author: DALTON, Judge.

text:
    Jean BRAMSON, Plaintiff-Appellant, v. Don HENLEY, d/b/a Don’s Truck Service, Defendant-Respondent.
    No. 48402.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Rehearing Denied Feb. 12, 1962.

      Barnhart & Sommers and Don B. Som-mers and David G. Dempsey, St. Louis, for appellant.
    Schwartz, James & Sweet, Wilbur C. Schwartz, St. Louis (Joseph Nessenfeld, St. Louis, of counsel), for defendant-respondent.
   DALTON, Judge.

Action for $50,000 damages for personal injuries alleged to have been sustained when defendant’s truck collided with the rear of an automobile operated by plaintiff. Verdict and judgment were for defendant and plaintiff has appealed.

The cause was submitted by plaintiff solely on the alleged specific primary negligence of the operator of the truck under what has been frequently referred to as the “rear end collision doctrine.” See Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, 919(4, 5); State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 70; Vinson v. East Texas Motor Freight Lines, Mo.Sup., 280 S.W.2d 124, 133(7); Witherspoon v. Guttierez, Mo.Sup., 327 S.W.2d 874, 877(1), 880(5); Buell v. Irwin, Mo.Sup., 332 S.W.2d 929, 931(2). The fact of the collision was admitted by defendant, and defendant’s defense was submitted by defendant’s Instruction No. 2 on the theory that the truck driver was not negligent and the collision resulted from a sudden brake failure. The legal sufficiency of Instruction No. 2 is the sole issue presented by appellant.

Plaintiff’s evidence tended to show that about 5 p. m. on June 7, 1957, she was driving a 1955 Oldsmobile coupe north-wardly on Lindbergh Boulevard in the outside or right-hand lane for northbound traffic. She had entered Lindbergh, a four-lane trafficway, from St. Charles Rock Road about one mile to the south of the point of collision and she was approaching Lombardy Lane in St. Louis County at the time the collision occurred. The weather was clear, the streets dry, and plaintiff’s highest speed, as she drove northwardly, did not exceed 30 m. p. h. Lindbergh crosses over Natural Bridge on a viaduct about two blocks south of Lombardy. As plaintiff left the viaduct she looked into her rear-view mirror and saw no vehicles in her lane behind her. She began to slow down as she left the bridge preparatory to making a right turn into Lombardy Lane. It is downgrade north of the viaduct. As plaintiff proceeded, she subsequently looked again in the rear-view mirror and saw no one behind her. When the collision occurred, plaintiff had just passed an automobile which had stopped in the left northbound lane with its left-turn signal on preparatory to turning left into a place on the west side of Lindbergh. Plaintiff’s car was then about one house away from Lombardy Lane. While plaintiff was still proceeding north on Lindbergh, plaintiff had looked behind her for the third time and first saw the big red truck in her rear-view mirror an instant before the collision occurred. At that time there were no automobiles or people on the right shoulder of Lindbergh, According to plaintiff there were three severe impacts between the truck and her car, but only two according to defendant’s truck driver. Plaintiff’s car, with the truck behind it, came to a stop some distance north of the Lombardy Lane intersection. Plaintiff did not testify as to the exact speed of her automobile at the moment of the collision. Plaintiff had no recollection as to whether or not she applied her brakes after the collision. Plaintiff sustained severe injuries, but we need not review the evidence in that respect in view of the issues presented.

It was stipulated between the parties that if Eugene Leslie Agee, defendant’s truck driver, were present his testimony would conform to his affidavit, as offered in evidence by defendant. The affidavit was in part as follows: “On June 7, 1957, * * * I was employed as a truck driver by Don Henley, and had worked for him for one week. I had been working as a truck driver since 1936. While I worked for Mr. Henley I drove a 1955 truck belonging to him. * * * I had been hauling gravel to a contractor job on West Florissant and Highway 66. I was involved in an accident on June 7, 1957, at about 4:45 p. m. The truck was loaded with about 8 tons of gravel at that time. I was headed north on Highway 66 and 40 Bypass, which is a four-lane highway. I was in the right-hand, northbound lane, driving at about 35 miles per hour. I observed a 1957 Oldsmobile two-door hardtop driving in my lane ahead of me, and another car in the lefthand northbound lane ahead of us which was stopped, signalling for a left turn into a service station. The driver of the Oldsmobile slowed down by applying her brakes, as I noticed her brake light come on when she approached the car signalling for a left turn. When I saw her brake light on, I applied the brakes of the truck. The brakes pulled for a second or two, and then suddenly, without warning, the pedal went to the floor. The brakes were hydraulic. I applied the emergency hand brake, but as I was loaded and going downhill, I could not stop the truck before it hit the Oldsmobile in the rear end. At this time, I was going downhill from an overpass. At impact, the Oldsmobile was going at about 20 miles per hour, and its rear end was about even with the front of the car that was in the inner lane of northbound traffic. The driver of the Oldsmobile then applied her brakes hard and, when the Oldsmobile was about stopped, the truck struck it again. The name of the driver of the Oldsmobile was Jean Bramson, of 7 Lombardy Drive, Bridgeton, Missouri. She was taken from the scene in an ambulance. She was alone in the car at the time, and I was alone in the truck. * * * On inspection of the truck, we found the wheel cylinder had blown out. I had had no trouble with the brakes prior to this accident. * * * I don’t know how many stops I made that day. I would estimate up to 50. I had full pedal until the accident.”

Defendant offered other evidence tending to show that an inspection of the truck at the scene of the collision showed brake fluid on the left rear wheel; that the truck had been inspected and found in good condition on Saturday before the collision on Friday; and that an inspection of the braking system, after the accident, showed a ruptured gasket, which had allowed the brake fluid to escape. Defendant also offered evidence tending to show that the truck was equipped with an emergency or hand brake in splendid working condition and sufficient to slow the truck, but that an emergency brake was not very effective when the truck was loaded and not as effective as hydraulic brakes; that an emergency brake is effective as a holding brake but not as a stopping brake; and that “it will slow you down but it takes a long distance to stop, eventually it will.”

In rebuttal plaintiff offered evidence tending to show that there was brake fluid on the left rear truck tire which appeared to have an accumulation of mud and dust on it and the fluid had soaked into the tire, which might indicate the fluid had been leaking for some time.

It will be noted that the evidence tends to show that plaintiff had been driving around 30 m. p. h. and was moving at 20 m. p. h. at the moment of the collision; that defendant’s truck, with 8 tons of gravel, approached from behind plaintiff at 35 m. p. h. and ultimately collided with the rear of her automobile. We find no evidence in the record as to either the time or distance separating the front of the truck from the rear of plaintiff’s automobile at the time defendant’s truck driver applied his hydraulic brakes.

In view of certain alleged defects in defendant’s Instruction 2, as hereinafter discussed, we should perhaps say that there is no evidence from which an inference can he drawn that a collision would not have occurred if the hydraulic brakes had not failed. The evidence does show that by reason of the speed and weight of the truck, the slope of the ground and the nearness of the truck to plaintiff’s automobile when the alleged “brake failure” occurred, an emergency hand brake in splendid condition was wholly inadequate to prevent the collision. Further, the record contains no evidence concerning stopping distances for the truck in question by use of either the hydraulic foot brakes or the emergency hand brake, or in view of the load and speed of the truck on the downgrade shown.

Before considering the questioned instruction on its merits we must consider a contention raised by respondent, which contention, if sustained, would dispose of the appeal. Respondent contends that “plaintiff was contributorily negligent as a matter of law in failing to keep a proper lookout, and therefore was not entitled to recover in any event.” Respondent argues that it was a clear, bright day, with no other traffic in plaintiff’s lane; that plaintiff wholly failed to see defendant’s large red truck being operated behind her in her lane until the instant before the collision, although she looked in her rear-view mirror several times; that had plaintiff kept a proper lookout “she could have averted the collision either by accelerating her speed or by both accelerating her speed and completing her right turn”; and that her failure to see what was plainly visible constituted contributory negligence as a matter of law precluding her recovery, and the judgment therefore was for the right party. Respondent says there is no explanation whatsoever in the record as to why plaintiff did not see defendant’s truck behind her “in time to have taken preventive action to avoid the collision.”

There is conflicting evidence as to whether the truck was behind plaintiff in her lane until immediately before the collision, and from the evidence an inference could be drawn that the truck was in the lane behind the left-turn signalling car, or elsewhere, until immediately before the collision. There is no evidence that plaintiff knew or could have known of any danger of collision in time to have avoided it. In any event we find no substantial evidence in this record tending to show contributory negligence as a matter of law in the • respects claimed. No such contributory negligence was assigned as a ground for defendant’s motion for a directed verdict at the close of plaintiff’s case or at the close of all the evidence. In fact, contributory negligence in the respects mentioned was not pleaded as a defense, nor was any instruction requested with respect to such an issue. The contention is overruled.

Defendant’s Instruction No. 2 of which plaintiff-appellant complains is as follows:

“The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence Eugene L. Agee was driving and operating defendant Donald Henley’s truck in a northwardly direction on Lindbergh Boulevard, and to the rear of the automobile being driven by plaintiff, and was at all times in the exercise of the highest degree of care, and that he applied his brakes when plaintiff reduced the speed of her automobile to turn into Lombardy Lane, and that when he applied his brakes a wheel cylinder cup of the hydraulic braking system suddenly and without warning ruptured and failed, and that as a result of such failure the driver of defendant’s truck was unable, in the exercise of the highest degree of care, to avoid the accident and collision mentioned in evidence, and was not negligent, and that defendant exercised the highest degree of care to inspect and maintain the brakes and braking system of his truck, and was not negligent, then plaintiff is not entitled to recover in this case, and your verdict must be for the defendant Donald Henley.”

The instruction was objected to at the time it was given but no specific objections were stated. In the motion for a new trial the plaintiff complained of error in the giving of said instruction as follows, to wit: (a) because the instruction ignores the only evidence in the case as to when the brake failure occurred, to wit: the statement of the driver that when he applied the brakes they pulled for a second or two and he then applied the emergency hand brake; (b) because the instruction allows a verdict for the defendant even though the jury may have believed the defendant’s driver to have been negligent in overtaking the plaintiff’s automobile at such close proximity that the truck could not have stopped; (c) because the instruction allows a defendant’s verdict even though the jury may have believed that, notwithstanding the failure of the brakes, the defendant could have, in the exercise of the highest degree of care, avoided the collision mentioned in the evidence by swerving the truck; (d) because the instruction allows the defendant’s verdict even though the jury may have believed that the brakes on the defendant’s truck may have been leaking prior to the brake failure at the time of the accident; and (e) because the instruction ignored the requirement of Section 304.560 RSMo 1949, V.A.M.S., that vehicles operated on the public highways of this State be equipped with two sets of adequate brakes kept in good working order, and the instruction does not require the jury to find that defendant’s truck was so equipped or that defendant’s other brakes were adequate.

Appellant now contends that Instruction 2 is erroneous (1) because it is a positive misdirection of law in that the jury was instructed therein that the failure of the hydraulic brake system was a full defense to plaintiff’s charge of negligence, ignoring the requirements of Section 304.560 which required the defendant to maintain two sets of adequate brakes on his truck; (2) because the instruction allows the jury to find for the defendant simply if the brakes failed, without evidence and without requiring a finding that such brake failure proximately caused the collision; and (3) because the instruction “does not contain any elements conversing plaintiff’s instructions and is, in essence, a ‘sole cause’ submission without negating negligence of the defendant’s driver as submitted in plaintiff’s instructions.”

Respondent contends that the above assignments are not within the assignments specified in the motion for a new trial. Supreme Court Rule 79.03, V.A.M.R. That issue will be considered where necessary in ruling the assignments.

In support of her first assignment of error on this appeal, to wit: that Instruction No. 2 ignores the statutory requirement of two sets of adequate brakes, the appellant contends that in this instruction the defendant undertook to submit the failure of the hydraulic brakes as a legal excuse for his action in running into the rear end of plaintiff’s automobile; but that an excuse to be a legal excuse must be sufficient, if true, to justify the legal conclusion that the collision was not due to any negligence on the part of the defendant. Appellant says, “Defendant obviously could not submit that his truck had no brakes as a legal excuse for the occurrence”; that “what he did submit as an excuse was that one set of brakes failed and that he was not negligent in causing the brake failure”; that to set up a legal excuse “defendant had to prove and require the jury to find that his truck was equipped with two sets of adequate brakes and the failure of the one caused the accident without negligence on his part.” Appellant further says this error is “accentuated by defendant’s own evidence showing that the emergency braking system of the truck probably was not adequate within the meaning of the statute,” and the instruction was “a misdirection of law and does not embody a complete defense to the charge of negligence raised by plaintiff.”

We might agree with the first part of this first assignment of error except for the fact that the assignment is limited to a false reason or ground, to wit: that the instruction ignored the requirements of Section 304.560(3) RSMo 1949, V.A.M.S. which requires the defendant to maintain two sets of adequate brakes on his truck. Plaintiff in her petition did plead a violation of the mentioned statute, but she wholly abandoned that assignment of negligence in the submission of her cause to the jury when, upon a detailed hypothecation of applicable facts, she submitted her cause upon the sole ground that the operator of said truck “negligently and carelessly allowed it to run into and collide with the rear end of plaintiff’s automobile, if you so find, and that as a direct result of such negligence; if any, * * * plaintiff Jean Bramson was injured, * * The operator’s negligence, if any, was therefore the sole negligence for the jury’s consideration. McVey v. St. Louis Public Service Co., Mo.Sup., 336 S.W.2d 524, 527(4).

Failure to have the truck equipped with two sets of adequate brakes, if shown by this record, did not tend to show negligence of the operator in the operation of the truck at the time and place in question as submitted by plaintiff’s Instruction No. 1. There was no evidence that the truck driver knew of any inadequacy of the brakes. It is true that the closing portion of Instruction No. 2 submitted an issue as to the exercise of the highest degree of care by the defendant in the inspection of the brakes on the truck, but plaintiff did not submit her case to the jury on any issue of inadequate brakes. The assignment is overruled.

As to the second assignment, did the instruction erroneously allow the jury to find for defendant simply if the hydraulic brakes failed, without evidence and without requiring a finding that such "brake failure” proximatcly caused the collision? It has been said that “brake failure” under somewhat similar circumstances is not an affirmative defense, but should be considered “as similar to the sole cause situation which has always been held not to be an affirmative defense.” McVey v. St. Louis Public Service Co., supra, 336 S.W.2d 524, 528. The sufficiency of the submission in the instruction of “brake failure” as the proximate cause of the collision was clearly questioned by plaintiff’s assignments (b), (c) and (d) in her motion for a new trial. Although the language used in the motion did not directly conform to the present assignment, yet we find that the present assignment concerning the submission of proximate cause is sufficiently within these assignments.

Appellant argues that the evidence shows that defendant’s truck was operated at approximately 35 m.p.h.; that plaintiff’s automobile had been proceeding at about 30 m.p.h. and had slowed to about 20 m.p.h.; that the truck overtook and collided with the rear of plaintiff’s automobile; that there are no facts in evidence to show that defendant’s operator was not negligent in overtaking and colliding with the rear of plaintiff’s automobile, notwithstanding the “brake failure”; and that the instruction wholly fails to hypothecate facts which excluded the negligence of defendant in the manner charged in the petition, or in the manner submitted by plaintiff's Instruction No. 1. Beezley v. Spiva, Mo.Sup., 313 S.W.2d 691, 696(9).

To sustain the giving of an instruction submitting “brake failure” as the cause of the collision, it would have been necessary to show that (considering the relative speed of the vehicles, the load of the truck and the downgrade) the hydraulic brakes were applied a sufficient distance from the automobile to have stopped the truck before the collision; and that, except for the “brake failure”, the collision would not have occurred. No such evidence appears and we find no evidence from which a jury could properly find that the “brake failure” in question was the “sole”, direct and proximate cause of the collision, yet no such error was assigned when the instruction was given, nor was such an assignment included in plaintiff’s motion for a new trial. Although the giving of an instruction without evidence to support it is, of course, error (Pennington v. Carper, Mo.Sup., 309 S.W.2d 596, 601 [9]), the appellant is in no position to raise this particular issue at this time. Supreme Court Rule 79.03.

However, we do find that the instruction was insufficient and erroneous in its submission of “brake failure” in support of defendant’s claim of “no negligence.” The instruction ignores an issuable fact, as shown by defendant’s evidence, that the operator applied the emergency brake after the hydraulic brakes failed. Such issuable fact should have been submitted to the jury, in connection with the submission of defendant’s claim of “no negligence.” While the operator’s testimony as to the application of the emergency brake was uncontradicted and unimpeached it was for the jury to determine whether the operator had applied the emergency brake and had thereby exercised the highest degree of care after the failure of the hydraulic brakes. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. As will be noted, no facts as to the speed of the truck or its distance from plaintiff’s automobile are required to be found by the instruction to sustain the conclusion and finding submitted, to wit: that, at all times prior to the time that Agee applied his hydraulic brakes, Agee was “in the exercise of the highest degree of care” in the operation of the truck. This was particularly important in this case where there was a total absence of any evidence as to how closely the heavily loaded truck, operating at a speed in excess of plaintiff’s automobile, was following it on the downgrade, when the hydraulic brakes were applied and failed.

Nor does the instruction submit any finding of facts from which the jury could find that after the sudden failure of the hydraulic brakes, “the driver of defendant’s truck was unable, in the highest degree of care, to avoid the accident and collision mentioned in evidence, and was not negligent * * This portion of the instruction submitted only conclusions of fact and law with no submission of what actually happened, or what measures the operator took to stop the truck during this subsequent period. The truck collided with the automobile three times according to plaintiff. As stated, the instruction ignores the defendant’s evidence concerning the operator’s conduct in applying the emergency brake subsequent to the failure of the hydraulic brakes. It is apparent that the instruction wholly fails to submit a hypothecation of facts to exclude the negligence of the operator as charged in the petition and as submitted by plaintiff’s Instruction 1. Compare defendant’s instruction as set out in McVey v. St. Louis Public Service Co., supra, 336 S.W.2d 524, 525. Nor does the instruction submit the converse of any essential issuable fact upon which plaintiff’s case depends under plaintiff’s Instruction No. 1. While it is apparent that defendant’s Instruction No. 2 was drawn on the theory that the sudden and unexpected failure of the hydraulic brake system on the loaded truck supported the claim of “no negligence”, the instruction requires no finding of either fact or law that “except for” such “brake failure” the collision would not have occurred.

In support of the instruction respondent says that “Instruction No. 2 negatived the only essential element of plaintiff’s case which was in controversy, namely, negligence on the part of the driver,” citing McCarty v. Milgrana Food Stores, Inc., Mo.Sup., 252 S.W.2d 343, 344, and other similar cases, where an instruction properly conversed some essential issuable fact necessary to plaintiff’s recovery. Respondent says that it was only necessary to converse the conclusion of negligence submitted by plaintiff’s Instruction No. 1. Respondent further argues that if a conclusion of negligence could be drawn from the facts submitted in plaintiff’s Instruction No. 1, it was only necessary for defendant’s instruction to submit a finding of no negligence. However, such a finding of facts as submitted by plaintiff’s instruction would support a finding of negligence on the part of the truck operator, but the same facts would not support a finding of no negligence. It therefore appears that Instruction No. 2 sought to converse an issue of law, negligence, and not some essential fact upon which plaintiff’s case depended. Respondent further insists that “the instruction (No. 2) specifically submitted to the jury the inability of defendant’s driver, in the exercise of the highest degree of care, to avoid the accident as a result of brake failure.” The instruction submits only a conclusion. Respondent further argues that “plaintiff having submitted the issue of negligence as a factual conclusion, she is in no position to complain that defendant has submitted the converse thereof as explicitly as possible by submitting that defendant was at all times in the exercise of the highest degree of care and was not negligent.” While the issue of no negligence was submitted by defendant’s instruction it was submitted as an issue of law, without any sufficient hypothecation of facts to sustain a submission of “brake failure” as the direct and proximate cause of the collision and without requiring a finding to that effect.

Respondent further says that if plaintiff deemed the instruction ambiguous or lacking in clarity, it was her duty to submit an amplifying or clarifying instruction. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, and other cases. The mentioned rule does not apply where the questioned instruction is erroneous as a matter of law, as it was in this case, since there was no proper submission of “brake failure” as the cause of the collision. Further, it would be difficult indeed to amplify or clarify an instruction submitting an issue unsupported by evidence or to remedy an instruction directing a finding for defendant without a proper submission that the “brake failure” caused the collision. We must and do find that Instruction No. 2 was prejudicially erroneous in directing a verdict for defendant without properly requiring a finding that the “brake failure” caused the collision.

It will not be necessary to consider appellant’s third assignment against the instruction since it clearly appears that the objections there sought to be raised against the instruction were not raised in the trial, or in plaintiff’s motion for a new trial. Supreme Court Rule 79.03.

For prejudicial error in giving defendant’s Instruction No. 2 the judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner. PER CURIAM.

license: Public Domain

text:
    John A. CRUWELL, Emma Cruwell, Louise Cruwell Carson, and William Cruwell, Respondents, v. Nellie M. VAUGHN and John Vaughn, Appellants.
    No. 48621.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Feb. 12, 1962.

      Paul Barnett, Kansas City, for appellants.
    Homer A. Cope and Donald W. Browne, and Walter A. Raymond, Kansas City, for respondents. Raymond, West & Cochrane, Kansas City, of counsel.
   HOLMAN, Commissioner.

Andrew J. Cruwell died intestate on September 6, 1957. His heirs were his five children. Four of his children are plaintiffs herein and the other child, Nellie, is a defendant. Nellie’s husband, John Vaughn, was also made a defendant. On December 26, 1956, Andrew executed a deed which conveyed to Nellie his one-half interest in an 82-acre farm located in Jackson County. An error was subsequently discovered in the description of the land in said deed and on April 10, 1957, Andrew executed another deed to Nellie which conveyed the land by a correct description. In this suit plaintiffs sought to set aside those deeds upon the ground that the grantor was mentally incompetent to transfer said property on said dates, and also that the deeds were procured as a result of undue influence exercised by defendants. The trial court found for plaintiffs upon both issues and entered a judgment and decree setting aside said deeds. Defendants have appealed. We have jurisdiction because title to land is involved and also because of the amount in dispute (it was stipulated that said land was of the value of $1,000 per acre). The nature of our review requires a rather complete statement of the evidence.

Andrew and his wife were divorced in 1947. At that time a property settlement was entered into whereby Andrew received a 17-acre tract of land located on Phelps Road in eastern Jackson County. For a few months he lived in a one-room building (with a dirt floor) located on that tract.

The defendants were married in March 1947. Nellie was interested in her father and apparently desired to work out a plan to improve his living conditions. After some discussions Andrew and defendants entered into a so-called partnership. It was not a true partnership agreement because Andrew was to participate in the profits, if any, but was not to pay any losses. The arrangement was that defendants would build Andrew a concrete block house on the 17-acre tract and obtain city water and electricity for the premises. They also agreed to make certain advancements for Andrew’s living expenses and to help in furnishing the house. There was to be a five-year partnership on the farming operations with defendants furnishing the money to purchase chickens, turkeys, and certain livestock. As a part of the agreement Andrew, on June 25, 1947, deeded the 17-acre tract to Nellie reserving, however, a life estate therein.

The defendants built the house and made other advancements during the five-year period, all of which totaled more than $2,200. There were no profits from the farming enterprise and none of the money advanced was repaid to defendants. During the five years following the expiration of the partnership period Nellie gave her father money and equipment of the total value of about $1,800. In addition, she gave him groceries, clothing, and many small items of household appliances.

During most of the time in question defendants lived in Houston, Texas, but would visit in Missouri at least twice a year. They would always come at Christmas and usually in July. Three of the plaintiffs, John Cruwell, Emma Cruwell, and Louise Carson, lived in Jackson County. William Cru-well lived on a farm near Odessa, about 40 miles from Andrew’s home.

The 82-acre tract of land involved in this case was owned by Andrew’s brother, Ben Cruwell, who died intestate December 18, 1956. Ben’s heirs were a nephew, Ernest A. Cruwell, Jr. and Andrew, each of whom inherited an undivided one-half interest in Ben’s farm. At the time of Ben’s death there was a $7,000 mortgage on the land. Andrew was deeply grieved by Ben’s death and a number of witnesses said that he seemed to lose interest in life after that event. All of the parties agreed that Andrew had drunk intoxicants rather heavily for many years and that he probably drank more following Ben’s death. During the period in question Andrew lived alone on the 17-acre farm. He received an old age assistance check of about $50 per month and supplemented that income by working occasionally for a few days at a time. He worked as a laborer and also did some painting and carpenter work.

In addition to some of the facts heretofore stated plaintiffs presented the following evidence: John A. Cruwell testified that he was a son of Andrew and that he saw his father almost every day the last two or three years before his death because he would stop by and do the chores for him; that his father was 71 years old at the time of his death; that after Ben’s death Andrew drank more heavily, didn’t eat sufficiently, was weak, and “didn’t do hardly anything”; that he would start talking about one subject and would change off on another; that his father said he wanted to die; that he was in the Independence Sanitarium for five days following November 19, 1956, and had to be strapped in bed, and on the first day didn’t recognize anyone; that the doctor said at that time that he had had a stroke; that his father’s memory was bad as evidenced by an incident in Decern-ber 1956 when he had taken his father to the doctor and waited to take him home, hut his father forgot that he was waiting and went home with someone else; that toward the last his father would talk like he thought he had plenty of money; that on the morning of December 26, 1956 (the day the first deed was made) he stopped by his father’s home to see if the hogs had been fed and watered and found defendants there; that his father looked weak, didn’t walk very well, and “I could tell he had been drinking”; that his father had a fifth of whiskey with, him with about a third of it gone; that John Vaughn said they were taking him to the doctor; that thereafter, on occasions, his father had told him that he was going to tie up Ben’s farm so that Ernest would not get it; that on September 6, 1957, his father was found dead at the front door of his home.

Upon cross-examination this witness stated that his mother had the family dinner each Christmas and that his father was not invited; that during one summer he had entertained with a barbecue dinner while his sister Nellie was visiting from Texas and his father was not present because “I didn’t have enough to invite the whole neighborhood.”

Another plaintiff, Emma Cruwell, worked in the office at the Rock Quarry located not far from her father’s home. She testified that during the last two years of her father’s life she would see him two or three times a week as she drove down the road, or on occasions when he would come to the office; that it was the family understanding that when her father conveyed the 17 acres to Nellie she was to take care of him until he died; that her father’s health got steadily worse after he was in the hospital in November 1956; that his conversations would ramble, and after Ben’s death he lost interest in life; that every time she saw her father after he left the hospital in November 1956 he had been drinking and as a result of that drinking “I would say definitely he was not able to carry on any business.”

On cross-examination this witness stated that on the evening of December 26, 1956, John Vaughn told her that Andrew had deeded his part of Ben’s estate to Nellie, and on the afternoon of December 27, four of the children were in the office at the Rock Quarry, at which time “Uncle Ben’s property was discussed.” She also stated that at no time had she given her father any money or supplies.

Plaintiff William Cruwell testified that after his father had been in the hospital in November 1956 he “slipped pretty fast” and, when drinking, wouldn’t talk coherently; that in the spring of 1957 he said he had signed some papers so Ernest wouldn’t get anything. In further describing his father’s condition at that time he stated that “all of a sudden he would want to go somewhere, if you would take him there he didn’t want to go there at all. He would want to see somebody, when you got there he wouldn’t even get out of the car. He would talk about he was going to buy a big farm, he had a lot of money, things that didn’t make sense.” This witness stated that during the last year of his father’s life he saw him from one to four times a week because he farmed some of the 17-acre tract and also farmed the Ben Cruwell land during the 1957 crop season. He also testified that during the Christmas holidays in 1956 his father drank pretty heavily, and he didn’t think he was mentally able to comprehend any type of business •transaction at that time; that he saw his father on April 10, 1957 (the date the second deed was executed) at about 9 a. m. and he was intoxicated and could not talk coherently; that his father always talked like he still owned Ben’s farm and “I don’t think the man even knew he had deeded the place to anybody.”

Thomas L. Casey testified that he had known Andrew for 50 years and that during the last three years of his life Andrew was a heavy drinker; that after his stroke in November 1956 Andrew “seemed like a different kind of man.” The witness -gave as his reasons for making that statement that Andrew used to “stand kidding,” hut after his stroke he would get mad and walk away when someone would kid him, and that on one occasion Andrew wanted to sell him a bunch of hogs but he didn’t buy them because he thought Andrew was pricing them too cheap.

Another neighbor, David Burch, testified that he had known Andrew all his life and saw him about three times a week during 1956 and 1957; that on most of those occasions Andrew had had too much to drink; that after Ben died he appeared depressed and would walk around with his head down; that on one occasion about three months before he died he saw Andrew lose his temper when “some guy was kidding him a little bit.”

Clarence Roman testified that he had been a neighbor of Andrew for 20 years and saw him two or three times a month during 1956 and 1957; that they had a drink together in December 1956; that when Andrew was not drinking he didn’t notice anything unusual about him but when he was drinking he couldn’t keep a straight thought; that about that time he didn’t act like himself, “I would say the man was sick.”

Plaintiffs also offered as a witness D. P. Johnson, another neighbor of Andrew’s. He stated that after Andrew was in the hospital in November he wouldn’t stay on a subject; that they had talked about making a will and Andrew had said that he wanted his children to share alike; that he made that statement the first time in 1956 and again just five or six days before he died.

In the ten years before his death Andrew was in the hospital a number of times. The hospital records were offered in evidence. On January 31, 1947, Andrew was admitted to Independence Sanitarium, the records showing the following diagnosis and comment: “1. Myocarditis, acute, probably due to coronary occlusion. 2. Arteriosclerosis, generalized. 3. Hypertension. 4. Chronic nephritis. 5. Dementia, senile, arteriosclerotic. This patient is totally incoherent and irresponsible, absolutely uncooperative, and has to be restrained.” On February 4, he was discharged from that hospital and admitted to the psychiatric department of Kansas City General Hospital where his brother, Ernest C. Cruwell, gave the following history: “Mr. A. J. Cruwell was placed in the Independence Sanitarium by Dr. H. V. Woods of Independence. He persisted in getting out of bed and roaming the halls endangering the recovery of other patients. He was supposed to have a bad heart and was being treated accordingly. He has visions of dogs, grasshoppers and cats. Thinks everything is on fire.” He was discharged from the municipal hospital on February 14, 1947.

On November 19, 1956, Andrew was found by his brother at his home in an unconscious condition and was taken by ambulance to Independence Sanitarium. The record indicates that upon admission to the hospital he was in a convulsive seizure and totally unconscious. He was dismissed from the hospital on November 24, 1956. No further record evidence will be given concerning this hospitalization as Dr. Hink testified in regard to the same.

Three times in 1957 Andrew was admitted to the County Hospital for short periods of treatment. The first instance was on February 8 when he was taken to the hospital following a seizure which resulted in numbness of the throat and chest. His condition was diagnosed as arteriosclerosis. He was discharged on February 10. He was again admitted to that hospital on February 26 when brought there by a neighbor. The record indicates that he had been drinking and complained of weak spells and blood in his urine. The diagnosis was epilepsy and arteriosclerosis. He was discharged on March 1. His last admission to that hospital was on July 28. His condition was then diagnosed as (1) heat exhaustion, and (2) epilepsy. He was discharged on August 3.

Dr. Fred Hink testified that he had been in the general practice of medicine since 1932; that he saw Andrew when he entered the hospital November 19, 1956, and cared for him until his discharge November 24; that he had never seen him before that time and did not see him again after his discharge; that upon admission to the hospital the patient was unconscious and in a convulsive seizure; that he was suffering from hardening of the arteries and high blood pressure which had caused brain damage; also cardiac insufficiency, acute myocarditis, and “senility, dementia, arteriosclerosis” ; that Mr. Cruwell was irrational and had to be restrained with a strait jacket. This witness expressed the opinion that Andrew was of unsound mind when in the hospital in November 1956, and that his condition would remain stationary or probably get worse. For that reason he was also of the opinion that Andrew was of unsound mind on December 26, 1956, and on April 10, 1957.

Upon cross-examination he stated, upon examination of the 1947 hospital records, that in his opinion Andrew could not have been of sound mind at that time, since the records indicated that he was suffering from senile dementia due to sclerosis.

Plaintiff also read in evidence admissions from the deposition of Nellie Vaughn to the effect that she was of the opinion that her father had d. t.’s from drinking at the time he was in the hospital in November 1956, and that her father drank quite heavily in December because he was grieved over the death of his brother. An admission was also read from the deposition of John Vaughn who stated that they had taken Andrew to the hospital three times with d. t.’s and that while in the hospital Andrew wouldn’t have been in condition to Randle his affairs.

We will next state the evidence offered by defendants. Nellie Vaughn testified concerning the agreement she made with her father in 1947, and the manner in which she had carried out the agreement and the results of the so-called partnership, all of which have been heretofore related. This witness testified further that when she came to Missouri for Christmas in 1956 she saw her father on the afternoon of the 24th, and he had requested that she make an appointment to see Mr. Nourse and that she had made the appointment for the 26th; that she saw her father on the morning of the 25th and that she and her husband came to get her father on the 26th in order to keep the appointment with Mr. Nourse; that as they traveled along in the car her father said, “Nellie, I want to give you and John my half interest in the 82 acres”; that when they arrived at Mr. Nourse’s office her father went into the private office with him and she and her husband stayed in the waiting room and in the hall; that when they came out sometime later “Dad was joking and laughing with Mr. Nourse and said, ‘Well, you know this calls for a dollar,’ and Mr. Nourse took out a silver dollar and gave it to him. My dad then handed me the deed and said, ‘Let’s go to Independence and get it filed.’ ” She further stated that they stopped at a restaurant for lunch and then went to Independence and filed the deed in the recorder’s office; that during lunch “Dad said he wanted me to have the land and that he had other children but he didn’t wish for them to share in this land” because “I had helped him when he needed help, they had not helped him, they had not been to see him”; that on the evening of that day “I told my sister Emma that my father had deeded his interest in the 82 acres to me and that if she and my other sister and brothers would cooperate and help me make the payments on the mortgage and taxes, I would share with them”; that she had told Emma, Louise, and John substantially the same thing the next day at the Rock Quarry, at which time John had said that he thought the 17 acres was “all I should have.”

This witness also stated that she had seen her father intoxicated, hut that on the occasions when she had come to Missouri she had always notified him when she planned to visit him and he was never intoxicated at those times; that he had visited her in Texas for two weeks during Christmas of 1950, and had not drunk during that period; that her father was not drinking on the occasions when she saw him in 1956, and that she had never seen her father do anything queer or unnatural in any way. This witness also testified concerning her receipts and disbursements in connection with the Ben Cruwell farm since the half interest had been deeded to her, but there appears to be no controversy concerning that accounting matter.

John Vaughn testified that as they were en route to the lawyer’s office on the morning of the 26th Mr. Cruwell told them he was going to give them Ben’s property and that “I told him he had other children, he said, T don’t want to leave it to my other children, they haven’t done anything for me and you and Nell have.’ I said, ‘Don’t leave it to me. If you want to leave it to Nell, give it to Nell, but don’t give it to me.’ ” The remainder of this witness’ testimony concerning the making and recording of the deed is very similar to that of his wife and need not be repeated. Mr. Vaughn also stated that he and his wife were back in Missouri on April 4, 1957, at which time they arranged for leasing the farm to William Cruwell, and were in Missouri on a visit again in July 1957. This witness further stated that he had never seen Andrew Cruwell do or say anything at any time that was queer or abnormal, and it was his opinion that in December 1956 Mr. Cruwell was sane.

The attorney who prepared both of the deeds in question, James B. Nourse, testified that he had known Andrew for 15 years and had seen him often during that time; that he drew the deed dated June 25, 1947, by which Andrew conveyed the 17 acres to Mrs. Vaughn; that on the morning of December 26, 1956, when Andrew came into his private office he first sought his advice concerning the Benjamin Cruwell property and asked concerning his interest in the same; that after questioning Andrew concerning Ben’s relatives, the witness advised him that he had an undivided one-half interest in the farm; that Andrew then stated that he wanted to deed his interest therein to Mrs. Vaughn; that he then questioned Andrew about all of his children and what they were doing. “He seemed to have full knowledge of his children that they were doing all right.” He further testified that Andrew stated that Nellie had been especially kind and considerate of him, had shown him attention and affection, and that he wanted to make this an absolute deed rather than reserving a life estate; that Mr. Cruwell explained his reason for making an absolute deed, stating that the property involved financing since there was a mortgage on it, as well as unpaid taxes; that Andrew had brought in the tax bill and another paper that gave the legal description, and the deed was then prepared and Mr. Cruwell signed and acknowledged it before the witness who’ was also a notary public. He then testified concerning the delivery of the deed in about the same manner as related by Mrs. Vaughn.

Mr. Nourse also testified that Andrew consulted him about the personal property in Ben’s estate and told him that he had taken the hogs to his place temporarily so that they would be cared for; that he then prepared an application for appointment as, administrator of Ben’s estate and it was, signed by Andrew and filed in the probate court; that a hearing was held on January 17, 1957, at which Andrew was in attendance and testified at length concerning the property in Ben’s estate; that on that occasion Andrew’s son John, and Ernest, the other heir, appeared and sought appointment as administrator of Ben’s estate; that after a hearing the court appointed Andrew Cru-well and Ernest Cruwell, Jr. as joint administrators. The witness stated further that he acted as attorney for the administrators but that Andrew did much of the work in conducting the administration of the estate; that about March 15 an abstracter, who had been one of the appraisers of Ben’s estate, called his attention to a clerical error in the description of the land in the deed of December 26; that he had advised Andrew Cruwell of this situation and Mr. Cruwell had instructed him to draw a deed correcting the description; that after Mr. Cruwell had properly executed and acknowledged the deed, he (Nourse) mailed it to Nellie at her home in Texas. Mr. Nourse further testified that he saw Andrew many times between December 26, 1956 and May 12, 1957, and that he was never intoxicated and he saw no evidence that he had been drinking; that he had never seen Andrew take a drink of whiskey or beer and had never smelled any odor of alcohol on his breath in the 15 years he had known him; that on December 26, 1956, Andrew was in good condition “mentally, physically and generally, for a man of his age.”

Louise Carson is a plaintiff in this action but testified on behalf of the defendants. Much of her testimony is a repetition of facts heretofore stated. She stated that she had visited with her father during the latter part of 1956, and during that period had seen him from time to time; that he had never said anything that she thought was peculiar or unusual, and for years back he had had a habit of quickly changing the subject of conversation; that he had always recognized her and her child when they would see him. As a matter of impeachment this witness conceded upon cross-examination that she had signed a contract employing attorneys for the plaintiffs which recited that Andrew was mentally imcompetent on December 26, 1956, but she explained that she had not read the contract before signing it.

Defendants also called Ernest A. Cru-well, Jr., a nephew of Andrew’s and the other heir to Ben’s estate. He stated that Andrew, Ben, and his father had all lived within three miles of each other; that in 1955 he had moved to town and after that saw Andrew about once a week; that Andrew always recognized him and often mentioned his (Andrew’s) children and knew who they were; that he and Andrew had been joint administrators of Ben’s estate; that Andrew had sold the hogs belonging to the estate; that he could do any type of farm work; that he never had any trouble following Andrew’s conversations and had never seen him drunk when he was doing any business.

Ted Cowden, a neighbor of Andrew’s, testified that Andrew had worked some for him; that he had told him that Nellie had helped him quite a bit; that he talked about all of his children and knew who they were; that towards the last he seemed to get mixed up on the names of some of the neighbors.

Kit Carson testified that he married Louise in May 1956; that he had had an opportunity to visit with Andrew only on a few occasions but had not seen him do anything peculiar or unusual; that in March 1957 they had met Andrew on the road and showed him their month-old son who was named for Mr. Cruwell and that when they met him two months later he recognized that child and talked about him.

Another neighbor, Raymond Beckman, stated that he had known Andrew for 13 years and Andrew had worked for him “off and on” for 7 years; that several times during 1956 and 1957 Andrew was a guest at his house for dinner; that he had never seen Andrew do anything unusual or irrational and was of the opinion that his mind was sound in 1956 and 1957; that Andrew had worked for him the last time in January 1957.

E. G. Casey stated that he lived about a mile from Andrew and had known him for 40 years; that they visited together once or twice a month; that he had never seen anything unusual or queer in Andrew’s conduct and was of the opinion that he had a sound mind. Upon cross-examination it was brought out that this witness and Andrew often drank together, sometimes for several days in succession.

Another neighbor, Neil Casey, stated that he had known Andrew all his life and had seen him several times a month. He expressed the opinion that Andrew was of sound mind.

At the outset of our consideration of the merits of this appeal we consider it appropriate to state certain established rules applicable to cases of this nature. We have repeatedly said that “ ‘The cancellation of a deed is the exercise “of the most extraordinary power of a court of equity, which ought not to he exercised except in a clear case,” Lastofka et al. v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, loe. cit. 54, and the evidence to justify cancellation should be clear, cogent, and convincing.’ ” Edinger v. Kratzer, Mo.Sup., 175 S.W.2d 807, 813. The burden is upon plaintiffs to present evidence which, when tested by the quoted rules, is sufficient to warrant the cancellation of the deeds. “And, where as here, it is sought to set aside a voluntary deed because grantor lacked the mental capacity to execute a valid instrument of conveyance to his property, the burden is upon those who seek to have it set aside to establish that at the time of its execution grantor lacked such mental capacity. * * * The law differentiates between the mental capacity required of grantor making a deed as a part of the arms-length business transaction and the mental capacity required when grantor is receiving but the satisfaction of heart and mind which comes from benefitting those near and dear to him. In the latter instance if he has sufficient mental capacity to know the extent of his property, his relatives and their respective claims on his bounty, the demands of the law have been satisfied.” And that “mere proof of illnesses, or imperfect memory, or forgetfulness of names and persons, or old age with its attendant physical and intellectual weaknesses, or mental confusion, or arteriosclerosis, either singly or in combination, unless it further appears that grantor did not understand the nature of the instant transactions, and did not with such understanding voluntarily enter into and consummate the transactions, are insufficient to invalidate these deeds.” McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703, 704.

In this equity case, while we give due deference to the findings of the trial chancellor, we cannot escape the duty and responsibility placed upon us to arrive at our own conclusions as to the weight and value of the evidence and determine the facts accordingly. After a careful review of all of the evidence we have concluded that the weight of the evidence is strongly against the finding of the trial chancellor upon both issues, i. e., mental incompetency and undue influence.

We will first consider the evidence relating to grantor’s mental incapacity. It must, of course, be recognized that plaintiffs offered evidence tending to prove that Andrew was of unsound mind at the time of the execution of the deeds and that defendants offered evidence indicating a contrary condition. Much of the evidence on each side came from interested witnesses. Other evidence, such as the opinion testimony of the neighbor-witnesses is not particularly convincing. Unquestionably, the strongest evidence offered by plaintiffs was the hospital records and the opinion testimony of Dr. Hink.

The facts disclosed by the hospital records have been detailed heretofore and need not be restated. Dr. Hink observed Andrew from November 19 to1 24, 1956 while in the Independence Hospital. He expressed the opinion that he was of unsound mind at the time. Based upon that observation, the various hospital records, and particularly upon the diagnosis of “senile dementia due to arteriosclerosis,” Dr. Hink was of the opinion that Andrew was of unsound mind on December 26, 1956, and April 10, 1957. He had not seen Andrew since November 24, 1956. His opinion that Andrew was of unsound mind on the dates the deeds were executed was based upon the fact that his previous illness had been diagnosed as senile dementia due to arteriosclerosis, and he was of the opinion that said condition never gets better but remains stationary or gets worse. The records of Andrew’s 1947 hospitalization show a similar diagnosis. Based upon that record Dr. Hink was of the opinion that Andrew was of unsound mind at that time. It is therefore fair to conclude that (assuming the correctness of the 1947 diagnosis) it was Dr. Hink’s opinion that Andrew was of unsound mind from January 31, 1947 until the date of his death.

While it may be that Andrew was mentally incompetent during the period he was acutely ill in the hospital in November 1956, we do not find Dr. Hink’s testimony convincing as to Andrew’s mental condition at other times. This because those conclusions conflict with much of the convincing evidence hereinafter discussed and are contrary to the undisputed facts to the effect that Andrew was usually able to care for himself, often worked for various employers, and led a more or less normal life

There are a number of facts and circumstances which tend to support a finding that Andrew was capable of making and did make valid conveyances to Nellie. In the first place there was a reasonable basis for Andrew to prefer Nellie over his other children. She had been loyal and good to him for ten years and during most of that time his other children did not pay much attention to him. Nellie and Andrew had a strong affection for each other. It is also significant that Nellie immediately told the other children about the conveyance. That conduct did not indicate that she had any feeling of having taken advantage of a person who was mentally incompetent. We note, also, that there is no contention but that Andrew (except when acutely ill in the hospital) always knew his children, talked of them, and had them in mind.

We are also impressed by the fact that the probate court appointed Andrew co-administrator of Ben’s estate on January 17, 1957. There were three applicants for that appointment and the court held a hearing to determine who should be appointed. Andrew testified at length about the property in the estate. If Andrew had been of unsound mind we believe the probate judge would have discovered that condition and would not have appointed him. It is also significant that he fully performed his duties as administrator.

As heretofore indicated we give considerable weight to the fact that Andrew was able to live alone, prepare his meals, work for various employers from time to time, care for his chickens and hogs, and, in general, lead a substantially normal life. That type of conduct is not consistent with the view that he was of unsound mind.

We are also of the opinion that the testimony of three of defendants’ witnesses is especially significant and entitled to considerable weight. They are James B. Nourse, Louise Carson, and Ernest A. Cru-well, Jr. We will briefly discuss their testimony.

It was the burden of plaintiffs to establish Andrew’s incompetency at the time of the execution of the deeds. The person in the most favorable position to tell of his condition at that time was Mr. Nourse. He talked with Andrew for a period of two or three hours on December 26 just prior to the execution of the deed. He questioned Andrew in detail about Ben’s property and relatives and also concerning his (Andrew’s) children. If Andrew had been of unsound mind at that time it is inconceivable that an experienced attorney such as Mr. Nourse would not have discovered that condition under those circumstances. Mr. Nourse was also with him on a number of occasions during the administration of Ben’s estate and was with him at the time of the execution of the second deed on April 10, 1957. The substance of his testimony is that Andrew voluntarily made the conveyances with full knowledge of what he was doing, with his other children in mind, and was not under the influence of alcohol at the time either deed was executed. If his testimony is to be believed the plaintiffs cannot prevail. While it is true that he had known Andrew and defendants for a number of years and represented defendants for a time in this case (he withdrew as counsel when it appeared that the suit would be tried and that he would, of course, be a witness) we are unable to find any sufficient reason for refusing to give credit to his testimony.

Ernest A. Cruwell, Jr. was a relative who knew Andrew well but had no interest in this case. He worked with Andrew in connection with the administration of Ben’s estate. Ernest said Andrew talked with him about his children and had said that Nellie had taken care of him. He also stated that Andrew could do any kind of work; that he never saw him drunk when he was transacting any business, and that he never had any difficulty following Andrew’s conversations.

Louise Carson was a plaintiff but testified for defendants. This was clearly against her financial interest. She stated that her father always recognized her and her child; that she never heard him say anything which she considered peculiar or unusual.

While we recognize that each case must be determined according to its own facts, we have compared the facts in this case with certain other cases in which deeds were held to be valid and are of the view that the evidence here is less favorable to plaintiffs than it was to the plaintiffs in those cases. Said cases are Edinger v. Kratzer, supra, McCoy v. McCoy, supra, Walton v. Van Camp, Mo.Sup., 283 S.W.2d 493, and Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69.

As heretofore indicated we find that plaintiffs have failed to carry the burden of proving by convincing evidence that Andrew was mentally incompetent at the time he executed the deeds in question. The evidence preponderates in favor of defendants. We accordingly rule that defendants are entitled to prevail upon that issue.

We also think it is clear that the finding upon the issue of undue influence should be for the defendants. The defendants were in Texas until two days before the first deed was executed. Their only connection with the transaction was that Nellie, at Andrew’s request, made the appointment with Mr. Nourse and she and her husband took him to the attorney’s office and, although not present were nearby at the time the deed was executed. According to the testimony defendants did not know of Andrew’s intention to make the deed until they were on the way to Mr. Nourse’s office. Defendants were in Texas and had no connection with the execution of the second deed. It is therefore apparent that there is no direct evidence of undue influence and we do not think the evidence heretofore stated is sufficient from which a court could infer such influence. “The mere opportunity to influence, * * * unsupported by evidence showing its actual existence, is not sufficient to invalidate a deed.” Walton v. Van Camp, Mo.Sup., 283 S.W.2d 493, 502.

Plaintiffs say they proved that a confidential relationship existed between Andrew and Nellie. We do not agree. There is no evidence that Nellie ever transacted any business for her father. She merely gave him money and items of personal property for his use and comfort. The so-called partnership had expired almost five years before the deeds were made. Plaintiffs also point out that D. P. Johnson testified that Andrew, in 1956, had told him he wanted his children to share alike and that since the deed made a contrary disposition, that evidence would warrant an inference of undue influence. While we think the statement Andrew made to Mr. Johnson is properly to be considered upon this issue, we certainly do not consider it decisive. For the reasons stated we rule that the evidence was not sufficient to warrant a finding that the deeds in question were procured by the exercise of undue influence upon the grantor.

The judgment is reversed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: LEEDY, Judge.

text:
    Charles E. WEIR, a Minor, by Virgil P. Weir, Guardian, Appellant, v. Hattie Louise KICKBUSH, State Farm Mutual Insurance Company, and Cedric Siegfried, Respondents.
    No. 48642.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1962.
    Rehearing Denied Feb. 12, 1962.
    Rufus Burrus, Independence, W. Raleigh Gough, Kansas City, for appellant.
    Thos. E. Deacy and Deacy & Deacy, Kansas City, for respondents, Hattie Louise Kickbush and State Farm Mutual Automobile Ins. Co.
    Harry P. Thomson, Jr., John R. Cas-lavka, Kansas City, for respondent, Cedric Siegfried. Shughart, Thomson, Stark & Kilroy, Kansas City, of counsel.
   LEEDY, Judge.

Action in three counts by Charles E. Weir, a minor, by his guardian, Virgil P. Weir, as plaintiff, against Hattie Louise Kickbush (the defendant in the minor’s prior action wherein he was awarded judgment for $6,000 for personal injuries), State Farm Mutual Insurance Company, her insurance carrier, and Cedric Siegfried, the minor’s attorney in the prior action. Under Count I plaintiff sought to set aside the $6,000 judgment in his favor in the former action; Count II alternatively sought to set aside the purported satisfaction of the judgment just mentioned; and by Count III plaintiff sought to recover $50,000 damages on his original cause of action for personal injuries sustained as the result of having been struck by Mrs. Kickbush’s car through her negligence while driving the same.

The court ordered that Counts I and II be severed from Count III for the purposes of trial, and that separate trial be first held on Counts I and II, and that there be no trial with respect to Count III until a final determination of Counts I and II be made. Trial proceeded on Counts I and II as thus ordered, at the conclusion of which the court made findings of fact and gave conclusions of law, and in conformity therewith entered judgment in favor of Mrs. Kickbush and against plaintiff with respect to Count I, and also entered judgment in favor of all the defendants and against plaintiff with respect to Count II; and further ordering “that the judgments herein rendered on said Counts I and II be separate and final judgments for the purpose of appeal within the meaning of Section 512.020, Missouri Revised Statutes 1949, and Rule 3.29 [now numbered 82.06], Rules of the Supreme Court.”

After an unavailing motion for a new trial, plaintiff appealed. Through error, his appeal came here originally, but, lacking jurisdiction, this court transferred it to the Kansas City Court of Appeals, where the action of the trial court was affirmed. 340 S.W.2d 422. We ordered transfer, under Art. V, § 10, Const, of Mo., V.A.M.S., on application of plaintiff, so the cause is now before us as if the appeal had been direct from the trial court. New or supplemental briefs have been filed in each appellate tribunal successively, so that, on the present submission, their number totals eleven, and they contain in the aggregate more than 300 pages, but our task is less formidable than would be indicated by this array because, in the view we take, the first question is the determinative one, and for that reason we do not reach the others.

The minor’s prior action was a proceeding in the Circuit Court of Jackson County at Independence. It was commenced and prosecuted by the next friend duly appointed for him in such suit, his father, Charles H. Weir. It was filed February 9, 1954, and styled “Charles Earl Weir, a minor, by his father and next friend, Charles H. Weir, plaintiff vs. Hattie Louise Kickbush, defendant, No. 116-441.” The petition alleged that on January 6, 1954, plaintiff suffered the grievous and severe bodily injuries therein enumerated while walking across 23rd Street at or near Hawthorn Street in Independence as a result of being struck by an automobile allegedly being operated in a negligent manner by the defendant, and praying damages in the sum of $50,000. The petition was signed by Cedric Siegfried as attorney for plaintiff.

The next entry after the filing of the case was an order made April 9, 1954, by which the defendant’s motion for a more definite statement with respect to paragraphs 2 and 3 of the petition was sus-fained, and the plaintiff granted leave to file an amended petition within 20 days; but no amended petition was ever filed. Such was the state of the record on August 30, 1954, when the judgment now challenged was rendered. It consisted of two parts, the first of which was a regular judgment entry reciting the coming on of -the cause for trial, the appearances of the parties, waiver of jury, and that “the court having heard the evidence and being fully advised in the premises, finds the issues herein in favor of the plaintiff and against the defendant and assesses plaintiff’s damages at the sum of $6,000.00”; wherefore it was ordered and adjudged that plaintiff have and recover of and from the defendant said sum together with costs, etc., which judgment was then and there satisfied in open court by the defendant paying unto the next friend “and his attorney of record, Cedric Siegfried,” the sum of $6,-000, and the next friend’s acknowledgement thereof. The second part (immediately following) recites the fact of the foregoing trial, the rendition of judgment for plaintiff for $6,000, and satisfaction thereof in open court, then orders, adjudges and decrees that “Cedric Siegfried ⅛ * * receive into his hands as trustee for the benefit and use of the plaintiff * * the said sum of $6,000.00 from the defendant herein, and out of said proceeds to first pay and discharge” his own attorney’s fee [not fixed in amount] “and thereafter proceed as quickly as possible to pay and ■discharge the medical bills and fees due for treatment of said minor plaintiff, and thereafter with any overplus or sums remaining of said $6,000.00 to pay the same over into the hands of a Guardian and Curator under appointment by the Probate •Court of Jackson County, Missouri, or •other court of competent jurisdiction, if .any, under subsequent orders.”

Siegfried, purporting to act as trustee under the foregoing order of appointment, disbursed the proceeds of the $6,000 judgment in this way: 40% thereof to himself as and for an attorney fee, $2400; $1494 in payment of medical, hospital and nursing expenses (reduced by compromise and settlement from approximately $2500); $30 for filing fee incident to the opening of the minor’s guardianship in the probate court, and for premium on bond of the guardian, Virgil P. Weir. These disbursements aggregate $3924, leaving a balance of $2076. On November 8, 1954, Siegfried delivered his check for that amount to the guardian, who, in writing, acknowledged receipt of the check, and approved the trustee’s accounting and its accuracy. (This check was never cashed, but at the beginning of the trial was tendered back, which tender was refused.) On May 13, 1955, Siegfried filed in the circuit court in said cause an instrument styled “Report of Trustee concerning Minor’s funds” (reflecting disbursements as above stated), which the court approved on that date, but four days later, on May 17, 1955, said court, on its own motion, set aside the order entered May 13 approving said report.

On September 2, 1954 Virgil P. Weir, the grandfather, was duly appointed as the minor’s guardian upon application therefor prepared by Siegfried and signed by the grandfather on August 31, 1954 (the day after the rendition of the judgment). As the result of the guardian’s dissatisfaction with the amount of the judgment, and the minor fraction of the proceeds thereof tendered him as the share of his ward, the institution of the present action was authorized by the probate court on May 10, 1955, and on July 14, 1955, it was filed in the Circuit Court of Jackson County at Kansas City, where, as previously indicated, it eventuated adversely to plaintiff.

The guardian’s first attack upon the validity of the prior judgment (as made below and preserved for appellate review) is that challenging the jurisdiction of the Independence court to render the particular judgment entered. That such court had jurisdiction of both subject matter and of the parties is not disputed, nor is the fact that the judgment itself (apart from the addendum purporting to appoint a trustee) is regular on its face. The supposed jurisdictional infirmity relied on by plaintiff is asserted to be this: That said judgment “was not what it purported to be on its face —a judgment rendered pursuant to trial— but was a mere attempted approval of a compromise settlement,” which compromise settlement was invalid because effected by the next friend, whereas under “the applicable statutory law in 1954 (the date of the rendition of the judgment) only a guardian appointed by a probate court could, with the approval of the probate court, make a valid compromise settlement of a cause of action of the minor he represented; no valid compromise could be effected by a next friend, acting with the approval of the circuit court.”

The factual support for the first branch of this contention appears from certain documentary evidence adduced by plaintiff at the trial of the instant case, to-wit, the transcript of the testimony heard and proceedings had in the Independence court at the hearing of August 30, 1954, in conformity with which said prior judgment purports to have been rendered. From such transcript it is quite, clear that said judgment was in fact based on an agreement between the next friend and the defendant (who was represented by her insurance carrier’s counsel) to compromise and settle the minor’s damage suit for the very amount for which judgment was rendered, $6,000.

The Missouri cases dealing with the subject hold that one acting as next friend for an infant plaintiff has no authority to bind the infant by a contract for attorney’s fees. Houck v. Bridwell, 28 Mo.App. 644; Fenn v. Hart Dairy Co., 231 Mo.App. 1005, 83 S.W.2d 120, 127; Dillon v. Bowles, 77 Mo. 603, 609. The rationale of such cases is that the power to bind an infant by contract made on his behalf rests with the guardian of his person and estate, or curator of his estate, under the supervision and with the sanction of the probate court. This in consequence of two considerations in particular: (a) The silence of the statutes on the authority of a next friend to make a contract for legal services on behalf of an infant, and (b) what was § 2579, R.S.1879, at the time Houck v. Bridwell, supra, was decided (which section remained unchanged in 1954, though then designated as § 457.420, RSMo 1949 and V.A.M.S.), providing that “It shall be the duty of all guardians and curators to represent their wards in all legal proceedings, to sue for, damand and receive all their dues, give discharges therefor, and compound the same upon such terms as may be authorized by the probate court; and all matters committed to their care, they shall prosecute and defend for their wards without further admittance, in the several courts of this state.” As pointed out in the-Houck case, the fact that an infant plaintiff had no guardian or curator appointed' to take charge of his or her estate “cannot enlarge either the duties or powers of a. guardian [ad litem] or next friend appointed by the circuit court for the prosecution of a suit.”

The Fenn case was decided by the St.. Louis Court of Appeals. It upheld the sus-tention of a demurrer to the plaintiff-attorney’s petition to recover under the attorney’s lien statutes for legal services in a case brought by him for a minor, through the latter’s next friend, his father. In so doing the court, after citing the statute we have just quoted and saying that its purpose “is-to subject the affairs of minors to-the supervision of the probate court,” continued thus: “The law, therefore, affords the minor the means of bringing a suit promptly through his natural guardians or guardian, next friend, or guardian and curator, but requires that his contracts in connection therewith shall be made through a duly appointed guardian or curator under the supervision of the probate court. No authority to make a contract for attorney’s - services for a minor plaintiff is given to a-next friend. To hold that a next friend has . such authority would be directly contrary to the provisions of the statute mentioned, . and would leave the minor without the su- ■ pervising protection of the probate court ■which the law provides for him.” (Emphasis supplied.)

The latest pronouncement on the general subject, Campbell v. Campbell, 350 Mo. 169, 165 S.W.2d 851, unlike the cases above cited, did not involve a contract for attorney’s fees, but subject matter of the precise nature plaintiff contends is here involved, namely, the compromise and settlement of litigation pending in the circuit ■court. In Campbell the minor, through her mother as next friend, had brought suit against her father (the next friend’s divorced husband) to quiet and determine title to certain realty, alleging that she, the minor, was the owner of the described real estate, etc., and praying that she be adjudged to be the absolute owner in fee simple of the realty, and that defendant had no right, title or interest therein.

A stipulation and contract for the settlement of that suit was negotiated and filed with the circuit clerk. It was signed and executed on the minor’s behalf by her next friend. Pursuant to the stipulation a judgment was rendered against the minor which vested title to the realty in the minor’s adversary, the defendant. The judgment recited, among other things: “This cause having heretofore been settled and a stipulation of said settlement having been filed herein, signed and executed by all the parties in interest hereto and the court being fully advised in the premises, having heard the evidence and argument of counsel, doth find, adjudge and decree ⅜ * ⅜,” etc. After attaining her majority the minor sought and obtained review of the judgment by writ of error (sued out within three years after the removal of her disability). On such review this court reaffirmed the doctrine of the attorney’s fee cases herein-above cited, and applied it to the contract by which the Campbell litigation was ostensibly settled. In setting aside the judgment so rendered, this court held that the next friend had no authority to make the contract of settlement, and the circuit court had no jurisdiction to approve the same since the management of the estate of the minor was within the exclusive jurisdiction of the probate court. (There, as here, the minor had no legally appointed guardian.) In so ruling, this court said (165 S.W.2d l.c. 857) : “The mere fact that the judgment recites that evidence was heard is wholly immaterial in view of the express terms of the judgment, showing that it was based upon the stipulation and agreement which the circuit court was without jurisdiction to approve. The management and control of the estate of the minor was within the exclusive jurisdiction of the probate court. § 34, Art. VI, Constitution of Missouri, Mo.R.S.A.; § 2449, R.S.1939, Mo. R.S.A. 2449, Mo.St.Ann. § 2058, p. 2648; Art. 16, Chap. 1, R.S.1939, § 374 et seq., Mo.R.S.A. § 374 et seq.; West St. Louis Trust Co. of St. Louis v. Brokaw, 232 Mo.App. 209, 102 S.W.2d 792, 796(5). See, also, Heady v. Crouse, 203 Mo. 100, 100 S.W. 1052, 120 Am.St.Rep. 643. Jurisdiction could not be conferred on the circuit court by agreement of the parties or their attorneys. See State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, 129 Am.St.Rep. 536; In re Buckles, 331 Mo. 405, 53 S.W.2d 1055, 1057; Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840, 842. * * * In addition, the stipulation and contract was not binding upon the infant plaintiff, since her next friend was without authority to contract on her behalf or to waive any of her rights in and to the real estate claimed.” (Emphasis supplied.)

It seems to be practically conceded — as indeed it would have to be — that if it appeared from the face of the judgment in the instant case (as it did in Campbell) that it was rendered pursuant to a contract of settlement entered into with the next friend, then Campbell would be controlling. Obviously, it does not so appear, but plaintiff takes the position that this constitutes no impediment to his claim for the reason that proof of the fact that the judgment was so rendered sufficiently and satisfactorily appears from the reporter’s transcript to which reference has already been made. We are constrained to so hold.

The transcript just referred to shows that the hearing was brief and perfunctory — actually only ten pages of testimony. The only witnesses called were the next friend and his wife (the parents of the minor), and the major portion of their testimony had to do with the settlement of the minor’s case, and the dismissal of their action for loss of the minor’s services upon the payment to them of $750. With regard to whether the $6,000 judgment was based on an agreed settlement, the next friend testified on direct examination by Mr. Siegfried, as follows:

“Q Mrs. Kickbush has agreed to and is prepared to at this time pay you a sum of money to compensate you for the injuries suffered by your son? A Yes.
“Q But you and your wife have received a sum of money in a separate lawsuit for the loss of your child’s services? A Yes.
“Q In this case, the boy is to receive a sum of money, also? A Yes.
“Q What is that sum of money? A $6,000.00.
“Q That is a separate sum distinct from what you and your wife receive? A Yes.
“Q You understand that? A Yes.
“Q That is an agreeable figure with you? A Yes, it is, * * *.
"Q In this particular case you understand you have brought the action as your son’s father and next friend? A Yes.
“Q And is that settlement agreeable with you and Mrs. Weir?
"A Yes.
“Q You feel that you understand the terms of it? A Yes.
“Q The sums of money as they are-paid at the conclusion of this case, according to your understanding the-$6,000.00 will be delivered to your attorney? A That’s right.
“Q And out of that money he will' pay your counsel fees and the medical expense; is that your understanding-of it? A Yes.
“Q And is that agreeable with you ?' A Yes.”

The following excerpts are from his. cross-examination:

“Q You understand that if the court-enters this judgment here today in your son’s behalf in the sum of $6,000.-00, you can never recover any further-sums of money in your son’s behalf?
“A That is right.
“Q You have discussed this matter with your attorney, Mr. Siegfried? A. Yes.
“Q You have discussed it with your wife? A Yes.
“Q So you feel it is to your son’s; best interest to ask the court to enter this judgment at this time in the sum of $6,000.00? A Yes, I do.”

The minor’s mother testified that she had' been present in the courtroom and heard her husband’s testimony, and that his answers were consistent with her views and' feelings. After stating that she and her husband were receiving $750 in settlement and compromise of their action for the loss, of services of their son, her examination, proceeded as follows:

“Q And $6,000.00 is being paid to your son for his benefit as the result of his injuries? A Yes.
“Q Is that sum agreeable with you ? A Yes.
“Q Is it agreeable with you also, that this court turn over to your attor•ney the $6,000.00 belonging to your son for the purpose of paying the attorney’s fees and the medical expenses, and the remainder of the $6,000.00 to be turned over to a guardian to be appointed by the Probate Judge in Jackson County? A Yes, sir.
“Q Is that your understanding? A Yes.
“Q Is that agreeable to you? A Yes.”
At the conclusion of the testimony of this witness the following occurred:
“MR. BIRMINGHAM: I think for the record we should show that as attorney for Hattie Louise Kickbush and the State Farm Mutual Automobile Insurance Company I am handing Mr. Charles H. Weir and his attorney, Cedric Siegfried, our check No. 761941 in the sum of $6,000.00 and ask that they each acknowledge receipt of that check.
“MR. SIEGFRIED: Yes, we acknowledge receipt of that check. * * *
“THE COURT: Judgment for plaintiff $6,000.00, satisfied in open court-Cedric Siegfried appointed as trustee for the minor plaintiff to receive the amount of the judgment, to pay therefrom the doctor bills and attorney’s fees, and to pay the balance to a guardian to be appointed by the Probate Court.”

The facts surrounding the accident itself and the nature and extent of the resulting injuries to the minor were given ■sketchily and in a most inconclusive manner by the one witness who testified in that regard (the father). Plaintiff’s counsel’s examination of such witness respecting the son’s injuries was limited to a single question and answer, as follows:

“Q In what way [was he injured] ? A Skull fracture; his liver was ruptured, cut in two places, and his spleen was stretched and removed.”

Later on, the court made these inquiries and received these answers from the witness :

“Q Did he recover from his skull fracture? A Yes.
“Q This accident happened January 6, 1954? A Yes.
“Q Was he able to go to school any this year since the accident? A I believe he went to school one month since the accident.
“Q He got along all right, did he?
“A He got along very good. He still had a few spells with his stomach the last part of school.
“Q. This accident hasn’t affected his mind in any way, has it ? A No, sir.”

No doctor or medical witness was called, nor were the extensive hospital records and medical reports offered. (At the trial of the present case, Mr. Siegfried testified that, although not shown by the transcript of the original trial, he did hand up to the bench Dr. Mosser’s report of January 28, 1954— this was, in fact, a letter addressed to Mr. Siegfried concerning the minor’s injuries and condition as of the date mentioned.)

Siegfried contends this action could not be maintained in the Circuit Court of Jackson County at Kansas City because it constituted a collateral attack upon the Independence judgment. We do not agree. The Independence judgment was one rendered by the Circuit Court of Jackson County, and the present action to set it aside was properly brought in the circuit court of that county. The fact that that court is a multiple judge court, and sitting in divisions in different places within the county does not mean that only the division of the court that rendered the judgment is competent to set it aside on direct attack, as here.

Nor is there anything to the point that the order of the probate court authorized the guardian to bring an action only against defendant Kickbush, and not against Siegfried. It is true the order does not designate Siegfried, but, as plaintiff points out, the failure to obtain authorization specifying all the defendants would, under Rule 55.15, V.A.M.R., merely go to “the authority of a party to sue or be sued in a representative capacity,” and would have to be raised by “specific negative averment,” and this was not done.

We think that in view of the evidence and proceedings as reflected by the reporter’s transcript, and hereinabove condensed and excerpted, it is idle to contend that the judgment entered was not one based on compromise and settlement of the minor’s claim for the agreed sum of $6,000. The transcript cannot be fairly read and interpreted in any other light. Accordingly, we are of the opinion and hold that upon direct attack, as here, the recitals of the judgment indicating it was rendered pursuant to a trial of the issues rather than upon compromise agreement must yield to contrary, impeaching facts indisputably disclosed by an authentic, statutorily authorized (section 485.050, RSMo and V.A.M.S.) stenographic record of the very proceedings whereon said judgment purports to have been founded.

In holding as above indicated, we have not overlooked Ebenreck v. Union Service Co., (Mo.App.) 276 S.W.2d 607, a decision of the St. Louis Court of Appeals which is strongly urged upon us by defendants. It was apparently persuasive with the Kansas City Court of Appeals as will appear from its opinion, 340 S.W.2d 1. c. 427, 428. The question in Ebenreck was whether a minor’s prior judgment for $1,000 in a personal injury action could be set aside on the ground (among others) that there had been no real hearing or judicial determination in the prior action, but merely a formal approval of settlement reached by attorneys. The St. Louis Court of Appeals answered that question in the negative. There it appeared that when the parties appeared and the case was called, plaintiff’s counsel announced “to the court that the parties had arrived at a settlement and desired to submit the matter to the court.” The opinion then reviewed the evidence introduced at the ensuing hearing or trial, and concluded that the minor was not entitled to have the prior judgment set aside on the ground mentioned. Unless counsel’s statement above quoted was overridden by the evidence so as to show that such settlement was not, in fact, the basis whereon the court entered judgment, then the case conflicts with the principles applied in Campbell, and, in turn, with the case at bar; but our view that there is nothing in the transcript to justify finding that the prior judgment in the instant minor’s case resulted from a real hearing or judicial determination of the facts makes it unnecessary for us to determine at this time whether the conflict just suggested does, in fact, exist, and for that reason we pass Eben-reck without further comment — and without approving it.

Our views are buttressed by legislation passed subsequent to the rendition of the prior judgment in this case. It will be recalled that section 306 of our new Probate Code (Laws 1955 p. 385, effective January 1, 1956), which became section 475.135, RSMo and V.A.M.S., provided as follows:

“No contract shall bind the estate of any minor or incompetent unless the same is made by the guardian with the approval of the court or made by the ward with the consent of the guardian and approval of the court.”

It would seem to be obvious that the object and purpose in enacting this particular section was to spell out more plainly the exclusive jurisdiction of probate courts then and theretofore existing over the contracts of minors, and to expressly invalidate contracts for the use of any of a minor’s funds without the approval of the probate court, and thus curb any existing practices to the contrary — and undoubtedly there were such, albeit irregular and unsanctioned by the law.

This section was amended in 1959 by inserting the words “except as provided for in sections 507.182 and 507.184” following the word “minor” in the first line thereof. Laws 1959, H.B. No. 537. Sections 507.-182 and 507.184 (enacted as part of said H.B. No. 537) respectively authorize a next friend or guardian to employ an attorney and incur expenses in the preparation and prosecution of a minor’s claims subject to approval of the court, and enlarge the powers of the next friend or guardian by including the authority to settle a minor’s claim subject to the approval of the court, and to execute a release or satisfaction and discharge of a judgment, and authorize the ■court to approve or disapprove a proposed contract of settlement, etc. This legislation, therefore, continues the exclusive jurisdiction in the probate court over the contracts of a minor, except contracts compromising his suits and contracts made with an attorney. As this legislation was not in effect at the time the present litigation arose, we are not concerned with its application here, but it is referred to merely for the purpose above mentioned.

Having determined that the court was without jurisdiction to render the particular judgment entered, it is unnecessary to consider the alternative relief sought under Count II of the petition with respect to the satisfaction of said judgment, and the anomalous order appointing a trustee to receive and disburse the proceeds of the judgment. That the latter was absolutely void as having been beyond the jurisdiction of the court to make is made clear by the well reasoned case of West St. Louis Trust Co. of St. Louis v. Brokaw, 232 Mo.App. 209, 102 S.W.2d 792.

From what has been said it follows that the judgment was a nullity, and the minor and his guardian are not bound by it, and it constitutes no defense to the prosecution of the minor’s cause of action asserted in Count III of his petition. The judgment of the circuit court upholding its validity is, therefore, reversed and the cause remanded with directions to enter a judgment in conformity with the views herein expressed.

All concur.