*1 they appertain solely and therefore father, right, his natural cus- tody against her of the mother and adoptive father. husband who claims In the trial its decree court did to decide the of law undertake issues adoption proceeding and
raised over the apparent that, writ, denying it is the court was actuated what was in-
considered welfare and best
terest of the child. of what view has been said an clear case is into resolved parents
issue divorced over custody parte their child. In Ex Miller, P. 2d involved, we where a like issue was
held: “The welfare of a minor is the child
paramount consideration, cir- custody pertaining cumstances to its Tay- Hаtcher & Hatcher and Baxter may always inquired court into lor, City, all of Oklahoma competent jurisdiction, or- in error. relating der thereto be made when- , de- ever the child’s best interests Monnet, Hayes Brown, & of Oklahoma mand.” City, for defendant in error First Na- Corporation. Building, tional Greening, And in Clark v. we held that Rainey, Flynn, Green & Anderson, of finding trial such situation City, Oklahoma for defendant in error it is court will be disturbed unless F. E. Reid. clearly weight against of the evi- contrary WELCH, or is law. brought J. Donald C. Tweed against this action the First National We examined the have Building Corporation, corporation, find court the trial Reid, individual, seeking F. E. an dam- weight against is not of the evi- ages personal sustained dence. flight when he fell down a Judgment affirmed. of stairs between the 29th and 30th Building floors of the First National V.C.J., DAVISON, C.J., ARNOLD, City, Oklahoma Oklahoma. The CORN, HALLEY, LUTTRELL, alleged negligence in the failure JJ., O’NEAL, concur. maintain defendants in a safe condition. TWEED v. FIRST NATIONAL Building Corpora- The First National BLDG. CORP. et al. is the owner the First National May 2, 33560. No. 1950. Building. It leased the entire 30th floor P. building of to F. E. Reid who there operated public dining and entertain-
ment establishment known as the Rain- bow Room. gave testimony Plaintiff of attend- ance at a held the Rainbow departure therefrom;
Room and of his
*2
I
the
en-
and as went around the
that he started toward
elevator
elevator or
the,
going
around to
or
to
back
porter
the
on
trance
the 30th floor and observed
party,
there,
there
awas
colored
running,
not
and
the
was
that
elevator
mop
and I told him that he should
stairway
leading
the
to
then went
steps
done,
those
or have it
on account
company
with sev-
29th floor
the
might
of someone
hurt
themselves.”
persons.
of
Persons were in front
eral
Concerning his
and
him.
him
behind
testimony
At the
the
conclusion of all
he stated:
further movements
plaintiff,
and evidence offered
the
the trial court sustained demurrers
hallway
through
“I walked on
the
the evidence and
was entered
steps,
about
down the
and
and started
the secon
plaintiff
nothing.
that
take
d
step,
somewhere
or
third
just
say
there,
for sure
and I wouldn’t
plaintiff
The
contends
the evidence
slipped
exactly
and lost
one, I
which
prima
sufficiеnt
establish
facie
my
grabbed
the rail
balance, and
for
negligence
of
case
the case
get it; and
fell head
ing, and I
I
didn’t
jury.
should have been submitted to the
right
steps.
. . .”
down the
first
plaintiff
slipped
The fact
that
and
A
the
tes-
witness called
stairway
foreign
fell on the
and
12:30 and 1:00
tified that
steps
substance was sеen on the
some
party,
night
he
the
of the
o’clock on
plaintiff’s
30 minutes
before
fall are
plaintiff,
including
had
others,
the
and
principal
proof
the
circumstances
stairway.
The wit-
the
started down
negligence,
relied on to establish
and
stated:
ness
injury.
the
caused
step
possibly
taken,
a third
“I had
There
is no more than an inference
my
hit
left
I
some force
when
shoulder,
felt
plaintiff’s
fall
at or
commenced
grabbed
I
for whoever
and
the
about
on the stairs where
coming
was,
it seemed
be
and
formerly
the witness had
noticed some
stop them;
force
couldn’t
with such
well,
foreign substancе.
Tweed
it was Mr.
I later
learned
possibly
for
onto his arm
and I held
a
Plaintiff directs attention to the rule
my
couple
steps,
lost
when
of
syllabus
Covington
of
stated
momentarily
released
balance
Stogner,
Co. et
Coal Products
al. v.
him,
on
my
he
went
hold on
but
35, 72
2d
P.
491:
bottom, as I learned.”
the
damages
“In
civil aсtion
plain-
by the
Another witness called
personal
all
re-
the
is
behind
testified that he was
tiff
quired to do in order
to establish his
stairs
as the
descended
appear
to make it
case is
be more
fall.
and saw
probable
injury
came in whole
negli-
part
or
from the
defendant’s
concerning an
tеstified
Two witnesses
gence
cause,
than from
other
and
cir-
stairway prior to the
experience
on
may
fact
be established
accident,
or
plaintiff’s
“at round 12:00
reason-
cumstantial
evidence
Concerning
and 12:00.”
between 11:45
may
inference that
there-
able
from.”
be drawn
time,
of
stairwаy
one
at such
some-
witnesses
stated
presupposes
cited rule
steps
or
thing
about
second
negligence.
of
step.
of
same time
As
third
persons accom-
stated:
noted that
other witness
is
occasion the
immediately
preceding
or
panying
or
steps going down,
“Well,
stairway
following
plaintiff on the
scattered
there was
steps,
concerning
gave
con-
no
it had
I couldn’t
tell whether
steps.
mere fact
dition of the
dropped, or someone had become
fell,
in the absence
railing,
ill,
I held on the
showing an unsafe condi-
of then,
falling;
when
and for fear
I came back
of the
time
thing,
I did the same
may
negli-
place,
presumption
fact.
If it
no
to establish this
raises
gence
or
from
the owner
be inferred
the circumstances
may
premises.
proof
slick,
Persons
then to
lessee
slip
stairways
plaintiff’s
from
and fall on
var-
find a causal
relation with
causes,
unknown,
injury
known or
ious
inference
of fact must
may
the defendants
not have
of a
inference.
made
basis
further
stairway.
cleaned the
The doctrine
from
An inference drawn
circumstances
only appli-
ipsa loquitur which
res
proof may
itself be treated
thing
speaks of
cable when the
shown
proof
as a circumstance
basis
merely
hap-
negligence,
of the
inference. To
an in-
of a further
add
pening
accident,
apply.
does not
inference
ference to an
to arrive at
depart
from the
conclusion is
evi-
foreign
The fact that a
substance was
*3
specu-
reach into the field of
dence and
place
stairway
at
on the
some 30
some
conjecture.
lation and
plaintiff’s
minutes
use of
before
Ferry,
of
105
case
Schaff v.
stairway,
and the fact
407,
259, 232 P.
it is said:
stairway,
and fell on the
proper
are circumstances
of
considera-
competent
prove negligence
“It
is
applies
to the
of
tion
any
by
fact,
other
circumstantial
of
whether
an unsafe
condition
evidence,
case,
but
in such
the circum-
reasonably
or did
was allowed to exist
stances must be such as
up to
to lead
and establish
used the
exist
the time
provеd.
Ry.
sought
M. K. & T.
to be
stairway,
whether
condition
and
such
(Tex.
App)
Co.
Greenwood
Civ.
plaintiff’s
injury,
the cause of the
elementary
S. W. 810.
an
is
law
here
is not such connection
be-
but there
of fact cannot
based
inference
evidentiary
would
these
facts as
tween
inference;
presump-
on another
tion cannot be based
that a
jury
properly
de-
permit a court or
pre-
on another
questions
in the affirmative.
cide these
sumption. No inference
of fact or of
from
law
reliable
is drawn
is
Friddle, 189 Okla.
In Lowden v.
premises which are uncertain. When-
the court said:
relied
ever circumstantial
is
upon
prove
fact,
the circumstances
by
pointed
in
out
this court
“As
proved
and not
themselves
must be
Gypsy
Ginn,
Oil Co.
presumed.
Ross,
As stated in U. S. v.
discussing
of
in
inferences
(quoting
23 L.
U. S.
Ed.
negligence
connection,
or causal
an in-
p. 80):
from Starkie on Ev.
negligence or causal connec-
ference of
“
something
tion must
be based
place,
very
‘In the first
as the
foun
conjec-
speculation or
more than mere
dation of indirect
evidence is the es
ture,
to show
is not sufficient
from
of one or more facts
tablishment
of
circumstances
consistent
state
sought
inference
is
to be
whiсh the
indicating
possibility
a mere
with or
requires
made,
lat
the law
possibilities
equal
other
and
leave
ter
established
direct evi
should be
theory to be
force and reason. The
adopted
they
very
dence as if
were the
facts
”
probable
the more
must be
issue.’
adopted
more
rеasonable
to be
and
there said:
It is also
theory
The
can-
from the evidence.
“
is
the element
itself
furnish
requires
open,
an
visible
‘The law
theory
missing
evidence.
principal
and
connection between
evidentiary
applied to evidence.”
must be
deductions
facts
permit
them,
a dе
from
and does not
presence
herein,
Obviously,
n
infer
on remote
to be made
cisio
ences. Best
foreign
at the time
matter on
presump
A
on Ev. 95.
is an evi-
their use
to make is not
which the
finding
dentiary
to a
fact essential
not,
proof;
and it is
circumstance
negligence
negligence
legitimate
therefore,
foundation
”
injury.
presumption.’
no direct evi-
There was
caused
only
case,
go
floor,
Under the
in this
vators did
to the
30th
by conjecture
speculation
could a
the customers had to
down to the
get
conclusion be reached that
29th floor
stairs
on the
On
elevator.
particular
were
evening,
unsafe at
the time
of their use
about
the defendant and at the
of his
o’clock two ladies who
fall,
or that
act or failure of
with the
de-
had occasion
proximate
room,
fendants to
act was
cause
the ladies’ rest
located
plaintiff’s
injuries.
landing
on the
bеtween the 30th and the
floors,
they
29th
when
started down
Evidence of the facts which consti-
stairway they
slippery
found a
sub-
negligence
tute acts of
such
undoubtedly
steps.
stance,
vomit, injury
resulted
to the
quote
from the evidence of the wit-
recovery by
is essential
to a
ness Julia Welch:
plaintiff.
being
Therе
no such evi-
dence,
properly
“Well,
steps going down,
the trial court
sustain-
scattered
ed the demurrers.
steps,
I couldn’t
tell whether
it had
is affirmed.
dropped, or
someone had become
ill,
held on to the
the rail-
DAVISON, C.J.,
CORN,
GIB-
ing,
falling,
fear of
and then
SON, LUTTRELL,
JOHNSON, and O’-
back,
thing,
when I came
and as I went around the
around to
party,
did
same
NEAL, JJ.,
J.,
HALLEY,
concur.
con-
elevator,
part
part.
curs in
and dissents in
going
the,
back
—and
porter
there,
there was a colored
HALLEY,
(concurring
J.
mop
and I told him that he should
those
dissenting
part).
I concur
*4
steps
done,
or have it
on account of
majority
opinion insofar as it sustains
might
someone
hurt
themselves.”
the demurrer
to the evidence on behalf
I also set out
the
on this
evidence
Building Corpora-
of the First National
point of Mrs. Anita McDermott:
doing
tion.
I dissent
from its so
as
Reid,
the
F.
defendant
E.
the owner
“When I started down the
I
operator
of the Rainbow Room.
something
noticed that
there was
on
steps
the second or
third
my opinion,
the writer of the ma-
step,
I
and made the remark to Mrs.
jority opinion
impor-
has overlooked
Welch,— (interrupted). Mr. Brown: Ob-
case,
tant
evidence
in this
and also
ject
hearsay.
to the remark
disregarded
previous
has
a
decisiоn of
Q.
Yes;
Court:
sustained.
You did ob-
this court on a similar
state of facts.
steps?
Yes;
serve
A.
Q.
The Rainbow Room
you
is situated in the
I did.
And
went on
A.
down?
down,
I went on
City,
top
heart of
held to the handle.
Oklahoma
at
Q. Now,
you
at about what
time would
Building,
the First National
and it
say that was? A. That was about
a
uncontroverted
that
it hоlds itself out
quarter
twelve; well,
purpose
furnishing
for the
food to
quarter
to twelve and twelve o’clock.”
customers,
its
and also furnishes
set-
ups
for drinks and has a
where
plaintiff
of the
showed
patrons may
par-
its
dance. On this
that when he left at about
there
12:30
evening
ticular
on which the
sign directing people
awas
down
injured,
employees
was
who worked
floor,
to the 29th
and that
department
in the same
with him at when he reached about
or
second
having
Tinker Field were
an office
step,
third
he
and lost his bal-
party,
forty
fifty
of his friends
ance and fell head-first down the stair-
were
attendance
way.
Harry
The witness
Johnson testi-
particular
night.
that
It
is understood
possibly
fied that he had taken
three
they
enjoy
went
there to
step
them-
plain-
down the stairs when the
good
selves
have
time. The
tiff,
directly
cus-
him,
who was
behind
transported
were
tomers
to the 30th
shoulder,
struck his left
and that
12:30,
floor
elevators. After
аttempted
the ele-
witness
to arrest
Safeway
Whitehead,
fall
tiff’s
but was
Stores
unable to do so. In
v.
Okla.
my opinion,
464,
evidence is sufficient-
P. 2d 194.
ly
definite
establish
long
It has
been the rule in this state
very spot
fell at
that a demurrer
ad-
evidence
lady
where the two
witnesses
mits all
the facts which the evidence
slippery
testified there was a
substance
slightest degree
prove,
tends to
not more than 45 minutes before.
all
inferences
conclusions
would be reasonable for a
to infer
reasonably
logically
which
slippery
existing
condition
therefrom,
drawn
and it is error to sus-
up
minutes before continued
to the time
tain such a demurrer unless there is an
fell.
proof tending
entire absence of
to show
right
Curry,
to recover. See Davis v.
just
The facts
in this case are
32,
186;
192 Okla.
133 P. 2d
Criterion
strong as the facts in
H.
S.
Kress &
Corp.
Starns,
624,
Theatre
v.
194 Okla.
Maddox,
Co. v.
201 Okla.
203 P. 2d
92; Nelson, Adm’r,
154 P. 2d
Wasteka
v.
8, 1949,
decided March
where
637;
Co.,
Oil
196 Okla.
165 P. 2d
permittеd
against
verdict was
to stand
Co.,
Oil &
Adams v. Stanolind
Gas
Kress & Co. for
sustained
526; Campbell
Okla.
upon
a fall
the floor of a retail
store
Peery,
186 Okla.
96 P.
case,
Ardmore.
In that
the evidence
previous
condition of
floor
many
We
held
times that where
have
Henry,
was
Mr. and Mrs.
who
might
men
reasonable
differ as
they
testified
were in the store
in-
facts
established
and from the
during
August
the latter
therefrom,
ference
drawn
to be
heavily oiled,
the floor
fact,
was
is one
oil,
pud-
covered with
and there were
jury. City
Smith,
of Enid v.
167 Okla.
floor;
Negro
dles of oil on the
that a
765;
Bernhardt,
381, 29 P. 2d
Wisdom v.
boy
spreading
the oil out with a
Casualty
679;
385, 40
apparatus;
kind of
that on the same
Exchange
Reciprocal
Sutfin,
day, and not more than an hour after
567,