*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- Hatcher & 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 sufficient 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 seen 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 substance. 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 action 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 testified 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 stairway 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 proved. 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 which 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 reasonable 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 de 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 between 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 There 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 decision 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 holds 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 attempted 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 permitted 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, 166 P. 2d 434. they they store, heard that therein, someone had fallen respectfully submit newspaper, Ardmoreite, of that eve- case to en- sufficient ning following evening, or the disclosed jury. title the that Mrs. Maddox was the one who opinion majority from the dissent fell. The court made this statement: *5 sustaining the demurrer evi- of the defendant Reid. “By nature, reason of its the condi- tion testified to was admissible as tend- ing existing to show the condition fall, weight the time of the jury thereof was a SERVICE CO. v. PEER CITIES GAS along to be considered with the other OIL & CO. et al. LESS GAS pertinent thereto.” PHILLIPS PETROLEUM CO. v. STATE al. et anything I do believe there is distinguish that case from the one at Nos. 33006. 1950. Jan. bar, certainly, per if that case was Rehearing Denied March 1950. jury, mitted to to the the case at bar should be. This court has 220 P. permitting liberal cases to on similar es business tablishments. I call to Owen attention Kitterman, 178 Okla. 62 P. 2d 1193; Co. Gran Halliburton-Abbott berry, 505;