author: G. DERK GREEN, Special Commissioner.

text:
    GASEN’S DRUG STORES, INC., Plaintiff-Appellant, v. JONES ENTERPRISES, INC., et al., Defendants-Respondents.
    No. 31387.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.

      .Alfred W. Petchaft, Robert J. Schaap, St. Louis, for plaintiff-appellant.
    Murphy & Roche, John T. Murphy, Jr., St. Louis, Ziercher, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, for defendants-respondents.
   G. DERK GREEN, Special Commissioner.

This is an appeal from a Summary Judgment rendered in favor of defendants. For a proper consideration of the questions raised by the parties, it is necessary to set out in some detail the allegations of the pleadings and the contents of the affidavits, depositions and exhibits submitted in the presentation of the Motions for Summary Judgment.

Plaintiff’s Second Amended Petition attempts to state three causes of action and is divided into four sections designated by Roman Numerals I, II, III and IV. Section I sets out the corporate character of plaintiff, defendant Jones Enterprises, Inc., defendant Jones Development, Inc., defendant Metro Construction, Inc., and defendant Katz Drug Company; that Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones are the officers and stockholders of all the outstanding capital stock in Jones Enterprises, Inc., and Jones Development, Inc.; that defendants Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, are officers and stockholders of all the outstanding capital stock of Metro Construction, Inc. and that all are residents of the County of St. Louis.

In Section II, in what appears to be the first count or first cause of action, it is alleged that in June, 1955, Plaintiff entered into a lease with Jones Enterprises for use of a storeroom “ * * * to form a part of the Shopping Center to be known as FLORISSANT MEADOWS SHOPPING CENTER, located at the intersection of Lindsay Lane and Highway #140, in the County of St. Louis, State of Missouri, more particularly described and designated by its legal description as follows: * * * ” with the tract described by metes and bounds, which tract will hereinafter be referred to as Tract No. 1. The lease provided that it was for “ * * * the purpose of dispensing, selling, storing and displaying drugs and other items commonly sold in a Gasen Drug Store.” The lease provided for the maintenance of a parking lot “ * * for the benefit of the SHOPPING CENTER generally and for the benefit of the lessee * * *.”

The clause that affords the primary basis for the cause of action here attempted to be stated is as follows: “Lessor agrees that it will not lease or permit to be used any property owned or controlled' by it, directly or indirectly in the SHOPPING CENTER described above, for the purpose of operation of a pharmacy or ‘Drug Store’ as that term is commonly understood.”

Plaintiff alleges that although the stock of defendant Metro Construction Company, Inc. is in the name of Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, said corporation is “* * * managed and directed by Adam Henry Jones, Jr. as a part of and in conjunction with the real estate and related business operations of Jones Enterprises, Inc. and Jones Development, Inc. Said defendant Metro Construction Co., Inc., is in reality a part of the family business enterprises of the said Adam Henry Jones, Jr. and his brothers and sister, Kendrick A. Jones, Richard F. Jones, and Kathleen M. Jones, and is operated by Adam Henry Jones, Jr. for the benefit of said family enterprise * * It is alleged that these individual defendants, acting for themselves and the defendant corporations, Jones Enterprises arid Jones Development, and with knowledge of the terms of plaintiff’s lease, caused Metro Construction Company to be formed and to take title to an additional tract of real estate directly adjacent to and in extension of said FLORISSANT MEADOWS SHOPPING CENTER, which tract will hereinafter be referred to as Tract No. 2; that the additional tract was developed as a continuous and inseparable part of the aforesaid FLORISSANT MEADOWS SHOPPING CENTER with common continuous frontage. It is alleged that the defendants “ * * * acting individually and through said Metro Construction Co., Inc. * * * ” entered into a lease with defendant Katz Drug Company for the operation of a drug store in Tract No. 2 in violation of the contract with plaintiff. Plaintiff alleges that defendant Katz Drug Company had actual knowledge of plaintiff’s lease and of its terms prior to the making of the lease between Katz and Metro Construction Company.

In Section III of the petition, plaintiff “[f]or its second cause of action * * *” refers to and incorporates therein allegations contained in the preceding part of the petition, alleging further that if it should be required to proceed by an action of law, the plaintiff would be forced to file a multiplicity of suits and plaintiff is therefore entitled to invoke the aid of the Court of Equity to avoid the multiplicity of suits.

In Section IV, the plaintiff “[f]or its third cause of action * * * ” refers to and incorporates pertinent parts of the preceding portion of the petition and refers to the clause in plaintiff’s lease providing for maintenance of a parking lot for the benefit of plaintiff and alleges that this clause has been violated by defendants having entered into an agreement referred to as “a parking privilege agreement,” whereby it was provided that there should always be free interchange of parking privileges throughout the two tracts and that there should be no barriers or obstructions to interfere, with free access by persons in either tract to the other.

Plaintiff alleges that thereafter, and notwithstanding the provision of his lease, defendants Metro Construction Company, Inc., Jones Enterprises, Inc., Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones, Kathleen M. Jones and Mary Catherine Jones, acting through defendant Metro Construction Company, Inc., executed an agreement by which they secured to the defendant Katz Drug Company “ * * parking privileges on the portion of said Florissant Meadows Shopping Center to which plaintiff’s leased premises are appurtenant * * Plaintiff further alleges that the granting of this right to defendant Katz Drug Company is a wrongful and improper invasion of the customer-parking rights secured to plaintiff by the parking provision of plaintiff’s lease.

Plaintiff asks that the defendants other than Katz Drug Company be restrained and enjoined from permitting any other person, firm or corporation other than plaintiff to engage in the dispensing, storing and displaying of drugs and other items commonly sold in drug stores within the premises owned and controlled by the defendants or any one of them in the property described as being in the two tracts of land herein referred to.

Plaintiff further asks that the lease between defendants Metro Construction Company, Inc., and Katz Drug Company be rescinded or modified to preclude said Katz Drug Company from conducting a retail drug business or retail drug department in this area; that the parking privilege agreement between defendants whereby parking rights in Tract No. 1 are given to and for the benefit of Katz Drug Company be rescinded and canceled and that the matter be referred to a master or referee for accounting.

This Second Amended Petition was filed on January 17, 1962. On January 25, 1962, defendants Jones Enterprises, Inc., Jones Development, Inc., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones refiled to plaintiff’s Second Amended Petition their Motion for Summary Judgment, together with supporting affidavits and exhibits theretofore filed. Thereafter on January 26, 1962, defendants Metro Construction Company, Inc., Adam Henry Jones, Jr. and Mary Catherine Jones filed their Motion for Summary Judgment, with supporting affidavits. Thereafter on February 16, 1962, defendants Metro Construction Company, Inc., Adam Henry Jones, Jr. and Mary Catherine Jones filed additional affidavits in support of their Motion for Summary Judgment. On February 21, 1962, defendant Katz Drug Company filed its Motion for Summary Judgment, with supporting affidavit. On August 13, 1962, the court entered its order sustaining the separate motions of the defendants for summary judgment.

In order to sustain the trial court’s judgment, it must appear from the pleadings, depositions, admissions and affidavits on file that there was no genuine issue as to any material fact and that the defendants were shown thereby by unassailable proof to be entitled to judgment as a matter of law. Supreme Court Rule 74.04, V.A. M.R.; Whitaker v. Coleman, 5 Cir., 115 F.2d 305; 5B C.J.S. Appeal and Error § 1794, Note 60.5; 4 C.J.S. Appeal and Error § 226; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458; Cooper v. Finke, Mo., 376 S.W.2d 225.

Considering first the third cause of action, plaintiff alleges a violation of the lease on the theory that defendants have contracted for the use of the parking area for the benefit of third persons for a purpose prohibited by the lease. It would appear from consideration of the petition and attached exhibits that lessor defendants provided for the use of this property, conced-edly within the original tract described in plaintiff’s lease, Tract No. 1, by defendant Katz Drug Company. This presents two issues: First, that this “parking privilege” agreement violates plaintiff’s lease by depriving plaintiff and its customers of full use of the parking area within Tract No. 1 and for which plaintiff contracted to pay upkeep and maintenance; second, that this “parking privilege” agreement violates the restrictive covenant of plaintiff’s lease by permitting a portion of the property described in Tract No. 1 to be used for the “ * * * operation of a pharmacy or ‘Drug Store’ as that term is commonly understood.”

The parking lot provision of plaintiff’s lease with Jones Enterprises, Inc. states that “[t]he lessor agrees to provide for the duration of the lease, for the benefit of the SHOPPING CENTER generally and for the benefit of the lessee, a parking lot provided with an all-weather surface. * * ” It also provides for the maintenance and lighting of said parking lot and the payment for these based upon the number of square feet in said SHOPPING CENTER occupied by the lessee. It also provides that the parking lot-building area ratio will never be less than three square feet of parking area for every square foot of building area.

From the pleadings, the contract and exhibits, it appears that parking space and parking privilege was an important part of plaintiff’s lease and of the other contracts made by defendants. It seems to be considered by the parties essential for the “ * * * operation of a pharmacy or ‘Drug Store’ as that term is commonly used.” If this is true, an issue is presented as to whether or not the parking privilege agreement was in violation of plaintiff’s contractual rights to have this parking space established and maintained for plaintiff’s benefit. Also, an issue was presented as to whether or not this “parking privilege” agreement providing for parking in Tract No. 1 by and for the benefit of defendant Katz Drug Company was in violation of the restrictive covenant against use of the property in this tract “ * * * for the purpose of operation of a ‘Drug Store’ * * A careful examination of the pleadings and exhibits does not reveal any proof that plaintiff’s position is not correct. In fact, these questions are ignored in all affidavits and exhibits filed by defendants. To require opposing affidavits or warrant summary judgment for failure to controvert, the supporting affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Supreme Court Rule 74.04(e). An issue is presented and should be submitted to the trier of the facts, and it was error to sustain Motion for Summary Judgment as to the third cause of action.

Defendant Katz Drug Company contends that its motion was properly sustained because it had no knowledge of any covenants restricting the use of the land described in its lease. To support this, Katz filed affidavit of David Blond, who says that he is executive vice-president of the Katz Drug Company and that prior to its lease with Metro Construction Company “ * * * said Katz Drug Company had no knowledge whatsoever concerning any covenants or agreements restricting the use of the land above described, and does not now have any such knowledge.” The land described and referred to in said affidavits is Tract No. 2. This does not deny knowledge of plaintiff’s lease, the terms thereof, or the restrictive covenants in question. It states a contention that the covenants did not restrict the use of the land in Tract No. 2, but it is not a statement of fact that would require counter affidavit or evidence. The Katz motion could not be sustained on this ground. Supreme Court Rule 74.04.

Considering the first and second causes of action stated in plaintiff’s petition, there appears to be no dispute with reference to the corporate status of plaintiff and of defendants Jones Enterprises, Inc., Jones Development, Inc., Metro Construction Co., Inc., and Katz Drug Company. It is alleged and not disputed' that defendants Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones are brothers and sister and the officers and stockholders of all the outstanding capital stock in Jones Enterprises, Inc. and Jones Development, Inc. and that defendants Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, are the officers and stockholders of all the outstanding capital stock in Metro Construction Co., Inc. There is no dispute as to the plaintiff’s lease, its execution and terms. Plaintiff alleges that although all of the stock of Metro Construction Co., Inc. is owned by Adam Henry Jones, Jr. and Mary Catherine Jones, his wife, it is in reality a part of the family business enterprises of the said Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones and is operated for the benefit of all of said brothers and sister named. Plaintiff undertakes thereby to state that Tract No. 1 and Tract No. 2 are owned or controlled by the same parties in interest although held in the names of the different corporations; that Tract No. 2 was acquired by the same ownership as Tract No. 1 for the purpose of developing it as an extension or part of the FLORISSANT MEADOWS SHOPPING CENTER mentioned in plaintiff’s lease. Plaintiff’s petition presents these issues: 1. Was Tract No. 2 owned or controlled by the same parties who owned Tract No. 1 and who entered into the contract with plaintiff containing the restrictive covenants. 2. Did plaintiff’s lease restrict the use of only the property described in Tract No. 1 or did it restrict the use of any property owned or controlled by the same lessor and forming a part of the FLORISSANT MEADOWS SHOPPING CENTER referred to in plaintiff’s lease although outside the boundaries of Tract No. 1. 3. If the first two issues are determined in the affirmative, was Tract No. 2 actually an extension of and an integral part of the FLORISSANT MEADOWS SHOPPING CENTER referred to in plaintiff’s lease, or was it a separate and distinct SHOPPING CENTER located adjacent to the one established on Tract No. 1. It might be more simply stated thus: Was the land leased to Katz Drug Company and the land leased to plaintiff owned or controlled by the same party or parties and was the land leased to Katz Drug Company “ * * * directly or indirectly in the SHOPPING CENTER * * * ” described in plaintiff’s lease.

In determining whether or not there is a genuine issue as to any material fact, the court must consider all of the pleadings, depositions and admissions on file, together with the affidavits, if any, filed by the parties. Supreme Court Rule 74.04; Cooper v. Finke, Mo., 376 S.W.2d 225. In doing this, the trial court and the appellate court must view the record in the light most favorable to the party against whom the judgment is rendered and the judgment cannot be sustained unless the prevailing parties are shown by unassailable proof to be entitled thereto as a matter of law. Supreme Court Rule 74.04; Cooper v. Finke, Mo., 376 S.W.2d 225; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 ; 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Sec. 1235, P. 138.

Defendants Metro Construction Co., Inc., Adam Henry Jones, Jr. and Mary Catherine Jones, in support of their Motion for Summary Judgment, filed the affidavit of Erwin Tzinberg, their attorney. This affidavit contains no pertinent fact that could be testified to by the witness which is not shown by the pleadings, but simply calls the attention of the court to a paragraph of the plaintiff’s Second Amended Petition which states that the store constructed by-defendant Metro Construction Co. is on “ * * * an additional tract of real estate * * * ” and that said store is in fact located on a tract of land other than described by metes and bounds in the lease to plaintiff.

Also filed therewith is the affidavit of Adam Henry Jones, Jr. This affidavit states that none of the defendants, excepting Adam Henry Jones, Jr. and Mary Catherine Jones, own or have any interest in the Metro Construction Co., Inc.; that said Metro Construction Co., Inc., is not and never has been a part of the Jones family enterprises, and that it was not formed and organized to acquire an additional tract of land adjacent to the FLORISSANT MEADOWS SHOPPING CENTER. These statements are in direct contravention of the allegations of the petition. It is noted, however, that this affidavit does not state that the Metro Construction Co., Inc. is not managed and operated for the benefit of all of the named individual defendants, and it does not attempt to state that the land owned by Metro Construction Co. and referred to as Tract No. 2 was not in fact a part of the FLORISSANT MEADOWS SHOPPING CENTER.

The affidavit of David Blond referred to above and which was filed with the Motion for Summary Judgment of the Katz Drug Company states no pertinent fact which, if true, would entitle that defendant to a judgment as a matter of law. This affidavit refers to its lease with Metro Construction Co., Inc., describes Tract No. 2 and states that prior to the time of the execution of the lease the Katz Drug Company had no knowledge concerning any covenants or agreements restricting the use of the land in Tract No. 2. It further states that the real estate in Tract No. 2 is not a part of the real estate mentioned in plaintiff’s Second Amended Petition, all of which appears from the petition itself.

To counter these affidavits, or to show that a genuine issue exists, the plaintiff asks the court to consider the plaintiff’s amended petition which is verified by William A. Baumgarth, vice-president of Gasen Drug Stores, Inc.; the deposition of Adam Henry Jones, Jr. filed herein, and the affidavit of Alfred W. Petchaft, plaintiff’s attorney, with the exhibits attached thereto. The verified First Amended Petition states that Metro Construction Co. is in reality a part of the family business enterprises of the individual defendants named and is operated for the benefit of said family enterprise and for the benefit of plaintiff’s lessor Jones Enterprises, Inc. It states that the activities of Metro Construction Co. were carried out by funds supplied by Jones Enterprises, Inc. and Jones Development, Inc. and that in applying for various building permits and in the building permits issued pursuant to such applications, defendants Adam Henry Jones, Jr., Kendrick A. Jones, Richard F. Jones and Kathleen M. Jones were listed and shown as the owners of Tract No. 2 as an addition to the FLORISSANT MEADOWS SHOPPING CENTER and referred to as the FLORISSANT MEADOWS SHOPPING CENTER.

The affidavit of Alfred W. Petchaft filed by plaintiff to controvert the defendant’s motions recited the affiant’s personal observation of the two tracts of land and attached photographs showing the parking lot of the FLORISSANT MEADOWS SHOPPING CENTER, the signs erected thereon and the location of various buildings in these two tracts of land, and stated that the two tracts constituted a single and unitary SHOPPING CENTER having a completely unobstructed unitary paved parking lot extending across the entire front thereof and that the entire area, both Tracts 1 and 2, was identified by large posts or pylons supporting a lighted sign reading “FLORISSANT MEADOWS SHOPPING CENTER”; that there had been numerous advertisements published by the defendant Katz Drug Company, designating its drug store on Tract No. 2 as being in the FLORISSANT MEADOWS SHOPPING CENTER, with said advertisements or copies thereof attached to and incorporated in the affidavit.

This affidavit further stated that the af-fiant had spent considerable time in this area and had repeatedly observed automobiles entering and driving through from one tract to the other and observed individuals walking from one tract to the other and that both tracts were as one SHOPPING CENTER. The photographs accompanying the affidavit support the statements made by the affiant concerning the signs, lighting and location of buildings. The advertisements in the St. Louis Post Dispatch submitted with this affidavit support the affidavit in that it reveals that the Katz Drug Company was advertised as being in the FLORISSANT MEADOWS SHOPPING CENTER and the map, or plat, shown in said advertisement emphasizes and points out this area.

In the deposition of Adam Henry Jones, Jr. filed herein, he testified that he is the vice-president of defendant Jones Enterprises; that Richard F. Jones is president of that company, and Kendrick A. Jones is another vice-president thereof. He states that he considers Jones Enterprises “ * * * as being a holding corporation * * * ” in that it owns and holds title to real estate and operates and manages such real estate. He states therein that Jones Development, Inc. is another corporation that does the leasing for these different projects and that he is president of that company; that the stock of Jones Enterprises is owned by the same persons who own the stock in the Jones Development, Inc. He is not sure whether Jones Development, Inc. was organized at the time of the execution of plaintiff’s lease or whether he acted as an officer of Jones Enterprises entirely in this transaction. His testimony was that Jones Enterprises owned “ * * * that entire tract of land from St. Dennis Lane running” south along Highway 140 toward the City of Hazel-wood; that the northernmost boundary of FLORISSANT MEADOWS SHOPPING CENTER is St. Dennis Lane and the western boundary is Highway 140 and that it runs south from St. Dennis approximately 1200 feet and that the entire area is the FLORISSANT MEADOWS SHOPPING CENTER; that neither Jones Enterprises nor Jones Development has entered into any lease with the Katz Drug Company, but that the Metro Construction Co. with which he is associated had entered into such a lease, and that it was signed sometime around September, 1960. He’states that he is the president of the Metro Construction Co. and his wife is vice-president and that the two of them own all of the stock of said company and when asked who the other officers of the company were, he said, “I frankly am not too familiar with the other setup in there.” That the property on which the Katz Drug Company’s lease applies is owned by the Metro Construction Co.; that this property is contiguous to Tract No. 1 upon which plaintiff’s lease applies; that there is no intervening property and the south line of Tract No. 1 abuts directly upon the property owned by Metro Construction Co. and referred to as Tract No. 2; that there will be no fence or barrier between the two properties and never will be; that the parking lot on Tract No. 1 will continue uninterruptedly into the parking lot on the property owned by the Metro Construction Co. — Tract No. 2 — and there will be no line of demarcation between the two lots. He refers to the Katz Drug Store as being in the FLORISSANT SHOPPING CENTER and says that the word “MEADOWS” has been left out because it is in Florissant; that the FLORIS-SANT MEADOWS SHOPPING CENTER is also in Florissant; that the drug store building being erected for and leased to Katz is directly adjacent to the Tract No. 1 and that the Katz Drug Store will be the major part of the buildings erected and occupied on Tract No. 2. He testifies that there is a common parking agreement between Metro Construction Co. and Jones Enterprises, agreeing to a common parking lot.

Identified and offered in evidence in connection with this deposition is an advertisement referred to as a four-page piece of literature that witness states was sent out by the Jones Development, Inc., advertising the leasing of space in the FLOR-ISSANT MEADOWS SHOPPING CENTER. Witness had authorized and approved the copy showing a map or drawing of the area, with a circle drawn around what is designated as the SHOPPING CENTER. The witness was shown a news story in the St. Louis Post Dispatch on Friday, September 9, 1960, with reference to the Katz Drug Company store but stated that he had nothing to do with the news release or the article. Witness was handed what was called “another publication” announcing the signing of the lease with the Katz Drug Company, in which reference was made to the property as in the FLOR-ISSANT MEADOWS SHOPPING CENTER, but stated that he knew nothing about this news release. He stated that there had been no advertisements concerning the new shopping development owned and operated by Metro Construction Co. and that he had no descriptive literature concerning it. He stated that the property in Tract No. 2 had only been recently acquired from its former owners and there had been no negotiations with the owners for the property prior to the year preceding. He says that the title to the property in Tract No. 2 was acquired from the former owner by outright purchase in the name of Metro Construction Co.; that it was bought for cash with funds from the Metro Construction Co., but that the money was borrowed from Jones Enterprises, Inc.; that Metro Construction Co. borrowed money from Jones Enterprises, Inc. to finance the purchase of Tract No. 2; that there was no writing to evidence the transaction; that it was a purely verbal arrangement and that approximately $100,000 was put up by Jones Enterprises for this purpose; that there was no recorded mortgage securing the loan; that no note had been signed, but that a note would be signed upon the basis of the agreement that had been previously made.

Taken at the same time and also filed herein was the deposition of Kendrick Jones, one of the defendants, and therein he stated that he was one of the vice-presidents, apparently referring to defendant Jones Enterprises, although not specifically stating which company he meant. He stated that generally he had the same understanding of the facts to which his brother, Adam Henry Jones, had testified; that he was in no way connected with Metro Construction Co.; that he did not know where the offices of the Metro Construction Co. were located; that the offices of Jones Enterprises were located at 580 Lindbergh and the offices of Jones Development Co. were at the same place, and that his brother, Adam Henry Jones, had desk space and secretarial assistance at that same address; that he did not know where the files and records of Metro Construction Co. were kept; that he was familiar with the loan transaction between Jones Enterprises and Metro Construction Co. and approved of it. Adam Henry Jones further testified in the deposition that the offices of Metro Construction Co. were at 131 Frontenac Forest, St. Louis 31, Missouri, which was at the home of the witness, Adam Henry Jones, and that he conducted all business of Metro Construction Co. out of his home.

The advertisement of the Katz Drug Store in the St. Louis Post Dispatch of August 18, 1961, referring to its new store at 460 N. Lindbergh, states that it is “* * * in the FLORISSANTMEADOWS SHOPPING CENTER,” and also calls attention to the fact that there is “parking for over 1500 cars.” Nothing in the affidavits, depositions or exhibits filed indicates with certainty whether this 1500-car parking space is limited to Tract No. 2 or includes the parking facilities of both Tract No. 1 and 2. It would logically appear from the plat or drawing filed as an exhibit that accommodation for this number of cars would require a parking space larger than shown in Plat No. 2. From the pleadings, affidavits, depositions, admissions and exhibits, the court must determine whether or not there is any genuine issue as to any material fact, and whether or not defendants are entitled to a judgment as a matter of law. Before the summary judgment can be sustained, it must appear by unassailable proof that the defendants are so entitled. The Appellate Court, as well as the trial court, must view the record in the light most favorable to the party against whom the judgment is rendered. Great care should be exercised in utilizing this procedure. The burden is upon the person seeking the summary judgment to establish the facts to show that there is no genuine issue for trial.

According to the pleadings, depositions and affidavits on file, the named individual defendants are brothers and sister and their respective spouses. It is to be concluded that these defendants were engaged in various business ventures which are properly referred to as a family enterprise. All of these defendants are interested in, and hold stock in, at least two of the defendant corporations and all have an interest in the third corporation, Metro Construction Co., whether owning stock in said company or not. It would appear from the affidavits, allegations and depositions that the capital for this company was advanced from funds in which all of the family had an interest and in circumstances justifying further development of the allegation that the Metro Construction Co. was, in fact, a part of the family enterprise and that all of the individual defendants had an interest in said company.

Certainly these affidavits, exhibits and depositions are not sufficient to establish as a matter of law that there is no issue as to the ownership or control of Tract No. 2. These affidavits, exhibits and depositions do not establish as a matter of law that the property described in Tract No. 2 is not now a part of what is referred to as FLORISSANT MEADOWS SHOPPING CENTER and within the meaning of the plaintiff’s lease restricting the use of any property owned or controlled by the lessor “ * * * directly or indirectly in the SHOPPING CENTER described above He * H*19

Plaintiff contends that the punctuation of this clause of the lease should be interpreted to mean that the restriction applies to any property owned or controlled by the lessor whether said property is directly in the shopping center, as described by metes and bounds in the plaintiff’s lease, or indirectly in said shopping center by virtue of being within the area developed as the FLORISSANT MEADOWS SHOPPING CENTER, but outside of the property described by metes and bounds in Tract No. 1. The affidavits, depositions and exhibits on file do not necessarily resolve this question against the plaintiffs. The clause is subject to the interpretation that plaintiff gives it and the question should be developed after issue is joined by pleading, and the finding should be made thereon by the trial court after hearing all of the evidence.

From the record before this court, the defendants have not demonstrated by “unassailable proof” that plaintiff is not entitled to some relief. It has not been established that there is no genuine issue as to any material fact or that defendants are entitled to a judgment as a matter of law. For the reasons stated, the judgment of the trial court sustaining the motions filed by defendants and entering summary judgment in favor of defendants should be reversed and the cause should be remanded. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by GREEN, Special Commissioner, is adopted as the opinion of the Court. The judgment is reversed and the cause remanded.

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


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Vincent R. GINTER, Plaintiff-Appellant, v. FREUND BAKING COMPANY, Employer, and Queen Insurance Company of America, Insurer, Defendants-Respondents.
    No. 31971.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.
    Gordon W. Neilson, St. Louis, for plaintiff-appellant.
    J. J. Zych, Albert I. Graff, Malcolm I. Frank, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

This is a claim under the Missouri Workmen’s Compensation Law. The Referee found in favor of claimant, but on appeal by the employer and insurer the Industrial Commission reversed that finding and made a final award denying compensation. Claimant’s appeal to the St. Louis Circuit Court was unavailing, and he appealed here.

The claimant alleged in his claim that he was injured on August 20, 1962 when “While working in the course and scope of my employment, I stooped and reached way down and was attempting to lift a large box (containing an assortment of bakery items) and while so doing, I got into an awkward, unusual and abnormal position and did then and there suddenly experience and suffer a sudden, unusual and abnormal strain and sprain of my back, thereby injuring me.” The employer and insurer in their answer denied that the claimant suffered an accident within the meaning of the Law. At the start of the hearing before the Referee it was agreed by both sides that on August 20, 1962 the Freund Baking Company was an employer operating under the provisions of the Workmen’s Compensation Law; that its liability was fully insured by the Queen Insurance Company of America; that claimant on that date was an employee of Freund Baking, and was working under the Law; that notice was given and the claim filed within the prescribed time; that claimant’s average weekly wages were $112; and that compensation of $230.72 had been paid, and medical aid furnished. Thus the only issues remaining for trial were whether or not the claimant sustained an accident arising out of and in the course of his employment within the meaning of the Workmen’s Compensation Law; and, if so, the nature and extent of his permanent partial disability.

On his own behalf claimant testified that he was employed by Freund Baking on August 20, 1962 as a “ * * * route runner or a swing man,” and explained that he relieved each of the regular delivery drivers on five routes one day during the week. The bread and other bakery products ordered by the approximately 70 customers on his route were placed in separate cardboard boxes (whether by claimant or other employees was not stated) and loaded by claimant into his truck. • On the day in question he checked in about 4:00 A.M. as usual, and began to load his 'tru'ck. According to claimant, the area in which he loaded was normally about 15 feet square, but on that day, because building material for construction work was stored in the area, its size was reduced. Claimant did not give the extent of the reduction but did say that while loading he repeatedly had to move the merchandise in order to let others get by. As to the occurrence in dispute claimant testified;

“ * * * I stooped over, was in an abnormal position to pick this box up, I twisted to the right to pick the box up because of the merchandise all around me, to pick it up and put it into the truck, and as I did I got the box I’d say no more than a couple inches off the ground and something snapped and I collapsed and fell to the floor. * ifi * »

At another point in his direct examination he described his movements as “* * * I bent to the side and stooped over * * ” to pick up the box. Claimant said that after remaining prone for about 10 minutes because of the pain he was helped to his feet by other employees and sat on the back of the truck for a few more minutes. He then made all of the deliveries on his route, and returned about noontime. When he complained of the pain in his back his supervisor directed him to go to Dr. J. G. Probstein, who in turn sent him to Jewish Hospital. He remained in the hospital for 21 days.

In its final award denying compensation the Industrial Commission made the following finding:

“We find from all of the credible evidence that the employee, Vincent R. Ginter, did not sustain an accident on or about August 20, 1962, within the meaning of the Missouri Workmen’s Compensation Law, as alleged. We believe and find that there was no unexpected or unforseen event happening suddenly and violently as required by our statute. The injury in and of itself is not an accident. Cf. Errante vs. Fisher Body Division, General Motors Corp., S.L.C.A. No. 31,503, (not yet reported) [Mo.App., 374 S.W.2d 521].
“Employee’s counsel would have us put great emphasis on claimant’s testimony that he ‘twisted’ to pick up a box. Without belaboring the point, we are convinced that claimant used this term in the context of ‘turned’ rather than in the sense of torsional stress.
“Compensation, therefore, must be and the same is hereby denied.”

In his brief claimant asserts that his foregoing testimony was not contradicted by a single eyewitness, implies that the Commission was bound to accept it, and argues that the Industrial Commission’s finding amounted to a mere legal conclusion and as such is subject to review and correction, or reversal.

Reviews of this nature are governed by the rule that neither the Circuit Court nor the appellate courts may substitute their judgment for that of the Industrial Commission. We are obliged, under the Constitution of Missouri of 1945, Art. V, Sec. 22, V.A.M.S., only to determine if the decision is authorized by law and if the findings are supported by competent and substantial evidence upon the whole record. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623; Errante v. Fisher Body Div. General Motors Corp., Mo.App., 374 S.W.2d 521. And in reviewing the action of the Commission we consider the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award. Snowbarger v. M. F. A. Central Co-Operative, Mo., 349 S.W.2d 224; Brown v. Anthony Mfg. Co., Mo., 311 S.W.2d 23; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136.

We cannot agree that the award was predicated as a matter of law upon undisputed or admitted facts. As was said in Snowbarger v. M. F. A. Central Co-Operative, Mo., 349 S.W.2d 224, 225, where, as here, the claimant’s case rested on the testimony of a single witness (defendant’s acting manager):

“ * * * Of course, the commission may not arbitrarily ignore competent, substantial and undisputed evidence and base its findings upon conjecture or personal opinion. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, 880. But, on the other hand, the commission cannot be required to accept as true the testimony of claimant’s witness if the commission, in exercising its power and duty to determine the facts, does not believe the testimony of that witness. Smith v. Smith et al., Mo., 237 S.W.2d 84, 89; Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105, 108. * * * ”

The decisive question for the Commission in this proceeding was whether the claimant had sustained an accident within the meaning of the Workmen’s Compensation Law. The injury, in and of itself, of course, was not an accident within the meaning of the Law. State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40; Smith v. General Motors Corp., Fisher Body, St. Louis Div., Mo., 189 S.W.2d 259; Errante v. Fisher Body Div., General Motors Corp., Mo.App., 374 S.W.2d 521. In deciding the question presented the Commission did not have to accept the testimony of claimant if there was a substantial basis from all the evidence for rejecting or disbelieving it. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136. Contrary to what claimant appears to believe, the Commission passes upon the credibility of the witness and is not compelled to accept the uncontradicted but disputed testimony of the witness if it does not believe it. Snowbarger v. M. F. A. Central Co-Operative, supra; Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105; Michler v. Krey Packing Co., supra; Smith v. Smith, Mo., 237 S.W.2d 84.

From the finding made it is apparent that the Commission rejected the claimant’s version of the occurrence.- After a careful consideration of the whole record, including the legitimate inferences to be drawn therefrom, we have no hesitancy in holding that the Commission cannot be convicted of having acted arbitrarily and without an adequate reason. Claimant’s testimony was by no means unimpeached. For example, claimant testified at the trial that in picking up the box he had stooped over and twisted to his right, and was in an abnormal, unusual position. But in a statement given to the employer on September 24, 1962, only a month after the occurrence, he made no claim about having twisted or being in an abnormal position; his version at that time was that he had merely stooped over to pick up the box in his usual and customary manner. Furthermore, the record shows that after his discharge from the hospital he returned to work about September 24, 1962; that he did precisely the same work as he had done prior to the occurrence and was later given a regular route of his own; that he left his employment with Freund Bakery in January, 1963; that his claim was dated February 14, 1963; and that for the first time, so far as the record shows, he claimed that he had been in an unusual and abnormal position. And even in his claim, it will be noted, there was no allegation that he had twisted his body.

Numerous other areas of impeachment could be cited but the foregoing will illustrate that the Commission did not act arbitrarily in rejecting the claimant’s testimony or in finding, as it did, that claimant did not sustain an accident within the meaning of the Workmen’s Compensation Law.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.


author: ANDERSON, Judge.

text:
    Annie SPARKS, Plaintiff-Respondent, v. Donald SPARKS and Helen Sparks, Defendants-Appellants.
    No. 31747.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 18, 1965.

      Morton L. Schwartz, Frank Groom Kirtz, St. Louis, for defendants-appellants.
    Bearing, Richeson & Weier, Samuel Richeson, Hillsboro, for plaintiff-respondent.
   ANDERSON, Judge.

This is a suit in equity filed by Annie Sparks against Donald Sparks and Helen Sparks. The petition is in three counts. In Count I, plaintiff sought reformation of an agreement between the parties dated April 4, 1960, so that it would express the true agreement and understanding between them, and that defendants be required to make, execute and deliver to plaintiff a note in the amount of $45,000, subject to all proper credits, secured by a deed of trust upon the premises known as Sparks Funeral Home, and a chattel mortgage upon certain personal property, said note to be payable in ten equal annual installments beginning April 4, 1961 with interest at four percent (4%) per annum, payable quarterly, without any provision for cancellation of indebtedness at plaintiff’s death. Count II sought reformation of the note, deed of trust and chattel mortgage theretofore given so as to conform to the true agreement of the parties. Count III is not involved on this appeal since there was a finding and judgment for defendant on this Count. The trial court found for plaintiff on Count I and Count II and entered judgment of reformation. From this judgment, defendants have appealed.

The facts alleged as the basis of recovery under Count I are substantially as follows: That Jenkins and wife owned the Sparks Funeral Home in Potosí, upon which plaintiff held a deed of trust securing a note for $25,000. Defendants agree to purchase said property. Defendants requested plaintiff to cancel said deed of trust, lend them $20,000 additional, and to accept therefor a new note in the sum of $45,000 secured by a deed of trust, and a chattel mortgage on the equipment of said business. Plaintiff agreed to do this upon the promise that said Indebtedness would be paid in ten equal installments, beginning April 4, 1961, with interest on the unpaid balance at 4% payable quarterly. The defendants assured plaintiff, who was not represented by counsel, that they would employ an attorney to prepare the documents in accordance with such terms, and plaintiff permitted defendants to do so; that said documents were prepared in violation of the agreement and in fraud of plaintiff’s rights, in that it purported to be a testamentary disposition of plaintiff’s interest in the $45,(300 deed of trust, subject to certain limited payments to be made by defendants. That defendants falsely represented to plaintiff that the principal and interest payments provided by said contract were such that such payments would be fully discharged in a period of ten years in accordance with their understanding whereas in truth and in fact the instrument was so drawn as to permit payments to be extended over a period of 25 years, with any balance due upon plaintiff's death to be extinguished; that said representations were known by defendants to be untrue; that plaintiff believed said representations, and relied thereon, and was damaged and prejudiced thereby.

It was further alleged that said instrument was void for the reason that it purports to be a testamentary disposition of plaintiff’s property executed without the formalities necessary to a valid will; that there was no consideration to plaintiff for the execution thereof or adequate consideration for the purported waiver of the balance remaining due at the death of plaintiff.

By Count II of the petition, the allegations of fact contained in Count I were adopted by reference. It was then alleged that defendants in furtherance of their scheme to defraud plaintiff executed a promissory note for $45,000, containing a provision that it was “ * * * to be released and any unpaid balance extinguished as though paid in full immediately upon the death of Annie Sparks.”

It was then alleged that the note was fraudulent and void for the reason it was not executed with the formality of a will, and was not drawn in accordance with the understanding of the parties in that payments of the principal were limited to quarterly installments of 6% of the receipts of Sparks Funeral Home, and provided for extinguishment upon the death of plaintiff.

It was further alleged that the deed of trust securing the note contained the following language, among other things:

“ * * * the terms of the promissory note executed by Donald P. Sparks are covered in the collateral agreement executed this date and witnessed by Helen Sparks and Bert Cross.
“The said note shall have the following restriction on it:
“Upon the death of the Third Party, to wit, Annie Sparks, the balance of the principal, if any, then due and owing shall be cancelled and released and the debt shall be extinguished and the lien or encumbrance created by this Deed of Trust shall at the same moment be extinguished and this Deed shall be released as of record by the presentation to the Recorder of Deeds of Washington County of the certificate of death of Annie Sparks or the affidavit of death of Annie Sparks. This shall not be construed as a present gift, but a gift of any balance due from Donald P. Sparks to Annie Sparks at the time of her death.”

It was then alleged that said deed of of trust was fraudulent, illegal, and improperly drawn for the reasons theretofore stated.

The material averments of defendant’s answer put in issue the allegations of fraud contained in the petition and alleged that the contract, note and mortgage accurately expressed the agreement of the parties.

Annie Sparks was, at the time of the trial (Feb. 9, 1962) seventy-four years old. For several years, she and her husband had been engaged in the operation of a funeral home in Potosí. Her husband died in 1945. After his death, Annie operated the funeral home alone for some time; but later sold the business to Oman Jenkins. Jenkins operated the business for about a year. During that time certain matters developed between Annie Sparks and Jenkins which caused her to be dissatisfied with the latter’s operation and induced her to believe that it would be desirable that someone other than Jenkins operate the funeral home. With that in mind, she had several discussions with her nephew, Donald Sparks, concerning the purchase by him of the funeral home. Shortly before April 4, 1960, at a conference at her home in Potosí, she and Donald reached an agreement regarding the purchase by him of the business. Richard Smitty was present at this conference. The agreement reached at this conference was oral.

Annie Sparks testified that the terms agreed upon at this conference were that Donald Sparks would pay $50,000 for the funeral home; that she would cancel a $25,000 indebtedness owed her by Jenkins; that she would advance the additional $25,000 necessary to purchase the property from Jenkins; that she would accept new paper from Donald Sparks, and that he would make a down payment to her of nine or ten thousand dollars when he sold his home. In connection with this advancement, Donald executed to her a promissory note in the amount of $5,000 which was later paid, and the remaining $20,000 which was put up in cash by Mrs. Annie Sparks, was added to the existing indebtedness against the funeral home property, so that the total remaining indebtedness was $45,000.

Mrs. Sparks further testified that it was agreed the indebtedness would be retired at the rate of $5,000 per year with interest at the rate of four percent per annum on the unpaid balance payable quarterly. The note for $5,000 was afterwards paid by Donald, and Mrs. Sparks considered this the first payment under their agreement.

Richard Smitty testified for plaintiff. He stated that he was present in Annie Sparks home when she and Donald reached an agreement with reference to the sale of the funeral home, and heard the discussion between them with reference to the sale. He stated that the agreement reached was that there would be a down payment of $10,000 and that the balance would be paid at the rate of $5,000 a year, with interest at four percent payable quarterly. On cross-examination, he first testified “* * * what Donald Sparks and Mrs. Annie Sparks have between themselves is beyond my knowledge, for a down payment, * * * it was discussed, what they discussed after that is beyond my knowledge, I don’t know. * * * I wouldn’t say that he agreed directly to anything, * * * just an agreement * * * just talking business terms.”

“Q. Did you ever see the agreement?
“A. No, I never did.
“Q. Did you ever see anything in writing on this at all ?
“A. Never. * * *
“Q. Did you hear Donald Sparks agree to pay $10,000 down?
“A. We both agreed to it. (Smitty was also considering buying the property at the time.)
“Q. Five thousand a year * * * ?
“A. Five thousand a year, plus interest of four percent quarterly, that’s every three months.
“Q. How was the principal to be paid, once a year or quarterly?
“A. Quarterly.”

It is apparent that when the witness testified that he “wouldn’t say that he (Donald Sparks) agreed to anything,” he had in mind the written contract executed after the meeting. Therefore, it can be said that his testimony corroborated that of Mrs. Sparks.

Annie Sparks testified that after the terms of the agreement were settled, she wanted to have the papers drawn at Potosi, but Donald said, “ * * * no, Aunt Annie, let me take them up to St. Louis and have my lawyer fix them up, and said, he’ll fix them up right * * She further testified that she had so much confidence in Donald, she believed every word he told her. After the foregoing conversation, Donald left plaintiff’s house.

Thereafter, Donald Sparks returned with the documents to complete the sale as previously agreed upon. They were prepared by his attorney. One of these documents was a contract to sell the premises in question. It was prepared as a tripartite agreement between Jenkins and his wife, Dora, as sellers; Donald Sparks, as buyer and Annie Sparks, as mortgagee. By its terms Oman Jenkins and Dora Jenkins agreed to sell the funeral home to Donald P. Sparks and the latter agreed to purchase same. $50,000 was specified as the purchase price. Annie Sparks agreed to execute a deed of release then held by her of the liens on said property. Donald Sparks agreed to execute a new note and mortgage in favor of Annie Sparks to replace said indebtedness and to cover such other sum loaned to Donald Sparks which would be necessary for him to complete said purchase. It was provided that the buyer, Donald Sparks, would pay the seller $25,000 in the form of a cashier’s check, the balance of the purchase price to be covered by the deed of release executed by Annie Sparks. The seller agreed to execute the necessary warranty deed to the real property and a bill of sale covering the personal property sold. There was a legal description of the real estate and the items of personal property sold. Attached to the exhibit was a separate contract to be executed by Annie Sparks and Donald Sparks. It provides that Annie Sparks would release the $25,-000 note and deed of trust securing same held by her on the funeral home; and in lieu thereof, Donald Sparks would execute a promissory note for $45,000 in favor of Annie Sparks with four percent interest per annum payable quarterly.

It was further provided by said contract as follows:

“ * * * and Donald P. Sparks agrees to pay 6% of the gross receipts for each described quarter on April 15, July 15, October 15, and January 15, respectively; HOWEVER, the above described interest payment shall be deducted first from the 6% of the gross receipts so that Donald P. Sparks will never pay an amount greater than either one percent of the balance due on the principal of the said note, nor 6% of the gross receipts during the preceding quarter of a year at any of the described payment period, * *

Said contract further provides that the note would be secured by a deed of trust on the real property and a chattel mortgage on the personal property purchased from Oman Jenkins and his wife, Dora. It provided for repayment privilege without penalty or extra interest charge.

It was further provided in said contract that Annie Sparks would co-sign as an accommodation endorser with Donald Sparks a promissory note at the bank of Irondale in the amount of $5,000 to enable Donald Sparks to close the deal for the purchase of the funeral home, which would be retired by the net proceeds of a sale by Donald Sparks of real estate listed for sale by him; that Annie Sparks would act as a special consultant in the operation of the funeral home, but that Donald Sparks should make all final decisions in the management and conduct of the business. The contract also made provision for the turning over to Donald Sparks certain assets and a number of insurance policies held by her, in trust, as prepaid funeral expenses of persons then living upon the death of said persons.

The contract then contained the following provision:

“Now therefore, in consideration of mutual promises herein contained Annie Sparks does hereby promise and agree to will, devise and bequeath to Donald P. Sparks whatever right, title and interest that she has under the aforedescribed $45,000.00 promissory note and the Deed of Trust and Chattel Mortgage that secures the said $45,000.00 notes, and in behalf of her estate, executors, administrators, heirs and legatees, if any, Annie Sparks does hereby release and waive any and all obligations, liens and mortgages that she holds against the funeral home at Potosí, the real property upon which it is situated and all the personal and mixed property used in connection therewith, the property, real, personal and mixed that is now used with said funeral home, the exact description of all said property is set out in an agreement among Oman Jenkins and his wife, Donald P. Sparks and Annie Sparks and that she hold against Donald P. Sparks individually and any corporation formed by him to conduct the said funeral business, so that Donald P. Sparks, will be free and clear of any debt to her estate, heirs, administrators and executors.
“IN WITNESS WHEREOF, the parties hereto affix their hand and seal this day of , 1960.
(SIGNED) Annie Sparks Donald P. Sparks
“We, the undersigned, do certify that Annie Sparks and Donald P. Sparks the above named parties on the day and year above written signed the foregoing instrument in our presence and published and declare the same to be a testamentary contract, and we, at the same time at their requests, in their presence, and in the presence of each other, have hereunto set our hands as subscribing witnesses and we do certify that at such time they both were of sound and disposing mind.
(SIGNED) Helen M. Sparks 5061 Washington St. Louis 8, Mo.
(SIGNED) Bert Cross 102 Mill Potosi, Missouri”

The note and Deed of Trust were offered in evidence but do not appear in the transcript. Nor were either of said documents lodged with the clerk. However, defendant in his answer alleged that both note and mortgage contained a provision for automatic cancellation upon the death of plaintiff.

Annie Sparks signed the contracts, received the note and mortgage and advanced the money necessary to complete the purchase.

Annie Sparks testified, that Bert Cross was not present at her home at the time she executed the contract and that she was not present when Bert Cross annexed his signature thereto. Defendant Donald Sparks, gave like testimony. Bert Cross testified he was not present when Annie Sparks signed the instrument, nor was she present when he signed. Annie Sparks further testified that neither Donald Sparks or Helen Sparks signed the contract in her presence.

Donald Sparks was plaintiff’s nephew and a second cousin of her husband. Plaintiff stated she wanted Donald to have the funeral home because she loved him the same as her own child, and had helped raise the whole family; that she had confidence in him; that she told him she would forgive any balance due at her death if he would do certain things with respect to providing funerals for her family, but that he had failed to perform these conditions.

Plaintiff further testified that when Donald brought the papers for her to sign, she was not able to determine whether they were made in accordance with the oral arrangements she had made with Donald. When she received the papers, she put them in a drawer and did not have occasion to examine them again until Donald undertook to make the first payment on the note. He brought her $S00 as the first payment on the principal At that time, she asked him if he couldn’t pay more, he replied that it was all he was supposed to pay. Shortly after that, she consulted a lawyer.

Donald Sparks testified in substance that Annie Sparks had urged him to buy the funeral home, and told him she would furnish the purchase money and he could repay it to her anyway he wanted to. He stated that she also said she would cancel all indebtedness in her will. He stated that he told Annie Sparks he had some property in St. Louis to sell on which he believed he could receive a nine or ten thousand dollar down payment, and that he would use part of it as a down payment on the purchase of the funeral home and the balance as working capital. He further testified that they discussed the interest and payment of the principal and Annie Sparks told him she would like to have 4% interest and that he could repay the loan anyway he wanted to; that they discussed the percentage of the gross receipts; that after he said 10% was too high, he suggested 6% which she said- was all right; that he was supposed to pay her an amount not greater than 6% of the gross receipts after the interest was deducted, which amount would not be greater than one percent of the principal.

Donald further testified that Annie Sparks said she would like to have the papers drawn up in Potosí, but he told her he had a job in St. Louis and could not come all the way to Potosí; that he could get a lawyer in St. Louis and she said for him to get a lawyer and draw up the papers anyway he wanted; that it did not make any difference to her; that they had to get Jenkins out.

Donald further testified that when he brought the written agreement to her, which was prepared by his lawyer in St. Louis, she read it over; that he asked her if there were any questions and that she could have somebody explain it to her if she wanted to, because it was all legal; that he tried to explain everything to her; and that she said as far as she was concerned everything was all right and that she would sign it.

On cross-examination, Donald testified that his lawyer, Schwartz offered to go to Potosí to explain the agreement to Annie Sparks, but he did not think it necessary; that he asked Annie if she wanted to take the papers and have a lawyer or anyone else look at them, but she said, “I don’t think that’s necessary * * * I trust you.” He admitted he did not tell her that under the agreement as drawn, it would take a minimum of twenty-five years to pay off the indebtedness, and that he did not know she would he 96 years old before the debt was liquidated. He further testified that after the agreement was signed, plaintiff gave him $7,000 in cash and two checks, all amounting to $25,000. He stated that the first time Annie Sparks protested was when he took a check to her in October, 1960, which was the first occasion, as far as he knew, she had any knowledge of the amount of money he figured was due under the contract.

Defendant, Helen Sparks, wife of Donald, testified that she was present on one occasion in Annie Sparks home when she expressed dissatisfaction with the way Jenkins was taking care of the business, and stated she wanted Donald to buy it saying that it looked like it was going to take $50,000 to get him out. Helen further testified that Donald said $50,000 was too much money; that on another occasion, Annie told Donald if he would buy it, she would loan him the money and he could repay it anyway he wanted to, and have the papers drawn in anyway he wanted. She further testified that there was a discussion about what she and Donald would get out of the sale of their house, and plaintiff told Donald she would loan him the full amount if he couldn’t sell before the deal on the funeral home was closed, and when he sold the house, he could make a down payment; that plaintiff had Donald and her sign a note for a loan of $5,000 for the down payment. She stated she heard plaintiff tell Donald she would put a provision in her will that whatever Donald owed her would be marked paid.

Defendant produced several witnesses who gave opinion to testimony as to the reasonable value of the funeral home. The testimony of these witnesses placed the value far below $50,000, the price agreed upon by the parties to the sale in question. We do not deem a detailed review of this testimony, necessary to the decision of any issue on this appeal.

Plaintiff then called Donald Sparks in rebuttal. He testified that from the date of the agreement, April 4, 1960, until the date of the trial, February 9, 1962, he had paid a total of $1277.31 on the principal of the note and that the gross receipts of the business amounted to $59,399.99, plus an accumulation of $7,000 to $10,000 accounts receivable.

The Court found the issues with respect to Counts I and II in favor of plaintiff, and ordered reformation of the contract between the parties, set aside the provisions with respect to the time, terms and conditions of payment and forgiveness of the unpaid portion of the indebtedness, and prescribed the terms of the reformed agreement which were in accordance with plaintiff’s evidence, and prescribed the terms of the new evidence of debt and security required in like manner. As to Count III, the Court found the issues for defendants and denied the injunctive relief prayed.

Appellant’s first point seems to be that the finding and judgment is against the weight of the evidence. The reasons urged in support of this assignment are that plaintiff’s evidence of the oral agreement between the parties should not be considered because it was inadmissible under the parol evidence rule, and for the further reason it was offered merely to show unilateral mistake, which is not a ground for reformation; hence plaintiff failed to sustain her burden of proof; that the Court should have so found and held that the written contract was valid and embodied the true agreement of the parties. Plaintiff’s evidence was not offered merely to show unilateral mistake on the part .of plaintiff. An examination of the petition shows allegations of mistake on the part of plaintiff caused by fraud or inequitable conduct on the part of the defendant, Donald Sparks. Plaintiff offered evidence in support of these allegations, which if believed would warrant reformation of the contract in accordance with the true intent of the parties. Citizens Bank of Festus v. Frazier, 352 Mo. 367, 177 S.W.2d 477; Hoxsey Hotel Co. v. Farm & Home Savings & Loan Association of Missouri, 349 Mo. 880, 163 S.W.2d 766; Lauffer v. Smith, 337 Mo. 22, 85 S.W.2d 94. 76 C.J.S. Reformation of Instruments § 29, pp. 371-372.

There is no merit to the contentions made. In a suit in equity for reformation on the ground of fraud on the one part and mistake on the other, as was pleaded in this action, parol evidence is admissible to show the actual agreement of the parties. Employers’ Indemnity Corporation v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826.

If the testimony of plaintiff and her witness, Richard Smitty, is to be believed, the proof of plaintiff’s right to reformation is clear, cogent and convincing, and the judgment should be affirmed. 76 C.J.S. Reformation of Instruments § 29, pp. 371— 372. On the other hand, if the testimony of Donald Sparks and his witnesses is true, the judgment should go against plaintiff and in favor of defendants. Therefore the disposition of the case is largely dependent upon a question of credibility of the witnesses. As to that, we feel com-, pelled to defer to findings of the trial court, who had the witnesses before him, and observed their demeanor as they detailed their testimony concerning the matter at issue. His finding had to be based upon the acceptance of plaintiff’s version, and we therefore defer to the trial court and aceept its findings upon the issue of fact. We might add that said finding seems amply supported by other considerations not the least of which was the unconscionable bargain which defendant, who we find stood in a confidential relationship with plaintiff, will have made unless the contract as written is not reformed.

The next point urged is that the Court erred in ordering deleted from the contract and note the provision that upon the death of plaintiff the unpaid balance of the debt would be forgiven, because it was against the expressed intention of the plaintiff as gathered from her testimony.

There is no testimony in the record that it was agreed between the parties that the above mentioned provision should be incorporated in the contract or in the note and mortgage. Plaintiff testified merely that she told Donald she would forgive any balance at her death if he did certain things, which he failed to do. Donald’s version was that plaintiff told him she would cancel all indebtedness by her will.

It is next urged that the Court erred in reforming the contract so as to provide for the payment of $5,000 a year on the principal, beginning April 4, 1961, for the reason that said order was beyond the scope of the pleadings in that the petition sought a modification to provide for payment of the installments of $4,500 each.

Plaintiff testified that she considered the $5,000 down payment as the first payment on the $50,000 purchase and that the remaining installments of the indebtedness were to be paid at the rate of $5,000 per year. This evidence went in without any objection that it was not within the scope of the pleadings. Therefore, the pleadings will be considered as amended to conform to the proof. We must rule against appellant on this assignment.

It is next urged that the Court erred in failing to find the exact amount paid plaintiff by defendants in principal and interest to the date of judgment.

There was no prayer in the pleadings by either party requesting such determination. The suit involved merely the matter of reformation, and not the ascertainment or collection of the amounts due. There was no issue made of the amounts paid. If, hereafter, it should become necessary to foreclose the deed of trust, defendants will have ample opportunity to establish any credits on the note to which they are entitled. There is no merit to the complaint made.

The next point urged' is that the Court erred in creating a new contract for the parties. There is no merit to this contention. The Court in the exercise of its equitable jurisdiction in this case did not assume to make a new contract for the parties; it merely gave effect to the real contract they made by ordering the evidence thereof drawn to conform to said agreement. Miller v. St. Louis & Kansas City Ry. Co., 162 Mo. 424, 63 S.W. 85, l. c. 441; Meyer et ux. v. Young et ux., 23 Wash.2d 109, 159 P.2d 908.

Appellant’s final assignment of error is that the court erred in entering its decree for reformation, in view of the fact that plaintiff admitted she read only parts of the contract, and in view of rule of law that one who signs a contract is presumed to have read it.

Plaintiff testified that when- Donald brought the papers to her for her to sign, she read only part of the contract but was unable to determine whether or not it was drawn in accordance with the oral agreement; that she did not understand it. She further testified that she did not read the note and deed of trust because she trusted Donald. It does not appear what part of the contract she read, but be that as it may, it is not surprising that she did not understand it, for it is a strange document drawn in such a manner as would confuse the ordinary lawyer skilled in the interpretation of legal documents. To such a person it would require careful reading and re-reading to discover its -meaning. It seems to be a contract and testamentary disposition of property all in one instrument, although it could not be the latter because it was not executed with the formalities necessary to the execution of a valid will.

Plaintiff possessed a limited education, having quit school before completing the eighth grade. Furthermore, we find there was a confidential relationship existing between her and- her nephew, which imposed upon Donald the duty of fully disclosing all material information with reference to the documents which he possessed. Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87.

Defendant’s contention amounts to a plea of negligence on the part of plaintiff in failing to read the documents before signing the contract. Such a plea has in some instance been upheld where mutual mistake is relied upon as grounds for reformation, but will not be sustained where there is excusable neglect. Berry v. Continental Life Ins. Co., 224 Mo.App. 1207, 33 S.W.2d 1016. But we have been cited to no case where such negligence has defeated reformation for fraud or misplaced confidence as in the case at bar. In our opinion, it should not be applied in such cases. The correct rule in our judgment is stated in McKleroy v. Dishman, 225 Ala. 131, 142 So. 41, l. c. 45, as follows:

“More clearly and obviously, the grantor cannot set up the negligence of the grantee in failing to read the instrument, if the fraud or inequitable conduct of the grantor caused the instrument to be drawn or accepted with provisions at variance with the true agreement. One cannot complain of misplaced confidence in himself. If, on the whole, denial of relief- will work a fraud on the grantee, a court of equity will not sustain such defense.”

In Hammond Hotel & Improvement Co. v. Perrin, 96 Ind.App. 311, 184 N.E. 906, a lessor in drawing up a lease omitted a certain provision agreed upon by the parties. It was urged on appeal that the lessee was negligent in not discovering the omission, and therefore, was not entitled to the relief of reformation. In disposing of this contention, the Court said:

“Appellant raises the question that appellee was guilty of negligence in not ascertaining that this clause was omitted from the lease, and hence could not be heard to raise the question now. It would be a peculiar situation indeed to hold that, where the law imposed the duty upon appellant, as it does, to disclose to the appellee that it had omitted from the written lease an important clause, which it had agreed to insert therein, to say in effect, We have failed to incorporate this in the lease, notwithstanding the fact that we agreed to insert it; but it is for you to discover the omission, and, if you fail to discover it, you are negligent and will have to abide by the contract as written by us.
- “One cannot deceive another as to matters which he is bound to disclose, and then deny him relief by saying that he was negligent in not finding out that he was being deceived.”

See also, Panhandle Lumber Co. v. Rancour, 24 Idaho 603, 135 P. 558; Ward et al. v. Lyman, 108 Vt. 464, 188 A. 892; Tomas v. Vaughn et al., 63 Cal.App.2d 188, 146 P.2d 499.

It would be a monstrous perversion of justice to deny plaintiff the right of reformation upon the ground that she was negligent in not reading the entire contract and in failing to read the note and mortgage before signing the contract, under the facts- and circumstances shown. Defendant, Donald acting for himself and wife by his attempt to take advantage of plaintiff’s failure to discover the fraud does not assume a position that commends him to" a court of equity. It is inconsistent and inequitable for defendants to rely upon plaintiff’s negligence in failing to discover the fraud under the facts in this case. Defendants should not be relieved of the consequence of the fraud of Donald which would be beneficial to them.

We cannot agree with defendants that by signing a contract there is a presumption that the person who signs has read it, which presumption cannot be overcome by evidence in a - suit in equity for reformation. The books are full of such cases.

We find no merit whatever to the appeal in this case. Our findings on the merit are in accord with those of the trial court.

The judgment is affirmed.

WOLFE, Acting P. J., and R. KENNETH ELLIOTT, Special Judge, concur.


author: WOLFE, Acting Presiding Judge.

text:
    Ida ROGERS, (Plaintiff) Respondent, v. Ruby Hazel SPAIN, (Defendant) Appellant.
    No. 31552.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 18, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for appellant.
    Tyree C. Derrick, St. Louis, Robert A. Mcllrath, Flat River, for respondent.
   WOLFE, Acting Presiding Judge.

The plaintiff Ida Rogers brought this suit against defendant Ruby Hazel Spain to recover damages arising out of personal injuries which she sustained. The injuries were inflicted upon the plaintiff when the automobile in which she was riding as a passenger was struck by an automobile driven by the defendant. There was a verdict and judgment for the plaintiff, and the defendant prosecutes this appeal.

The facts giving rise to the action occurred on December IS, 1959, at about 3:45 p. m. Cleon Rogers, a son of the plaintiff, lived at Mine LaMotte with his mother and father. He was going to drive his Pontiac automobile out to a place where he had seen a cedar tree which he wanted to get to use as a Christmas tree. He invited his mother and father to ride with him. The plaintiff sat in the front seat with her son, and her husband sat in the back seat, as their son drove his car over Village- Creek Road near Fredericktown, Missouri.

Village Creek Road is a gravel road 20 to 22 feet wide with a ditch on either side. It goes to the southeast in the direction that the plaintiff was traveling. Cleon Rogers, the plaintiff’s son, testified that while traveling on his side of the road, at- a speed of about 20 to 25 miles an hour, he came to the crest of a small hill. There he saw the defendant’s automobile coming from the opposite direction about 150 feet away and on his side of the road. He applied his brake at once and pulled as far as he could to the right without going into the ditch. But the defendant came on and veered toward him. When he had almost stopped his automobile, he was struck head on by the defendant’s automobile. His mother, the plaintiff, was thrown forward, striking her head upon the windshield and suffering two cuts on her face. She was bleeding profusely as he helped her from the car. He applied a compress to stop the bleeding and held it upon her wounds until she was sufficiently conscious to hold it herself. He then went to a nearby house to phone for help. He testified that the defendant came over to the car while he was attending his mother and said, “It’s my fault and I’m very sorry.” There is no dispute about the fact that the collision took place on the plaintiff’s side of the road; nor is the fact that she was traveling on the right side prior to the occurrence controverted. The skid marks her son’s car made in stopping were in his proper lane, and there were skid marks left by the defendant’s car which were in the plaintiff’s lane.

The defendant in her own hehalf testified that she was driving to Mine LaMotte and had driven onto the Village Creek Road from some other road where she had forded a creek, and that her brakes may have been wet. She said that she could have swerved to her right “if she hadn’t been so scared.” She said that when she applied her brakes they grabbed because of being wet, and the car swerved to the left.

The plaintiff was found to be suffering from a fractured left hip and many abrasions and bruises, in addition to the cuts mentioned. The evidence relating to this will be further stated in discussing the points raised' in relation to it.

The first point raised is that the trial court erred in failing to strike the testimony of Dr. Hoffman because the doctor testified that there was an aggravation of arthritis and that the plaintiff did not plead a pre-existing condition of arthritis. The defendant cites us to Simon v. S. S. Kresge Co., Mo.App., 103 S.W.2d 523, and May v. Hexter, Mo.App., 226 S.W.2d 383. In both cases we held that under a general charge of injury, the defendant was to be held for such results as would naturally follow. It might be a natural result of such an injury if there was in fact a preexisting arthritic condition, but it would not be a necessary result of it, and consequently a special pleading is required to show the existence of the arthritic condition if the plaintiff expects to recover for such an item of special damage.

The doctor in the instant case stated that the plaintiff suffered a fracture of the acetabulum, which is the hip socket. He said there were several fragments, and that the fracture extended into the left hip socket. He said that the fracture caused traumatic arthritis on the head of the left femur. The following questions and answers were relied upon by the defendant:

“Q. Doctor, are you assuming that the collision caused it, is that it, caused the arthritis ? In other words, that the collision itself actually caused the arthritis ?
“A. Her fracture of the acetabu-lum—
“Q. Actually caused the arthritis?
“A. Yes, it would be enough to aggravate it, yes, sir.”

After this counsel for the defendant moved to strike the testimony relating to aggravated arthritis.

The doctor, however, later explained by saying that the traumatic arthritis that appeared on the X-ray was shown to have increased in a later X-ray. Nothing was ever said by the witness about a pre-exist-ing arthritis. He at all times insisted that the arthritic condition was traumatic. We must therefore rule this point against the appellant.

The next point raised by the appellant is, “The court erred in failing to strike the testimony of Dr. Taylor that the plaintiff’s pain would most likely be permanent but could get entirely well as far as he knew because such testimony was speculative.” The testimony of which the appellant complains is as follows:

“Q. * * * Do you know whether or not this is a permanent pain that she had?
“A. She still had it when I last saw her in June, 1961.
“Q. And from that would you assume, to a reasonable degree of medical certainty, that she would continue to have it, Doctor?
“A. Most likely. But it could get entirely well too as far as I know. But then the probabilities are that she would continue to have it.”

Counsel moved to strike the testimony and to instruct the jury to disregard it on the ground that it was too speculative. The court overruled the motion. The Missouri Supreme Court stated, in Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, l. c. 334:

“To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.”

That case was quoted with approval in Kiger v. Terminal Railroad Association of St. Louis, Mo.Sup., 311 S.W.2d 5. See, also, Hahn v. McDowell, Mo.App., 349 S.W.2d 479; Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S.W. 821; Clark v. Mississippi River and B. T. Ry., 324 Mo. 406, 23 S.W.2d 174.

The answers here considered are not statements simply of a likelihood or a probability, but they are statements that “to a reasonable degree of medical certainty” the injuries would be permanent. The fact that the doctor stated that the plaintiff could get well does not destroy the value of the statement, because the possibility of complete healing is most always present. As stated in Plank v. R. J. Brown Petroleum Co., supra, “absolute certainty is not required.” We hold the statement, when considered with the question asked, as of course it must be, was not subject to the objection raised against it.

It should also be noted that it is not contended here that the verdict is excessive, and the testimony of the doctor could only go to the measure of plaintiff’s damages. Permanent injuries were not itemized in the measure of damage instruction, and the verdict appears to be but modest compensation for the injuries sustained. It therefore appears that if the testimony had been erroneously admitted, it would not be prejudicial. Millard v. St. Louis Public Service Co., Mo.App., 330 S.W.2d 147; Willis v. Rivermines I. G. A. Supermarket, Mo.App., 350 S.W.2d 437; Anderson v. Bell, Mo.Sup., 303 S.W.2d 93.

The last assignment of error relates to the verdict-directing instruction given on behalf of the plaintiff. The defendant’s first two objections to the instruction rest upon a contention that it hypothesizes negligence not pleaded. It is indeed prolix, and hypothesizes many unnecessary facts. All of the facts hypothesized were supported by the evidence, and it would have been evident to the jury that the negligence submitted was that the defendant operated her car on the left side of the highway. The main objection to the instruction is that it ignores the defendant’s evidence that her brakes locked and caused her car to swerve to the left, and that this and not her negligence was the proximate cause of the collision. The defendant offered and the court gave an instruction on this. If the evidence warranted the instruction given at the defendant’s request, it would have been necessary for the plaintiff’s verdict-directing instruction to predicate a verdict, not only upon the facts that favored her, but to also state that a verdict in her favor could not be reached if they found the defense asserted by the defendant to be true. We are cited to Evans v. Colombo, Mo.Sup., 319 S.W.2d 549. That was a skidding case where there was evidence upon which a jury might have found that “purely accidental skidding was the proximate cause.”

No such situation is present in this case, for the undisputed evidence is that the defendant was negligently headed on a collision course with the car in which the plaintiff was riding as she traveled on the wrong side of the road toward plaintiff’s car. There was no evidence from which a jury might have concluded that whatever swerving the defendant did was the proximate cause of the collision. Under the evidence, all that could have been found on the question of swerving was that the swerve brought the defendant’s car farther into the path of the other car than it would have been had she not swerved. No evidence was presented from which it could have been said that, absent the swerve to the left, she would not have struck the car in which the plaintiff was riding.

That which we have said above in relation to the instruction given on behalf of the plaintiff leads us to the conclusion that it contained no prejudicial error. For that reason, and for the other reasons above stated, the judgment is affirmed.

ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, J., not participating.