provisions that the State of Missouri became a nominal party participant in this case. The purpose of the bond requirement is to provide persons furnishing labor and material the bond security in lieu of mechanics’ liens which are inapplicable to public property. Camdenton Consol. School Dist. No. 6 of Camden County ex rel. W. H. Powell Lumber Co. v. New York Casualty Co., 340 Mo. 1070, 104 S.W.2d 319, 322.

Plaintiffs, Robert and Angelina Fran-cesconi, son and mother, d/b/a The International Terrazzo & Mosaic Flooring Company, are engaged in the business of furnishing and installing terrazzo flooring. A terrazzo floor consists of crushed marble mixed with cement — then ground and trow-elled. Defendant Sharp Brothers Construction Company on December 17, 1957, was awarded a contract by the State of Missouri (Department of Public Health and Welfare) for the construction of three dormitory buildings at the Missouri State School, Higginsville, Missouri, at a total cost of $880,986. Defendant Aetna Casualty & Surety Company is surety on the prime contractor’s (Sharp) performance bond.

The specifications provided for terrazzo flooring in all three buildings totaling 46,000 square feet. The three dormitories to be built were alike as to size and as to the amount of terrazzo floor in each building. Plaintiffs by a written subcontract dated January 15, 1958, agreed to furnish all labor and materials and to do all of the terrazzo work in accordance with the general over-all plans and specifications for a consideration of $49,000. Plaintiffs performed fully as to two of the buildings and were paid $18,429.40 by Sharp. By letter dated February 9, 1959, Sharp terminated plaintiffs’ contract as to the third building and that work was done by another subcontractor, Frank Corazin, on a “cost plus” basis, which amounted to approximately $21,000.

Plaintiffs’ petition is in two counts. Count 1, after identifying the parties, recites the general contract, the subcontract, charges a breach by Sharp, then alleges complete performance as to the two dormitories and asserts that by reason thereof defendant Sharp became obligated to plaintiffs in the amount of $32,667.67 for materials and labor expended on the two buildings, acknowledges receipt of $18,429.40 as payment thereon and asks judgment for the difference of $14,237.27. Count 2 sought recovery of $2,446.87 as prospective profit allegedly lost through denial of opportunity tO' perform as to the third building. Defendants denied generally and Sharp counterclaimed for $23,288.60, asserting damages in this amount by reason of plaintiffs’ alleged delay in performance and the cost of completion as to building number three. The verdict and judgment was for plaintiffs under Count 1 in the sum of $14,237.27, the amount sued for. The finding and judgment was for defendants under Count 2 and against defendant Sharp on its counterclaim. Both defendants appealed from the adverse judgment on Count 1 and defendant Sharp- appealed from the judgment on the counterclaim.

The parties hotly contested as to whether plaintiffs or Sharp or other subcontractors occasioned the admitted delay. Sharp contended the plaintiffs did not get the materials, equipment and workmen on the job promptly. Francesconi said the general contractor’s progress was not timely and that he worked as quickly as the buildings were ready for him. We think there was substantial evidence both ways as to responsibility for the delay, but the jury decided this disputed factual issue and since the sufficiency of the evidence is not questioned on appeal, we need not discuss the question extensively. We believe it was for the jury.

Mr. Francesconi testified that his actual cost outlay for labor and materials on the two buildings was $27,772.92, although plaintiffs asked judgment for two-thirds of the over-all contract price for the two buildings which were completed and claimed such a recovery would be reasonable.

Appellants list eight assignments of error on appeal. No. S asserts the verdict on the counterclaim should not stand because the jury on their first return reported a finding as to Counts 1 and 2, but no finding as to the counterclaim. The Court directed the jury to go. back, make a finding on the counterclaim and return it as a part of the verdict. The jury did so. This procedure was quite proper. In Kaimann v. Kaimann Bros., Inc., Mo.App., 182 S.W.2d 458, 462, the court said: “Where the jury returns a verdict containing a patent ambiguity or defect, it is the duty of tire court, at the time the verdict is read, to call the jury’s attention to such ambiguity or defect so that the jury itself may correct its verdict before it is received and judgment entered thereon.” Nor do we consider the verdict to be inconsistent. It was a finding for plaintiffs on the petition and against defendant Sharp on the counterclaim which arose out of the same matter. Any other finding on the counterclaim in the light of the verdict on the petition would, we think, have been inconsistent.

The other seven assignments allege error in giving Instructions 1, 2, 3 and 4, and especially Nos. 1 and 2. Appellants’ basic challenge of these instructions is that both breach of contract and quantum meruit were submitted when quantum meruit was not pleaded, and that these two separate submissions are inconsistent and improper. Instruction No. 4 had to do- with allowance of damages if the verdict was for plaintiffs under Count 2 (for loss of profits on the third building). Instruction No. 3 listed the requisites for a plaintiff verdict under Count 2. Since the verdict and judgment is for defendants under Count 2, it is difficult to rule prejudicial error against defendants from these instructions. With respect to Count 2, the utmost defendants could have received would have been a finding and verdict for defendants. They received exactly that. The chief appellate controversy has to do with the correctness of Instructions numbered 1 and 2, and we set out the texts thereof:

“Instruction No. 1.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“The Court further instructs the jury that it is admitted that on or about December 10, 1957, plaintiffs submitted to Defendant-Sharp the written proposal mentioned in evidence covering certain Terrazzo work in dormitory buildings of the Missouri State School in Higginsville, Missouri; that thereafter, prior to January 15, 1958, the Defendant-Sharp submitted to plaintiffs an instrument styled ‘Subcontract’, mentioned in evidence, covering said Terrazzo work, and that the plaintiffs inserted in said written subcontract the following words:
“ ‘Conditions and articles in proposal of International Terrazzo dated December 10, 1957, to become a part of this contract;’
that plaintiffs signed said written subcontract with said words inserted by them and returned same to Defendant-Sharp ; and the Court instructs the jury that if you find and believe from the evidence that Defendant-Sharp accepted said written subcontract with the foregoing words inserted therein by plaintiffs or, if you find and believe from the evidence that after the return thereof to the Defendant-Sharp, the acts and conduct of the Defendant-Sharp were such as to lead an ordinarily prudent person acting in good faith to believe that said written subcontract with the foregoing words inserted was accepted, and if you find that plaintiffs did, in good faith, if so, believe that same was accepted, and if you further find and believe that, by reason of the foregoing facts and circumstances, if you so find them, plaintiffs did furnish all of the labor and materials to complete and did complete all of the terrazzo work in Buildings ‘C’ and ‘D’ mentioned in evidence, in accordance with the terms and conditions of said written subcontract, if so,' and if you further find and believe that the plaintiffs prosecuted the work provided for by said written subcontract with such diligence as was reasonably possible, if so, under the conditions and circumstances affecting the work, as you may find from the evidence existed, if so, then you are instructed your verdict will be in favor of the plaintiffs and against the Defendant-Sharp and the Defendant-Aetna under Count I of plaintiffs’ petition.”
“Instruction No. II.
“The Court instructs the jury that if your verdict is in favor of the plaintiffs and against the defendants under Count I of plaintiffs’ petition, you may award the plaintiffs damages thereunder in such amount as will .reasonably compensate them for reasonable value of labor and materials furnished to that portion of the work which you find they completed, less the sum of $18,429.40 heretofore paid plaintiffs by Defendant-Sharp. In this connection, the Court instructs the jury that the price of $49,000.00 set forth in the written subcontract is presumed to be the reasonable value of the labor and materials required to perform the entire subcontract, and if your verdict is in favor of the plaintiffs and against the defendants, you may take into consideration in assessing plaintiffs’ damages under Count I that proportion of the entire subcontract which you find and believe from the evidence plaintiffs completed and you may award plaintiffs as damages under Count I that proportion of the total contract price, less the sum of $18,429.40 which has been paid the plaintiffs, and you may allow plaintiffs interest on such award, if any, at the rate of six (6%) per cent per annum from the date which you find plaintiffs completed such work.”

Appellants argue strenuously that (1) suit for breach of contract and on quantum meruit are inconsistent and plaintiffs can sue on one but not on both; (2) that plaintiffs’ petition is for breach of contract but Instruction No. 2 authorizes recovery on quantum meruit; (3) the jury was not required to find that plaintiffs suffered any damage; (4) there was neither allegation nor proof that the amount sued for and recovered was the reasonable value of the labor and materials furnished or that the work was performed in a workmanlike manner and (5) the jury was not required to find as a prerequisite to plaintiffs’ recovery that Sharp had breached the contract.

Civil Rule 55.12 (Sec. 509.110 V.A.M.S.) V.A.M.R. permits a party to set forth two or more statements of a claim either in one or separate counts. The purpose, the effect is to enable parties to submit the whole controversy in a single action and avoid a multiplicity of suits. On this subject generally in Lee-Schermen Realty Co. v. Rueffel et ux., Mo.App., 176 S.W.2d 655, 657, the court said: “* * * it is also the settled law that a count based on an expressed contract may be joined with a count based on quantum meruit. * * * And furthermore it has been held, that plaintiff cannot be compelled to elect on which count he will go to the jury.” However, we do not consider determination of this question as decisive of our case.

Count 1 of plaintiffs’ petition alleged the contract, performance in accordance with the plans and specifications as to two buildings, the breach precluding performance as to the third building, and prayed recovery for two-thirds of the contract price as and for payment for work and materials furnished. Their second count asked damages for loss of anticipated profits-as to building three, but that count is now out by reason of the jury’s verdict.

Instruction No. 1 told the jury that for plaintiffs to recover on Count 1 there must be a finding of (1) entry into the subcontract; (2) furnishment of all materials and labor necessary to complete the terrazzo work in buildings one and two, and completion thereof in accordance with the terms and conditions of the subcontract, (This included the over-all specifications which were by reference made a part of the subcontract) and (3) that plaintiffs prosecuted the work with such diligence as was reasonably possible. The jury found for plaintiffs under Count 1 and so reached all of these enumerated and essential conclusions. No contention was made at the trial or on appeal that the work done on the two buildings was not done properly or in a workmanlike manner. The dispute revolved around its timeliness and who was responsible for the delay. We believe Instruction No. 1 is a good and proper instruction, is complete, is in conformity with the pleadings and issues raised during the trial and authorizes a verdict for plaintiffs.

The next question then, if there is a verdict for plaintiffs under Count 1, is determination of the amount of recovery, which in turn requires measurement of damages. The Court undertook to and did instruct thereon by Instruction No. 2. By this instruction the Court said really two things: First, the damages should be in an amount that will reasonably compensate for the labor and materials furnished for the two completed buildings, less the amount admittedly paid by Sharp and second, in determining this reasonable amount the contract price is presumed to be the reasonable value of the labor and materials required. There was no evidence offered or contention made that the contract price was other than reasonable, and reasonable value for building installations has long been held to include not only the actual cost of the supplies but a reasonable profit. Kansas City Structural Steel Co. v. Athletic Bldg. Ass’n et al., 297 Mo. 615, 249 S.W. 922(2).

In Smith d/b/a Cape Asphalt Paving Co. v. Ray M. Dilschneider, Inc., 283 S.W.2d 631, 634-635, the Supreme Court quoted with approval the following from Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824, 829: “ 'The plaintiff does not repudiate the contract nor seek to avoid it in indebitatus assumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price. (Citations.)’”

This court in Cross, d/b/a Eighteenth Street Lumber Co. v. Robinson, 281 S.W. 2d 22, 26, discussed a similar situation and reached a like conclusion: "As we understand her argument, she asserts that this instruction submits plaintiff’s measure of recovery upon reasonable value of the services rendered and material furnished, and also upon the contract price. In other words, submits both on quantum meruit and on the contract. She misconceives the meaning of the instruction. It submits plaintiff’s measure of recovery ‘at the reasonable value of the work and material as shown by the evidence, but governed by the contract price of $950, * * * ’. The rule is that in a suit on quantum meruit based upon a contract, the plaintiff cannot recover in excess of the contract price. That is the meaning of plaintiff’s instruction number 2. 24 L.R.A.[N.S.], Note I, page 327. Almost this identical instruction, under similar issues, was approved by the court in Yeats v. Ballentine, 56 Mo. 530, 534. There is no merit in this contention.”

In 25 C.J.S. Damages § 71, p. 560, the general rule is set out: “Stated broadly, the measure of compensatory damages is such sum as will compensate the person injured for the loss sustained, with the least burden to the wrongdoer consistent with the idea of fair compensation.” The footnotes thereto quote from Davis v. Standard Rice Co., Tex.Civ.App., 293 S.W. 593, 598: “The primary purpose of rules for the measurement of damages is to give fair and just compensation for loss, and no rule which would defeat this purpose when applied to the facts of a particular case should be followed in that case.” The Syllabus (1 & 2) to Moore v. Board of Regents, 215 Mo. 705, 115 S.W. 6, declares the rule as follows: “A building contractor who fails to perform his contract is entitled to recover the reasonable value of work done and materials furnished by him, and appropriated by the owner, not exceeding the contract price, less any damages suffered by the owner by reason of nonperformance of the contract.” “A building contractor who is wrongfully forbidden by the owner to carry out his contract is entitled to recover the reasonable value of the work done and materials furnished by him and appropriated by the owner, without diminution by damages suffered by the owner by the contractor’s failure to complete the contract.”

Our review of Instruction No. 2 has been restricted to the contentions raised, preserved and presented to this court and while we do not give general approval to the instruction or recommend it for future use, we find no reversible error as to the points raised and considered.

Under Count 1, plaintiffs, if Sharp wrongfully breached the contract as the jury found, were entitled to recover the reasonable value of the materials and labor furnished. For plaintiffs to recover under Count 2 for loss of anticipated profits, had they been permitted to complete the third building, required substantial affirmative proof of loss. Such proof in the usual case is speculative. It is affected by weather, varying material costs, possible strikes and might be lessened by another advantageous contract timely secured. We think there was judgment and reason in the jury’s verdict.

In this case it is conceded that two-thirds of the work agreed to be done was done. The verdict and judgment is for two-thirds of the contract price. The record justifies the conclusion that the terrazzo flooring was competently laid of good materials and in a workmanlike manner. We find no reversible error in appellants’ assignments. We have examined the many cases cited by appellants but are not thereby persuaded that reversible error was here committed.

Since the recovery is for work and materials, the performance bond undertaken by defendant Aetna is liable for the unpaid balance which is the amount of the judgment. Interest at the statutory 6 percent rate was properly assessed.

The judgment herein is in all respects affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: O. P. OWEN, Special Judge.

text:
    Henry J. LUESSE, (Plaintiff) Appellant, v. Lawrence WEBER, Irene Weber, his wife, and Carl Weber, (Defendants) Respondents.
    No. 30627.
    St. Louis Court of Appeals. Missouri.
    Oct 17, 1961.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 15, 1961.

      Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
    Robert V. Niedner, Niedner & Niedner, St. Charles, for respondents.
   O. P. OWEN, Special Judge.

Plaintiff-appellant sought in his petition to enjoin and restrain defendants-respondents from maintaining a pontoon bridge across the waters of Weber Lake, for an order requiring the removal thereof, and for damages for depreciation of his land underlying a portion of Weber Lake by reason of the erection and maintenance of the pontoon bridge in the sum of $8,000.

Defendants set up the defense of limitation and laches. The parties will be referred to as plaintiff and defendants.

The trial court denied relief sought by plaintiff upon a finding that the plaintiff was precluded by acquiescence in the construction and maintenance of the barrier in Weber Lake and by limitation.

The same pontoon bridge was involved in a suit brought by Theodore Newton Sneed against these same defendants to enjoin and restrain defendants from maintaining the bridge and to require defendants to remove the bridge. That case was ruled adversely to plaintiff and on appeal to this court the judgment of the trial court was affirmed. Sneed v. Weber, Mo.App., 307 S.W.2d 681.

The opinion in the Sneed case is com- 1 prehensive and inclusive and in our view contains a statement of historical facts which pertain to this instant case. To avoid unnecessary repetition we adopt the statement in that case, supplementing it with such additional evidence as was adduced in the trial of this case. I

Henry Luesse, plaintiff, testified his father acquired the Luesse tract, part of which underlies a portion of Weber Lake, in 1906, when plaintiff was about IS years of age and that he has lived there since. At the time of moving there a natural lake was on the property. A drainage ditch ran from Marias Temps Claire about two miles into Weber Lake. At times one could go by rowboat from Weber Lake into the Mississippi River. Sometimes one would have to pull the boat through. About half the year a boat could go through without pushing. The concrete dam between Weber Lake and the Mississippi was put in raising the level of Weber Lake several feet around 1914 or 1915. Plaintiff’s father helped put in the dam. This raised the water on the Luesse property. Following the erection of the dam plaintiff and his family used the entire surface of the lake. A steel boiler in the dam for overflow, through which plaintiff could almost walk at normal level, would have 6 or 8 inches of water in it, and at other times would be half full. This was 200 or 300 feet from the Mississippi. There were seasons when the waters of the Mississippi raised enough to cover the dam. Since the construction of Alton Dam the level of water in Weber Lake is 6 or 8 feet higher. The dam in Weber Lake is still there but the earthen construction at either end is gone. The earthen part was cut off at each end of the dam by high water before construction of Alton Dam. At this time about 1 foot of the dam extends above the water. The top of the boiler in the dam is about 2 feet below the top of the dam. Since the operation of Alton Dam the water level varies about 1 foot by the opening- and closing of gates. Excessive floods would cause greater variation. His father on occasions would use a boat to go- to the Mississippi through Weber Lake. Sometimes he could row through and then again he could not. He never went through the boiler pipe in the dam. After the earthen works at the end of the concrete dam went out and after the building of Alton Dam, it was possible to go from the Mississippi up to the Luesse property at all seasons with no obstructions. The pontoon bridge was built about 200 feet south of the concrete dam after the building of Alton Dam, and this pontoon bridge prevents boats from moving from the Luesse property over Weber Lake to the Mississippi River and return. Plaintiff desires to have a boat dock on his property.

After the concrete dam was constructed at Weber Lake a fence consisting of piling and three wires was constructed by the Webers on the line of the Weber property to keep the Luesses from going over the Weber waters with a boat. Prior to 1920 when automobiles became prevalent the Webers didn’t object to members of the Luesse family fishing wherever they wanted on the lake. The wire fence did not remain long as some fellow in a boat snipped the wires one night and they were never replaced. His father helped put in the boiler for overflow and plaintiff and his father worked there with a team and scraper. Neither plaintiff nor any member of his family made any effort to remove the posts or pilings nor objected to the fence. The fence was placed in the lake after the Luesses began to permit fishing in Weber Lake for a fee. Those who paid Luesses a fee for fishing were supposed to fish on that part of the lake on Luesse property, and Weber charged a fee for those who fished on the Weber property. This situation had existed since about 1920. Occasionally when someone who paid Luesse would get onto the Weber side he would be requested to go back and also someone who paid Weber and who got onto the Luesse property would be ordered to go back to the Weber property. The pontoon bridge was put in after the Missouri River broke out over St. Charles County and down through Weber Lake and tore out everything. This was about 1951. That flood washed out on both sides of the dam and heavy planks were placed from the main shore to the concrete wall so people could walk across the concrete dam, and those planks prevented the passage of boats. But occasionally plaintiff and the Beilsmith boys would take a boat under the boards at the end of the dam. The building of the small concrete dam extended the area of Weber Lake over about 4 or 5 acres of the Luesse property.

Theodore Sneed, who had maintained the prior suit, testifying for plaintiff, identified photographs he made on September 19, 1955, which were offered in evidence. Most of the pictures were made from a boat, which for the purpose of some of the photographs, was pulled over the pontoon bridge by the witness. These photographs were taken first from the county road facing north and then progressively down the body of water into the Mississippi River. Witness measured the depth of the water in Weber Lake, which is 10 feet or deeper; at the pontoon bridge about 7 feet deep; and from the pontoon bridge to the main part of Alton Lake it runs 7 to 9 feet in depth. There are a few stumps in the water between Weber Lake and the main body of Alton Lake which do not interfere with navigation.

George Boschert, bom and reared in the area, testified that during high water he brought a number of workmen over what was formerly Weber Lake to get them to Lambert Field to work at McDonnell Aircraft Corp. This was for a week or so in 1951. He took them from Portage des Sioux in a motor boat. The water then was about 12 feet higher than pool stage. The only other time he had a boat in that area was about 1908 before the concrete dam was built.

Vincent Connoyer, resident of Portage des Sioux since 1921, testified he went over the Weber Lake area during high water, the last time being during the last flood in 1951, when for 22 days he took groceries, passengers and mail to Luesses. He had driven his boat after the flood, when the pool was normal, around the concrete dam in Weber Lake on either side. At that time the bridge had been washed out by the flood. When the Missouri River came up the current was very strong, and then witness would travel above the Webers to get to Luesse’s property, and after the water receded he would go up through Weber Lake. When the flood was at its height it' was not practicable to travel through Weber Lake because of the current.

Hubert Jacobs of Portage des Sioux, testified that over a period of 2 weeks in 1943 or 1944 he traveled by boat during high water in going to and from high school daily. The only obstruction from the main body in Alton Lake up to the Weber Lake portion was the concrete dam which he had to go around when the water got back to pool level. He never rode a boat from the Mississippi River up to Weber Lake other than during a flood and that was because the road from Portage des Sioux to St. Charles was under water. The flood waters raised the level of the Mississippi at least 10 or 12 feet which was over the concrete dam in Weber Lake and way up over the stumps and trees between Weber Lake and the Mississippi.

Lawrence Weber, one of the defendants, testified that before Alton Dam was completed, at other than floodtime, there was no water connection between Weber Lake and the Mississippi River. The concrete dam at the lower end of Weber Lake was built by Weber’s father around 1908. Pie remembers that Mr. Luesse, father of plaintiff, was around when the dam was built but he did not see Mr. Luesse do any work on it. At normal stage water would run only in a trickle between the dam and the Mississippi River. There were times when the river was up that one could get a boat from Weber Lake to the Mississippi River. He never saw anyone take a boat over the ditch between Weber Lake and the Mississippi River before the concrete dam was built. The building of the concrete dam deepened the water in the part of Weber Lake on the Luesse property, but it occupied only a very little more of the Luesse property because of the steep bank on the Luesse property. He recalls no fence between the Weber and the Luesse property before the dam was built. Both before and after construction of the concrete dam people who paid Luesse for the privilege of fishing were kept on the Luesse property and those who paid the Webers were kept on the Weber property. A fence was built about 1925 by driving pilings when there was ice on the lake and placing wire thereon. They had plenty of trouble with people cutting the wire. Witness does not remember the Luesses making objection to the fence. The fence was repaired but floodwaters made it impossible to keep the fence and it was washed out. The concrete dam was for the purpose of raising the level of Weber Lake and to enable the crossing for farm purposes and for people to cross over and go around the lake when fishing. The pontoon bridge was built when the flood waters washed out the ends of the dam. The floods did not damage the pontoon bridge because it could be pulled over to the side during a flood and replaced across the lake when the flood was over. During flood stage the water would be 10 to 12 feet higher than normal. No objection was made by the Webers to passage of boats from Portage des Sioux to the Luesse property when Highway 94 between Portage des Sioux and St. Charles was flooded. About 1930 a drag line was used to dig out from the concrete dam to within about 40 feet of the Mississippi River and another dam was placed there with a pipe for overflow. In 1934 the water started to get low and they pumped water into one lake and let it run into the other to keep the fish from dying. There has never been any commercial boat traffic in Weber Lake from 1903 to the present time. The flowage easement of the government includes clubhouses, cottages, picnic tables, toilets, groves, trees and picnic areas. If motorboats are permitted the fishing would be affected. A crossing over Weber Lake has been maintained since 1908.

Louis Ostmann, a farmer and former contractor and excavator testified that in 1930 or 1931 he dug a lake between Weber Lake and the Mississippi River. There was before this time no water connection between Weber Lake and the river, it having been grown up in brush and trees. The new lake was dug to within 40 or 50 feet of the Mississippi by use of a drag line. Old Weber Lake was severel hundred feet from the river. The cost of the work done by witness was $1,200 or $1,500. There was no water in particular where he excavated. He dug a ditch between the newly excavated lake and the river in which to lay a pipe. He knows of no way a boat could have operated from the Mississippi to Weber Lake before Alton Dam was built.

Helmuth Dallmeyer, operator of a marine supply and boat store and general insurance business, residing in St. Charles, testified he has been acquainted with the Weber Lake area since 1928 or 1929. The ditch from Marias Temps Claire to Weber Lake did not always have water in it. When heavy rains came water covered thousands upon thousands of acres of land. The Webers have a fishing resort at Weber Lake and have a boat dock 500 yards or so upstream from Weber Lake which has no connection with Weber Lake. In the witness’ opinion the use of motor boats on Weber Lake would contaminate the water because of microscopic film from motor exhaust which would affect the fish. If this occurred for a few months witness believes fishing on Weber Lake would be done with. A small outboard motor craft could go from Alton Lake into Weber Lake except for the pontoon bridge, but there are stumps which cannot be seen on photographs which make navigation difficult. Witness remembers the piling fence separating the Weber and Luesse property until the flood of 1947 or 1951. Witness and his father belonged to the old Weber Lake Club. During the floods he was Disaster Chairman of the Red Cross for St. Charles County. In 1951 the entire town of Portage was completely isolated and it was necessary to provide some method of getting food to the people and to get people to doctors.

Francis Rauch has been acquainted with Weber Lake since 1906 or 1908 when he was a boy. There was never a water connection between Weber Lake and the Mississippi River. He remembers the fence between the Weber’s and Luesse’s property which remained until Alton Dam was put in.

The finding of the chancellor, at the conclusion of the hearing of this case, is as follows:

“Plaintiff bases his right to recover under Count I upon two theories: First, upon rights growing' out of his ownership of a portion of the land underlying Weber Lake, and secondly upon the theory that Weber Lake is a navigable stream. The two theories will be dealt with in inverse order.
“The facts here have been compared with those reported in Sneed v. Weber [Mo.App.], 307 S.W.2d 681. They differ only in two respects. Plaintiff points to a portion of that opinion at page 688 relative to a conclusion as to what the present level of Weber Lake would be if there had been no excavations, and then calls attention to testimony in this case tending to contradict that conclusion. However, that conclusion was not a necessary foundation of the rationale of the Court of Appeals in its finding that Weber Lake was not navigable. Hence, this new evidence does not warrant a different result. Next, there was additional evidence in this case concerning the use of the area by small boats during times of excessive floods. It does not follow from this that Weber Lake was navigable. Greisinger v. Klinhardt [Klinhart], 282 S.W. 473, 476. Accordingly, this Court is bound by precedent to deny relief to plaintiff on the theory of navigable waters.
“The first of the series of Klinhardt [Klinhart] cases, Greisinger v. Klinhardt [Klinhart], 282 S.W. 473, is akin to the case at bar. There, a non-navigable natural body of water was dammed to form an artificial lake. The parties acquired title to' portions of the lake, and plaintiff sought to establish a right to use the entire surface. The Court first expressed doubt that either owner had an exclusive right as to the waters over his own land, and then rather hesitantly held to the contrary, saying that in the absence of prescriptive rights or estoppel each owner had the exclusive right to the waters over his own portion of the land. Even the result was inconclusive, for the Court merely dismissed the petition, without prejudice. Then in the second Klinhardt case, Greisinger v. Klinhardt [321 Mo. 186], 9 S.W.2d 978, the Supreme Court squarely held, at l.c. 983, that each owner did have the right to use the entire surface of the lake ‘the same as if it were a natural body of water.’ The third Klinhardt case [Mueller v. Klinhart, Mo.], 164 S.W. 2d 928, involved an injunction by which the defendant was enjoined from maintaining a fence along the property line through the lake. Upon transfer to the .Springfield Court of Appeals, 167 S.W. 2d 670, the injunction was affirmed. That Court interpreted the second case 9 S.W.2d 978, as holding that ‘one whose property was covered by waters of an artificial lake, created by a predecessor in title of both defendant and plaintiff, is entitled to use all of such waters.’
“Applying these principles to the case at bar, it seems clear that upon the initial severence of the Morrison tract in 1865, the grantor and the grantee ■of the ‘Luesse tract’ each acquired an ■easement to use the entire surface of the lake as it then existed. This prevailed in 1908 when Charles Weber and Henry Luesse were the respective owners of the portions of the bed of the original lake. The enlargement of the lake by Weber’s dam in 1908, with Luesse’s knowledge and consent, would not lessen the easement of Luesse to the surface use of the lake.
Plaintiff relies upon this entire-surface easement as the basis for his prayer for injunctive relief to compel defendants to remove the pontoon bridge across the far end of Weber Lake. The defendants counter by pleading limitations and laches.
“The record is void of any previous claim of right by the Luesses.to use any part of the lake lying over the Weber lands. To the contrary, it affirmatively appears that for at least thirty or forty years before this suit was filed each owner used only his own part of the lake’s surface, and when the occasion arose, objected to such use by the licensees of the other. During most of this period there was a fence along the property line through the lake, built by the Webers, to which the Luesses never objected. The fence was damaged from time to time, and gradually disappeared, but the line was accepted by each owner as the boundary of his surface rights. Further, since the raise in the level of Weber Lake by the inundation of the Alton Lake in the mid 1940’s, the Webers have maintained a barrier between Weber Lake and Alton Lake. Until 1951 or so this barrier was the concrete dam and its wooden approaches which served as the Weber’s access to the other shore of the lake. Since damage to that structure by the 1951 flood, the barrier has been the pontoon bridge now in question, located 200 feet upstream from the concrete dam.
“Accordingly, it appears that for the past thirty years and more the plaintiff and his grantor have made no claim of right to any portion of the lake lying over the Weber land, and have acquiesced in Weber’s claim of exclusive right to the use thereof. Further, it appears that for the past fifteen years the plaintiff has made no objection to defendants’ obstructing the lower end of the lake and thereby denying plaintiff the possibility of access from the lake to Alton Lake.
“One of the maxims of equity is that equity aids the vigilant, not those who slumber on their rights. Here, plaintiff has acquiesced in defendants’ exclusive use for many years. ‘From acquiescence, the court may presume assent to the adverse right, and the consequent abandonment or waiver of the right sought to be enforced.’ 30 C.J.S., Equity, 117, citing Dexter v. Macdonald, 95 S.W. 359, 196 Mo. 373, where the court said:
“ ‘Acquiescence or delay for a length of time after a man is in a situation to enforce a right, and with full knowledge of the fact, is, in equity, cogent evidence of a waiver and abandonment of the right. Lapse of time, when it does not operate as a positive or statutory bar, operates in equity as an evidence of assent, acquiescense, or waiver.’
“Not only is plaintiff’s claim unpalat-ably stale, but it has tinge of avarice. He seeks now to taste the fruits of the defendants’ labor and investment, in a way that would work an irreparable injury to the defendants. His plea does not appeal to the conscience of a chancellor.
“Further, it appears that the ten-year statute of limitations would bar plaintiff’s recovery. Plaintiff cites the case of Frank Bros. v. Rose [Mo.], 301 S.W. 2d 806, to the effect that an easement by grant is not extinguished by ‘mere non-user’. That case does so hold, but recognizes that such rule does not apply to situations where a grantee has abandoned the easement. See 28 C.J.S., Easements 60, where the rule is stated:
“ ‘Conversely, an easement acquired by grant may be extinguished by nonuser under circumstances indicating an intention to abandon extending over a period of time which would have been sufficient to create a prescriptive right to the easement, or even for a less period.’
And, see Eureka [Real Estate & Investment] Co. v. Southern R. E. Co. [355 Mo. 1199], 200 S.W.2nd 328(1-3). ‘Abandonment’ is laboriously defined in Re Clark’s Estate [Mo.App.], 213 S. W.2d 645(2). It is composed of acts and intentions. Here, plaintiff acquired by grant an easement to use the ‘Weber portion’ of the lake. Then, for decades he not only failed to use that right, but denied Weber the reciprocal easement over the ‘Luesse portion’ of the lake. It follows that plaintiff has abandoned his easement for more than the statutory period.”

The evidence established that although the Webers and the Luesses may have had the right to use the entire surface of Weber Lake, they did not so use it, and, in fact, each owner recognized the right of the other to the exclusive use of the water over his own land. The situation existed since the enlargement of Weber Lake by the construction of the concrete and earthen work dam around 1908. And it furthermore appears that no question was raised about such recognition until the filing of the Sneed action in 1956 and at no time were any rights asserted by the Luesses against the Webers, claiming rights in the lake over the Weber property until the filing of the present action on October 24, 1958. Thus it appeal's that for some 50 years there was no disagreement or conflict between the riparian and underlying owners concerning the use of the lake.

There is nothing in the evidence adduced in the instant case which, in our opinion, alters the factual situation presented in the Sneed case regarding navigability. We are, therefore, constrained to follow the Sneed case and hold that Weber Lake is not a public highway and is not a navigable body of water in fact or in law. The mere fact that on occasions during the high water due to the overflow of the Mississippi and the Missouri Rivers boats were operated to and from the Mississippi River channel to the Luesse property passing over Weber Lake without remonstrance from the Webers creates no vested rights or privileges on the waters of Weber Lake antagonistic to whatever rights the Webers may have enjoyed.

The testimony of plaintiff that plaintiff and his father aided in the construction of the concrete dam to enlarge Weber Lake in 1908, in our opinion, only tends to establish acquiescence by the Luesses in the establishment of the barrier between their land and the Mississippi River.

The testimony in the instant case differs from that offered in the Sneed case only in respect to a showing that on occasions during flooding of the Mississippi and Missouri Rivers, when roads in the area were under water, motorboats had operated over Weber Lake from Portage des Sioux to the Luesse property for the transportation of individuals, supplies, and the mail. Such occasional use is not such as to establish Weber Lake as a navigable body of water. Greisinger v. Klinhart, Mo.App., 282 S.W. 473; Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17, 47 A.L.R.2d 370; Sneed v. Weber, Mo.App., 307 S.W.2d 681.

Plaintiff here is owner of the land underlying the waters of Weber Lake not owned by Webers, and his position differs from that of plaintiff in the Sneed case, who was not owner of any ground lying under or adjoining Weber Lake. Except for the construction of the pontoon bridge after the earthenwork at both ends of the concrete dam had washed out following the 1951 flood the physical situation at Weber Lake, save for the raising of pool stage by the installation of Alton Dam, has remained the same since about 1908 with no disagreement as between the respective owners of the land beneath concerning the exclusive use by each, or their invitees or guests, of the waters above, generally for the purpose of fishing, until the filing of the instant lawsuit in 1958. Nor did the owners of the Luesse property at any time complain or object to the construction and maintenance by the Webers of a fence across the lake separating the properties. We believe that this very unusual situation demonstrates that the use to which Weber Lake has been put for these many years dispels all reason for enjoining the maintenance of the pontoon bridge which, as did the concrete dam and the earthenwork ends thereof, join lands of the defendants located on the east and west sides of Weber Lake. We believe the evidence demonstrates complete acquiescence by plaintiff in the exclusive use by defendants of all waters of the lake within the boundaries of the defendants’ lands.

Acquiescence in an adverse right is an important element of laches. Where plaintiff has acquiesced for an unreasonable length of time in the assertion or operation of a right adverse to his own, equity will not enforce his claim. From acquiescence, the Court may presume assent to the adverse right, and the consequent abandonment or waiver of the right sought to be enforced. 30 C.J.S. Equity § 117, p. 539; Dexter v. Macdonald, 196 Mo. 373, 95 S.W. 359.

Being of the opinion that the plaintiff acquiesced in the exclusive use of the lake over the land of the Webers by the Webers and that such acquiescence bars him from asserting his right to injunctive relief by requiring the removal of the pontoon bridge erected by defendants, his claim for damages by reason of the maintenance of the pontoon bridge must likewise fail.

Plaintiff insists his rights to use the entire surface of Weber Lake arise from the fact that Weber Lake existed as a body of water at the time of and before separation of title from the common source in 1865 or 1868, and by reason thereof it was a right acquired by grant and not by prescription and that mere non-user will never bar the easement thus obtained. It does not appear from the record in this case that there was a body of water constituting a natural or artificial lake at the location at 'the time of separation of title from the common source. 'Plaintiff says a natural lake existed at the time his father acquired the property in 1906 which was connected by a ditch to Marias Temps Claire some two miles away. Reference is made in plaintiff’s testimony to one Kincaid digging a ditch draining Marias Temps Claire into Weber Lake. The time of this ditching is not shown. A lake was shown to exist in 1903 by Lawrence Weber’s testimony as well as by surveys made in the early 1900’s. This is not sufficient to establish an easement by grant to plaintiff in all the waters of Weber Lake. At most he has an easement by implication which, in our opinion, has been barred by laches as well as limitation.

In an equity case, the appellate court is not bound by the trial court’s findings. But the appellate court will defer somewhat to the rulings of the trial court where witnesses testify orally on questions of fact because of the opportunities of the trial court to see and hear the witnesses on the stand and to judge the testimony. McKinney v. Northcutt, 114 Mo.App. 146, 89 S.W. 351.

We are of the opinion that the findings of the trial court are correct and that they are grounded on proper equitable principles. This is not an action to maintain a right which plaintiff has claimed for years but it plainly appears that it is an attempt to subject Weber Lake to use as a passageway for motorboats proposed to be docked on plaintiff’s property, a use which would destroy fishing, the very use to which the lake has been put for many years by both plaintiff and the defendants and their guests and invitees.

The lake was created as a fishing resort by the construction of the concrete dam and earthenwork ends by the industry and 'expense of defendants and their predecessors in title. To permit plaintiff to destroy the use to which Weber Lake has been put for many years for his own benefit would be a gross miscarriage of justice.

The findings of the trial court and its judgment and decree are affirmed.

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

RUDDY, J., not participating.