author: HOLLINGSWORTH, Judge. EAGER, Chief Justice

text:
    STATE of Missouri ex rel. PETE RHODES SUPPLY COMPANY, a Corporation, Relator, v. Honorable Joe C. CRAIN, Judge of the Circuit Court of Christian County, Missouri, Respondent.
    No. 50028.
    Supreme Court of Missouri, En Bane.
    Dec. 9, 1963.
    Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for petitioner.
    Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Jerry L. Red-fern, Springfield, for respondent.
   HOLLINGSWORTH, Judge.

This is a proceeding in mandamus. It arises out of the refusal of respondent, Judge of the Circuit Court of Christian County, to require the plaintiff in an action for damages for wrongful death pending in that court, entitled “Audrey F. Merideth, Plaintiff, v. Pete Rhodes Supply Company, a Corporation, Defendant,” to make discovery to the extent of a pretrial interrogatory propounded in writing to her by defendant in said action, under this court’s Civil Rules 56.01 and 57.01, V.A.M.R.

The interrogatory so propounded was: “Do you or your attorneys know the names of any witnesses to this accident? If so, what are the names and addresses of the witnesses?”, to which plaintiff answered in writing: “I do not know the names of any persons who witnessed the accident. I do not know if my attorneys have located any witness or witnesses to the accident during their investigation of the case. I have heard of several people who were present at the scene of the accident, including the Highway Patrol and Sheriff of Christian County.”

Defendant in said action then filed its motion to require plaintiff to make her answer more definite and certain by making complete answer to the question. That motion was denied on grounds, as stated in the return herein filed by respondent, “that the names of witnesses to an automobile accident which are discovered by an attorney during the attorney’s investigation of the cause for the client and known solely to the attorney are not subject to discovery by an interrogatory directed to the attorney’s client because the identity and names of such witnesses are privileged matter and constitute ‘work product.’ ”

Thereafter, defendant in said action sought mandamus in the Springfield Court of Appeals. That court summarily denied the writ, following which defendant, as relator (and hereinafter so designated), filed the instant proceeding in this court, jurisdiction of which is vested in this court under Art. V, § 4, of the Constitution of Missouri, 4 RSMo 1959 p. 4822, V.A.M.S. Our alternative writ issued. Respondent’s return to the alternative writ and relator’s reply to the return were duly filed, this cause was briefed by both parties and in due course orally argued and submitted.

The action out of which this proceeding arises was brought by Mrs. Audrey F. Meri-deth to recover damages from relator in the sum of $25,000 for the wrongful death of her husband, Leonard Kermitt Merideth, allegedly caused by and resulting from the collision of a southbound motor vehicle operated by the latter upon a public highway in Christian County and a northbound motor vehicle operated by an agent or servant of relator in the course of his employment. The petition alleged that the collision was directly caused by negligence of the operator of relator’s vehicle in seven alleged respects.

Prior to adoption of S.Ct. Rules 56.01 and 57.01, pretrial right of discovery by means of written interrogatories was governed by statute, § 510.020, R.S.Mo 1959, V.A.M.S. Under the provisions of that statute we had deemed it necessary to hold: “It seems clear from the foregoing cases, that the names of witnesses to an accident which are in the possession of one of the parties to a suit may not be obtained by the other party either by interrogatories or by deposition, except in so far as the party called upon to produce or state the names has personal knowledge that the named persons were witnesses to, or were present at the scene of, and at the time of, the casualty. It must follow that, the names of purported eyewitnesses to an accident may not be obtained by a party (to a suit involving that accident) from a third person, where the third person’s knowledge as to whether the named witnesses were in fact witnesses to the casualty is based upon hearsay.” Johnson v. Cox (1953), Mo., 262 S.W.2d 13, 17. And, in one of the cases therein cited, State ex rel. Williams v. Buzard (1945), 354 Mo. 719, 190 S.W.2d 907, on motion for rehearing, we had stated, loe. cit. 912: “The spirit of the new (legislative) code is to allow essential information, admissible in evidence, to be obtained by the less expensive method of interrogatories whenever that is reasonable and proper.” Numerous other cases not here necessary to cite held to the same general effect.

Those cases, correctly decided under the discovery provisions of the 1943 (effective January 1, 1945) legislative civil code, § 510.020, supra, are however no longer controlling. In 1945, hard upon adoption of the present Constitution by the people of Missouri, which contained a new provision, Art. V, § 5, authorizing the Supreme Court to “establish rules of practice and procedure for all courts”, a committee, thereafter succeeded by a reviewing committee, was appointed to draft and submit proposed rules of civil practice and procedure. After years of study and exhaustive research, the latter committee, aided by the earlier work of the former committee, and by the bench and bar of this State, submitted its report and the Civil Rules of Practice and Procedure proposed by it, which were adopted in 1959 and became effective April 1, 1960. These rules were patterned in the main from Federal Rules of Procedure adopted in 1937, as thereafter supplemented and amended. Among the rules by this court thus adopted were Rules 56.01, providing for discovery under interrogatories, taken in substance from Federal Rule 33 and certain recommended amendments, and Rule 57.01(b), providing for discovery by depositions, taken in part from Federal Rule 26(b).

Rule 56.01, supra, 4 RSMo 1959, p. 4975, Vernon’s Annotated Missouri Rules (V.A. M.R. 41-82, p. 189) in material part, provides :

“Interrogatories may relate to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party. Interrogatories may require as a part of or with the answers copies of all statements concerning the action or its subject matter previously given by the interrogating party, or copies of such documents, papers, books, accounts, letters, or photographs, not privileged, as are relevant to the answers required, unless opportunity for their examination and copying be afforded. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as justice may require.”

The “Committee Note and Comment”, V.A.M.R. 41-82, pp. 189-190, states in part: “[Tjhis rule broadens the scope of discovery on written interrogatories by adopting Rule 33 of the Federal Rules of Civil Procedure and a portion of the amendments tentatively recommended by the Federal Advisory Committee on Rules in 1954. One portion of the recommended draft omitted is that which would require the answering party to furnish ‘A listing of the names of witnesses whom the party intends to call at the trial.’ * * * The relevant portion of the Federal Advisory Committee’s notes on the redrafted Federal Rule 33 recommended in 1955 are set out for an understanding of the amendments, as follows:

“ 'The amendment resolves another mooted question by granting a party the right to obtain a copy of any statement which he has given his adversary without the necessity of showing good cause or possible hardship or prejudice. See collection of cases in 4 Moore’s Federal Practice paragraph 26.23(8), pp. 1147-1149, paragraph 34.08 p. 2454 (2d ed. 1950) ; 2 Barron & Holtzoff Fed.Prac. & Proc. Sec. 770 (1950); 7 Cyc.Fed.Proc. Sec. 25.552 (3d ed. 1951).’”

Rule 57.01, supra, 4 RSMo 1959, p. 4976, V.A.M.R. 41-82, p. 195, in material part, provides:

“(b) Scope of Examination. Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial (except a statement given by the interrogating party) or of any writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 60.01, the conclusions of an expert, shall not be required.”

The “Committee Note and Comment”, V.A.M.R. 41-82, p. 196, tersely states the source and scope of Paragraph (b) of Rule 57.01, supra: “Paragraph (b) is substantially Federal Rule 26(b) with two added sentences to protect the work product of the lawyer, the party, his agent and privies, and the conclusions of an expert. The opinion in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, protecting the attorney’s work product is reinforced by express specific language of the added sentences. This Rule broadens the scope of discovery to include not only admissible testimony, but testimony reasonably calculated to lead to the discovery of admissible evidence. Names of witnesses may be discovered even though the identification is based on hearsay or other inadmissible evidence. The last sentence is adapted from Minnesota Rules of Civil Procedure, No. 26.02. The reference to ‘any writing obtained’ refers to work product and not to a document admissible in evidence or existing before the claim arose. So this Rule would not protect from discovery a document which was not work product of a party, his agent, employee, or attorney.” (Emphasis added by this court.)

The precise question here considered turns upon the duty of respondent to require plaintiff to make complete discovery of the names and addresses of persons known to her or her attorneys who were “witnesses to this accident”, which term we construe clearly to include such persons who, so immediately prior thereto, at the time of, or so immediately thereafter, were in such proximity of the scene as to have knowledge of “facts relevant” to the time, place, manner and cause of the collision. No case has been heretofore presented to us requiring construction of these rules as they may bear upon this question. We therefore look to the decisions of the Federal Courts for such aid as they may afford in determining whether the alternative writ herein issued should be quashed or made peremptory.

But, first, we note the grounds upon which respondent challenges relator’s right to the discovery here sought. His first contention is: “The names of witnesses to an automobile accident which are discovered by an attorney during his investigation of the cause pending trial and known solely to said attorney constitute ‘work product’ and privileged matter, and are not subject to discovery by an interrogatory directed to the attorney’s client.” Respondent’s argument in that respect runs thus: that Rules 56.01 and 57.01 nowhere expressly provide for the right or privilege of a party litigant to obtain names of witnesses from an attorney for a party litigant by the use of either interrogatories or depositions; and that counsel for a party litigant may claim a privilege and refuse to disclose names if opposing counsel subpoenaed said counsel for a deposition, citing in support of said contention : Walczak v. Detroit-Pittsburgh Motor Freight, Inc., D.C.Ind., 140 F.Supp. 10, 11, 12; Sano Petroleum Corp. v. Shell Oil Co., D.C.N.Y., 3 F.R.D. 467, 468 [1], [2, 3],

And, further insists respondent, “The names of witnesses to an accident or occurrence discovered by an attorney during his investigation of the cause cannot be imputed to the client and, thus, obtained through the use of interrogatories if the attorney’s ‘work product’ is involved. It is our contention, of course, that this is ‘work product.’ ” Respondent then concludes, “the apparent intent of the ‘Rules’ was to limit discovery procedures and impose certain limitations on the use of interrogatories and depositions. This Court in adopting the New Rules of Civil Procedure never intended to give a party and counsel the right to ‘raid’ opposing counsel’s files. * * * If this had been the intention of the ‘Special Committee’ in promulgating the ‘Rules’ and the intention of this Court in adopting the rules, Rule 56 or 57.01(b) would have so provided by inserting a provision for examination or interrogation of parties regarding the identity and location of persons having knowledge of relevant facts within the knowledge of the deponent or his attorney. Instead of inserting such a provision by adding ‘within the knowledge of the deponent or his attorney’ the limitations of privileged matter and work product were written into Rule 57.01. Furthermore, if it had been intended that a party’s attorney could be forced to answer interrogatories either directly or indirectly, it would have been so provided in Rule 56.”

In Hickman v. Taylor, supra, (1946) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, the Supreme Court of the United States had under consideration the propriety of compelling discovery of documents prepared by a party’s attorney after the claim had arisen. The court held, in effect, that such documents were not a proper subject of discovery, but in discussing the question thus involved, the court stated, loc. cit. 504 of 329 U.S., loc. cit. 390 of 67 S.Ct., 91 L.Ed. 451: “A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney.” In 4 Moore’s Federal Practice, 2d ed., pages 1244-1245, it is said: “While there is authority that an attorney may assert a claim of privilege against disclosure of names of witnesses which he obtained directly from his client, this is unsound since ‘persons having knowledge of relevant facts’ do not belong to any party, since the client, as a party to the action, would have to divulge such information, and since disclosure by the attorney in no way hampers free and proper attorney-client communication. Certainly there can ordinarily be no such privilege if the names of witnesses were obtained from non-client sources, or if they were obtained by someone other than the attorney.” And, in the same text, page 2331, it is further said: “A party, or an officer of a corporation or other entity which is a party, cannot avoid answer by an allegation of ignorance if he can obtain the information from sources under his control.” Further, in the same text, page 2334, it is said: “In Hickman v. Taylor, however, the Supreme Court said flatly that ‘A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney.’ This language has been followed in later cases. An individual party is in no better position than a corporation to claim lack of knowledge if the information can be secured, whether from his attorney or otherwise.”

The statements above quoted from Moore’s Federal Practice are fully supported by numerous Federal cases, several of which are here noted. Baker v. Yellow Cab Company of Missouri, decided in 1951, 12 F.R.D. 84, involved the validity of an objection made to an interrogatory on grounds it called for hearsay and conclusions, for information obviously not within the direct knowledge or control of defendant, and constituted an attempt to invade the investigative files of defendant. The interrogatory thus challenged asked for the name and address of any person who examined a taxicab (in which plaintiff was riding when injured) on behalf of the manufacturer thereof. In overruling that objection, it was held: “The scope of examination under Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A., is the same as that set out under Rule 26(b). As amended on December 27, 1946, effective March 19, 1948, 26(b) includes the following language: ‘ * * * It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.’

“In Hickman v. Taylor, 329 U.S. 495, loc. cit. 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, the court said: * * either party may compel the other to disgorge whatever facts he has in his possession.’

“It is not contemplated that defendant or its attorneys should reveal the results of their investigations or any opinions or conclusions they may have reached. Neither is a party required to answer interrogatories calling for speculation. These interrogatories merely ask for names and addresses of persons who are known to the defendant, and plaintiff is entitled to that information.”

In B. and S. Drilling Co. v. Halliburton Oil Well Cementing Co. (D.C.1959), 24 F.R.D. 1, it was held in substance, as is succinctly stated in Syllabus 7: “In negligence action, interrogatories asking whether plaintiff contended that an employee of defendant offered to pay any party or witness to testify to any matters helpful to defendant in connection with the case or to favor defendant in his testimony and, if plaintiff so contended, requesting the names, addresses and location of the witnesses from whom plaintiff obtained such information was not objectionable on ground that such matters would be hearsay and represented the work product of plaintiff’s attorneys and the results of investigation made after the cause of action arose.”

In Edgar v. Finley (1963), U.S.C.A., 8 Cir., 312 F.2d 533, it was held, in substance, as succinctly stated in Syllabus 3: “Plaintiff’s knowledge of name and address of witness, acquired by plaintiff’s attorney from another attorney under promise that information would not be disclosed to defendant was not privileged information and was not immune to discovery” ; in Syllabus 4: “Defendant, as a matter of right, through discovery proceedings was entitled to names and addresses of witnesses known to plaintiff”; and in Syllabus 5: “Sustaining objections to interrogatories seeking information to which party was entitled as a matter of right was abuse of discretion.”

In Wycoff, etc. v. Nichols (1963), U.S. D.C., S.W.Div., 32 F.R.D. 370, Interrogatory No. 2, propounded by plaintiff, was under consideration. It was: “Please state the names and last known addresses of all persons known by you to have been present on your premises or in Elk River immediately adjacent to your premises on the date of the casualty mentioned in plaintiff’s complaint.” The opinion disposing of the challenge leveled against it said: “In answer to Interrogatory No. 2, defendants listed the names and addresses of 16 persons residing in four states, who were guests at the resort at the time of plaintiff’s injury. The plaintiff urges that ‘In all fairness plaintiff feels that defendants should be required to specify those individuals who indicated knowledge of the occurrence rather than being permitted to give a large list of names and require plaintiff to interview all of them to ascertain that which defendant by his own admission already knows.’ The difficulty is that the plaintiff included in Interrogatory No. 1 the phrase ‘known to you,’ which is reasonably subject to the interpretation that it seeks only the personal knowledge of the defendants. Therefore the answer to Interrogatory No. 1 as phrased is sufficient and the motion will be overruled in this respect.

“However, in order to facilitate the completion of discovery in this cause, the attention of the plaintiff and of the defendants is invited to the provisions of Rule 33 of the Federal Rules of Civil Procedure incorporating the scope of discovery provided by Rule 26(b). Rule 26(b) specifically provides that the scope of discovery includes inquiry concerning ‘the identity and location of persons having knowledge of relevant facts.’ If the inquiry is made in the language of the rule, simply, and without reference to any personal knowledge of the opposite party, all information available to the interrogated party must be supplied. This includes information possessed by, or within the knowledge of, the party’s attorney, investigators employed by or on behalf of the party, the party’s insurer, and agents or representatives of the party. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L. Ed. 451, 1. c. 459; 4 Moore, Federal Practice 1. 3326, pp. 2330-34. If an appropriate interrogatory is propounded, the defendants will be required to give the information available to them, if any, through their attorney, investigators employed by them or on their behalf, their insurer or other agent or representatives, whether personally known to the defendants or not.”

The following cases from courts of several other states are in accord with the foregoing Federal cases: Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13, 16-17; Lundin v. Stratmoen, 250 Minn. 555, 85 N.W.2d 828, 831-832; Smith v. Superior Court of California, 189 Cal.App.2d 6, 11 Cal.Rptr. 165, 168-169, 88 A.L.R.2d 650; Bullock v. Maag, 8 Terry 519, 47 Del. 519, 94 A.2d 382, 385; Hruby v. Chicago Transit Authority, 11 Ill.2d 255, 142 N.E.2d 81, 83; Schwartz v. Public Service Co., N.J.Co., 64 A.2d 477; Mutual Life Ins. Co. v. Tailored Woman, Inc., 276 App.Div. 144, 93 N.Y.S.2d 241.

This court, of course, is not bound by the constructions placed upon rules of discovery comparable to our Rules 56.01 and 57.01 by the above cited Federal or state cases. But should we not follow them and should we not give great deference to the exhaustive research and authoritative sources upon which our own committee formulated and, in its “comments”, construed them (of which we had full knowledge when they were adopted), we would indeed be culpably indifferent to the modern concept of the right of discovery as an invaluable aid in the administration of justice, as it is becoming universally accepted.

The discovery here sought was not privileged; neither was it the “work prod-duct” of plaintiff’s counsel as in Rule 57.01 defined. Certainly, it was relevant to the subject matter involved in the pending action in that it was reasonably calculated to lead to the discovery of admissible evidence, despite the fact that the names and addresses of the witnesses sought would be based on hearsay or other inadmissible evidence.

The alternative writ herein issued is made peremptory.

STORCKMAN, LEEDY, HYDE and HOLMAN, JJ., concur.

EAGER, C. J., dissents in separate dissenting opinion filed, and DALTON, J., dissents and concurs in separate dissenting opinion of EAGER, C. J.,

EAGER, Chief Justice

(dissenting).

I agree that the hearsay objection is not valid, since the answers to interrogatories need not, in themselves, be admissible. But the information here sought is, in my opinion, within the fair scope of the work product of the lawyer, and is thus privileged. In adopting Rule 57.01, this Court took particular pains to protect the work product of lawyers as shown by the last sentence, a provision which does not appear in the analogous federal rule; also, the Rule expressly exempts privileged matters, and I deem the matter here sought to be work product and thus privileged.

The rulings of the federal courts upon their own rules are not controlling and, to me, not particularly persuasive here. If we are to follow the ruling of the principal opinion, I think that our Rule 57.01 should be amended so as to state it in no uncertain terms.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Wilbur H. GRUETZMACHER, Plaintiff-Respondent, v. Charles HAINEY, Defendant-Appellant.
    No. 49855.
    Supremo Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    R. H. McRoberts, Harold I. Elbert, St. Louis, for plaintiff-respondent. Bryan, Cave, McPheeters & McRoberts, Susman, Wilier, Rimmel & Elbert, St. Louis, of counsel.
    Merle L. Silverstein, Rosenblum & Gold-enhersh, St. Louis, for appellant.
   WELBORN, Commissioner.

This is an action to set aside a deed for undue influence, forgery and lack of mental capacity of the grantor. The trial court found that the grantor lacked “sufficient physical or mental capacity” to execute the deed and ordered it set aside. This appeal is from that judgment. Because title to real estate is involved, we have jurisdiction.

Mabelle Elizabeth Gruetzmacher and her husband, Gustav, owned, as tenants by the entirety, property at 8239 Glen Echo Drive in St. Louis County. They lived in a two-story house built by them at that location in 1938. They had one child, Wilbur, the respondent here. In 1941, Mr. Gruetz-macher died. In 1945, his widow married Charles Hainey, the appellant here, and they continued to live at the Glen Echo house.

In January, 1960, Mrs. Hainey, who had previously been a healthy, active person, became ill. In March, 1960, she entered Jewish Hospital in St. Louis because of jaundice. On March 18, 1960, an exploratory operation was performed and cancer of the liver with metastasis, or spreading, discovered. The disease was in such an advanced stage that no treatment, surgical or otherwise, was undertaken. Mrs. Hainey was not informed of her condition.

While in the hospital, Mrs. Hainey, on March 26, executed a will. She devised the Glen Echo property to Wilbur, if living, and, if not, to his wife, Ethel. Specified personal property was also bequeathed to Wilbur. A bequest of $500 was made to Mrs. Hainey’s mother. The remainder of her estate was to go to her husband, if living, otherwise to Wilbur, who was named executor.

On April 1, 1960, Mrs. Hainey returned home from the hospital. She remained there until her death on June 3, 1960. The deed in question was executed on May 27, 1960. By it Mrs. Hainey transferred the Glen Echo property to herself and her husband, Charles, as tenants by the entirety. The deed was recorded on the date of its execution. By this action Wilbur sought to have the deed set aside and title decreed in him under the March 26, 1960 will of Mrs. Hainey, which had been admitted to probate, subject to respondent’s rights as executor under the will.

As for the evidence bearing on the issue of the mental capacity (to which we confine our review inasmuch as if that element is lacking, the physical capacity of the grantor would be immaterial), there is not the usually found conflict in the testimony of the two parties to the litigation. The difference relates largely to the effect and weight of the testimony. Respondent’s principal witnesses were his wife, Ethel, and Dr. Solon Harris, M.D., who attended Mrs. Hainey before and after she entered the hospital. According to Ethel, she and her husband had, prior to the hospitalization of Mrs. Hainey, gotten along well with the Haineys. Ethel and respondent were married in 1935 and went to live with the Gruetzmachers at that time. They moved with them to the Glen Echo residence in 1938 and continued to live there until 1945, when, at about the time Mrs. Gruetzmacher married the appellant, they purchased a house of their own. Thereafter, they and the Haineys visited regularly. According to Ethel, she and her husband would have dinner in the Hainey home at least once a week.

After the operation and while Mrs. Hainey was still in the hospital, an encounter took place at the hospital between Mr. Hainey and the Gruetzmachers in which Hainey, according to Ethel, stated: “All you are coming in here for is her property. I am her husband. Everything she has is mine. When she married me she forsook the family and nobody knows what she has. And I am furious with Doctor Gruenfeld for telling her.” After this incident, Ethel told Mrs. Hainey that Doctor Gruenfeld, the surgeon who had performed the operation, had suggested that Mrs. Hainey should, “in view of this friction,” have a will. According to Ethel, Mrs. Hainey said that she had been wanting to malee a will for some time, but she “thought Charlie would have to sign also.” Notes of Mrs. Hainey’s wishes were made by Ethel, who was a secretary to an attorney. She got in touch with an attorney not connected with the firm by which she was employed, who prepared the will as described above and brought it to the hospital where it was executed.

After Mrs. Hainey returned home on April 1, respondent and his wife visited her about every other night for the first two weeks. During that time, Mrs. Hainey was up and around and went to the table for her meals. Gradually, however, her condition became worse. She began, according to Ethel, “to refuse food or, if she did eat, she couldn’t keep it down. And she became more yellow and thinner and finally didn’t want to get up at all. She just lay in bed all the time.” When she reached that stage, respondent and his wife visited her every night.

Around the middle of May, Wilbur and Ethel were visiting Mrs. Hainey and appellant asked whether or not they had Mrs. Hainey’s bank book. Mrs. Hainey had, prior to entering the hospital, given Wilbur a passbook for a savings account in the joint names of Mrs. Hainey and Wilbur. After Mr. Hainey’s inquiry, Mrs. Hainey told Wilbur to tell her husband that she had given her son the passbook some time prior to entering the hospital. Ethel testified that Mrs. Hainey said: “He has been fighting for a bank book and title for three days.” The testimony indicated that the title referred to related to the Glen Echo property. On the second or third subsequent visit, Wilbur, in response to appellant’s continued requests, gave him the passbook. Following Mrs. Hainey’s death, respondent realized approximately $4,300 from the account.

Ethel described Mrs. Hainey’s mental and physical condition at the time of this incident as follows:

“Sometimes she would not even recognize us. If she would, she would put up her hand in recognition and close her eyes and lie there in the bed. Sometimes we would ask her something and she would ramble on incoherently and then again maybe she would say a few words we could understand. * *
“When I asked her what she wanted the bank book for she would start off rambling, ‘We are out of money. I have to use my own money.’ Then repeat that over and over again. Then I couldn’t get any more out of her.”

Respondent and his wife last saw Mrs. Hainey on May 23. At that time, by Ethel’s testimony, appellant shouted at them about Mrs. Hainey’s property, saying: “I’ve been talking to people and the house is mine.” In view of the appellant’s attitude, the Gruetzmachers did not return and kept in touch with Mrs. Hainey’s condition through the Visiting Nurses Association. Mrs Gruetzmacher described Mrs. Hainey’s condition, when she last saw her on May 23 and for the two or three preceding nights, as follows: “She just lay there in a coma, would not even speak or say anything.” Ethel and Wilbur could not carry on a conversation with her. Mrs. Hainey did not recognize them toward the last. “I would ask her, ‘You want a drink of water?’ Maybe she would nod her head and after bringing it she would shake her head she didn’t.” She ate nothing. Ethel and her husband brought liquids that she could sip through a straw. She was unable to hold the straw herself. The last words Ethel heard Mrs. Hainey say were: “I am in agony.”

On cross-examination, respondent’s wife acknowledged that, after the marriage of the appellant and Mrs. Gruetzmacher, appellant had worked for several years until he retired and thereafter he received social security benefits. Except for $7,000 in insurance which Mrs. Hainey received on the death of her husband, the appellant had provided for Mrs. Hainey and generally maintained the Glen Echo house. The cost of the upkeep of the Glen Echo property was estimated at $2,000 per year.

Dr. Solon Harris, who was Mrs. Hainey’s physician when she entered the hospital, saw her twice after her discharge. He saw her about a week after she went home and for the last time on April 16. He prescribed phenobarbital and codeine for relief of her pain. He described her condition as “lethargic, * * * in a stuporous condition. She was hazy. Mrs. Hainey was a very alert woman when I first knew her and I could see, which was expected, she was going downhill rapidly.” He expressed the opinion that she was not mentally competent at the time of his last visit.

Doctor Harris kept in touch with Mrs. Hainey through the visiting nurses. He stated that, about two or three weeks after his last visit, one of the nurses called and told him Mrs. Hainey was in pain. He prescribed dolophine hydrochloride, a much stronger drug, administered by injection and used as a substitute for morphine. Doctor Harris ordered dolophine for Mrs. Hainey on May 27. He stated he thought that order was merely the last which he made and that he had ordered it previously. However, the nurses’ notes do not indicate use of the drug prior to May 28.

On cross-examination, Doctor Harris acknowledged that the stupor which he observed on his last visit was related to some extent to the drugs which Mrs. Hainey was receiving for relief from pain and that the effects of the drugs would fluctuate depending upon the time which had elapsed since they had last been taken. He stated that, in view of the fact he did not see Mrs. Hainey after April 16, he had no opinion regarding her competency on May 27. He did state that her condition from the time he last saw her would not have been “apt to change for the better” and that the tendency would have been to require more drugs as time went on.

Other witnesses for the respondent were Mrs. Hainey’s brother, Harry Wagner, and an aunt, Jenny Karr. After Mrs. Hainey returned from the hospital, the appellant stated that her 92-year old mother, Mrs. Wagner, who had lived with Mrs. Hainey for 50 years, was making her sick and that she should go elsewhere. Arrangements were made for her to do so. Harry Wagner took her from the Hainey residence on May 20. He testified that he saw Mrs. Hainey at that time, but that she did not respond when he asked how she felt. He testified that Mrs. Hainey’s mother went in as she was leaving and said: “Good-bye, I’m leaving.” Mrs. Hainey made no response. Wagner said that she appeared to be asleep and no attempt was made to awaken her.

Mrs. Karr stayed with Mrs. Wagner while Mrs. Hainey was in the hospital. On one occasion while she was there, appellant told Mrs. Karr: “I said to Mabelle, if she would let me have a room in the house, and she said 'No,’ * * Mrs. Karr was at the Hainey house along with her sister-in-law for two hours on May 23. At that time Mrs. Hainey was in a large chair in the kitchen. Mrs. Karr said she spoke to her, but that “she sat there and she never opened her eyes or she never answered me.” Mrs. Karr did not hear Mrs. Hainey say a word while she was there. She stated that Mrs. Hainey’s eyes were closed, but she could not say whether or not she was asleep.

A nurse employed by the Visiting Nurses Association, Geneva Mont joy, identified the nurses’ records of calls on Mrs. Hainey. Mrs. Montjoy made some of the calls herself, but not all of them. The visits began on May 10, when the record described Mrs. Hainey as an “Elderly critically ill female. Confined to bed. Up to bathroom only. * * * Fairly alert. Speaks coherently with intervals of rambling talk.” On the second visit, May 16, the note described her condition as “still very low * * *. Rampant pain. Loses contact for brief intervals. Coherent at others * * May 19 — “Patient critical. Husband thinks patient improved due to sleeping most of the time * * *.” May 21 — “Patient up in chair and husband making bed * * May 23 — “Sitting propped in chair in kitchen. Husband not home. Relative with patient. Grunting and groaning as though in much pain.” May 24 — “Slightly more alert * * *. Condition weak.” May 25 —“Continued poor condition.” May 26— “Complains of generalized pain.” May 27— “Took moderate serving ice cream * * *. Had poor night. Refuses to go to nursing home * * *.” Mrs. Montjoy made the call on the 27th. She could not place its time other than in the afternoon. She could not recall, but stated that her notes indicated that she had a conversation with Mrs. Hainey at that time.

The May 28th note described Mrs. Hain-ey’s condition as “weak” and refers to the administration of dolophine for the first time. May 29 — “Less groaning and restlessness.” May 30 — “Restless. Gruntlike responses.” May 31 — “No improvement.” June 1 — “Seems semi-comatose.” June 2— “Not responding.” June 3 — “Message from M.D. — Patient expired, 6/3 A.M.”

Respondent’s evidence included testimony of a handwriting expert who had examined the signatures of Mrs. Hainey on the deed and an affidavit as to tenancy by the entirety executed in conjunction with the deed. He stated that, in his opinion, the signatures on the documents were not those of Mrs. Hainey, but were those of the appellant.

The appellant’s evidence was limited to the preparation and execution of the deed and affidavit. Three witnesses were called, Clayton J. Lane, an attorney, who prepared the deed and affidavit and who was present at their execution; Vera Sheridan, a notary public, who took the acknowledgment of Mrs. Hainey, and Mary Lou Maginn, a neighbor of the Haineys.

Lane, an attorney admitted to practice in 1926, testified that he had represented Mr. Hainey on minor legal matters prior to April 28, 1960. On that date, the appellant called and asked him to come to the Hainey house. Lane did so on May 5. After discussing other matters, Hainey remarked about his wife’s illness and his uncertainty about the title to their residence. He asked Lane to check the record. Lane did so and, on May 12, returned to the Hainey residence. He told Hainey that title was-in the name of Gustav H. Gruetzmacher,. Jr. and Mabelle Gruetzmacher, his wife-Lane stated that, on this visit, he explained to Mrs. Hainey the status of the title. According to Lane, “she assented and told me that it would be all right, words to that effect. * * * to prepare the warranty deed. * * * from Mrs. Gruetzmacher to Mr. Hainey and Mrs. Gruetzmacher (sic).”' Lane prepared a deed and an affidavit regarding tenancy by the entirety and on May 24 took them to the Hainey residence and exhibited them to Mrs. Hainey. According to Lane, at that time, Mrs. Hainey asked two or three questions about the transaction. “I wouldn’t just exactly remember then what her questions were, but, after the conversation was just about over, then I asked her, * * * ‘Is this the way you want this matter handled?’ And she says, ‘That’s the way I want it.’ That’s exactly her words.” According to Lane, Mrs. Hainey was then sick and weak, but “she was alert.” There was some indication that the deed was tendered to Mrs. Hainey at that time.

In any event, Lane returned with the deed and affidavit on May 27 at around 3:30 in-the afternoon. After going to the house, he went to the Normandy City Hall and got Mrs. Sheridan, the city clerk and a notary public. When they entered the house, Mrs. Hainey was sitting in a chair in the kitchen, propped up by pillows. Because Mrs Sheridan wanted to verify the identity of Mrs. Hainey, Mr. Hainey got Mrs. Maginn who^ lived two doors away. According to Mrs. Maginn, when she entered the Hainey house, she patted Mrs. Hainey on the shoulder and nodded and Mrs. Hainey looked at her and nodded back. Mrs. Maginn testified that Lane read the papers “from beginning to end” and then said to Mrs. Hainey, “Now, do you understand exactly what these papers are and what you are doing ? This house was in your former husband’s name, your name and his, and you are now changing it to Mr. and Mrs. Charles Hainey. He said: ‘You understand perfectly what you are signing,’ and she nodded. * * * She was reclining. She was nodding, yes, she nodded to him. She didn’t talk. She didn’t have her teeth in.”

Mrs. Sheridan recalled that Mrs. Hainey “nodded one time, when Mr. Lane explained one time. She nodded and shook her head.” She said that Mrs. Hainey “might have said yes, I’m not sure.” Mrs. Maginn heard Mrs. Hainey say only one word, “Charlie,” which Mrs. Sheridan also heard. Appellant’s response was: “Just a minute, mama, I’ll put you to bed right away.”

Lane testified that he explained the warranty deed and said to Mrs. Hainey: “Now, is this what you desire to do?” According to Lane, “she nodded and says yes. Very feeble, but she said yes. I wanted to make certain she knew what she was doing. She was a sick woman, I knew.”

The three witnesses agreed that Mr. Hainey “guided” his wife’s hand upon the signing of both the deed and affidavit. They stated that Mrs. Hainey held the pen and started to sign, but when she had difficulty appellant asked whether or not he could help her. When told it was permissible, he took her arm in his hand (upon the exact point, the witnesses did not agree) and assisted in the signing of both documents.

Lane filed the deed and affidavit in the recorder’s office on May 27, at 4:52 o’clock P.M.

“In reviewing the case, we have the duty to weigh the evidence and reach our own conclusion as to its weight and value, giving due regard to the trial chancellor’s opportunity to judge the credibility of the witnesses.” Farr v. Lineberger, Mo. Sup., 207 S.W.2d 455, 459[2-4], The burden of proof was upon respondent to prove by convincing evidence that, on May 27, Mrs. Hainey lacked mental capacity to execute the deed. Sullivan v. Winer, Mo. Sup., 310 S.W.2d 917, 921 [2, 3]; Cruwell v. Vaughn, Mo.Sup., 353 S.W.2d 616, 624 [1-6]; Farr v. Lineberger, supra. The question is whether on that day she had sufficient mental capacity to understand the nature and effect of the transaction. Spaeth v. Larkin, Mo.Sup., 325 S.W.2d 767, 772 [9]; Cruwell v. Vaughn, supra. Less mental capacity is required to make a gift conveyance than a deed which is part of a regular business transaction. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703 [5, 6]; Cruwell v. Vaughn, supra.

Weighing the evidence on behalf of the respondent, we find it sufficient to satisfy the burden upon him to show that Mrs. Hainey was, on May 27, incompetent to execute the deed. The weakened condition of Mrs. Hainey obviously involved not only her physical state but also her mental faculties. Her inability to perform the most simple and routine everyday functions, such as feeding herself, her nonrecognition of the members of her family and her loss of contact point to a person who, as of the last date of the respondent’s direct testimony, May 23, was in a condition which would not, and, obviously, in view of her death ten days later, did not improve. No conversation passed between Mrs. Hainey and her son and daughter-in-law on their last three visits. The last words which her daughter-in-law heard her say were “I am in agony.”

The appellant would give little value to the testimony of Doctor Harris because he last saw Mrs. Hainey on April 16 and mental incapacity must be shown as of the time of the execution of the deed in question. However, it is obvious that Mrs. Hainey’s condition declined almost steadily after Doctor Harris last saw her. He expressed the opinion that at that time she was not mentally competent. His testimony was that her condition would not have been apt to improve after his last visit and that she would require increasing doses of dru.^s.

The appellant argues that Doctor Harris’ opinion of Mrs. Hainey’s incompetency on April 16 was based substantially upon the condition which drugs produced. Indeed, Doctor Harris did testify that her condition was in part due to drugs and that, insofar as he knew, her brain had not been attacked by disease. As appellant states, Doctor Harris did testify that the effect of drugs would fluctuate, depending upon time between their administration. However, we disagree with appellant’s analysis of the testimony as showing that “Mrs. Hainey’s incompetence was a temporary condition which would wear off if she did not receive the regular drug injections; and there is no evidence whatsoever that she received any such injection during the month of May, at least prior to May 28, 1960.” Doctor Harris testified that, at the time of his last visit, Mrs. Hainey was receiving codeine and phenobarbital, both of which were administered orally, not by injection. According to Doctor Harris, “she was getting phenobarbital and codeine constantly.” Although he did not see Mrs. Hainey again, he kept in touch with her condition through the visiting nurses. Dolophine, administered by injection, was ordered on May 27, when, according to Doctor Harris, the phenobarbital and codeine which he had prescribed did not alleviate the pain. Significantly, Doctor Harris prescribed the more powerful drug on May 27, the date on which the deed was executed. Although it was apparently not administered prior to May 28, the fact that this drug was ordered on the 27th would indicate the deterioration of Mrs. Hainey’s condition by that date.

Furthermore, the nurses’ notes show an almost steady and gradual worsening of Mrs. Hainey’s mental condition. The notes do indicate that, on May 24, she was “slightly more alert.” However, the fact that a slight improvement would be of such significance to warrant the note would indicate a previous lack of alertness as respondent’s witnesses testified. There is no indication whatsoever of any subsequent or continued improvement in her alertness. There is indication of a conversation with the nurse on the 27th, the date of the deed. However, the nurse could not recall what had been said. Insofar as the notes show, the conversation related to Mrs. Hainey’s physical condition. Her response in that regard would not warrant a conclusion, in view of the other evidence concerning her condition, that she had sufficient mental capacity on that date to execute the deed.

Appellant points out that, in the daughter-in-law’s testimony, there was evidence of a rational conversation regarding a bank book around May 15. Testimony did show that, at that time, Mrs. Hainey was aware of the fact that she had previously given the passbook for the joint account to her son. The evidence does not show, as appellant’s reply brief states, that the bank book was given to the son at that time. On the contrary, it shows that the book was actually given to him prior to the time that she entered the hospital.

In any event, there is some doubt that the conversation which appellant points to as intelligible was wholly such. Mrs. Hainey said: “We are out of money. I have to use my own money.” However, evidence showed that there was a balance of some $3,000 in a joint bank account in the names of Mr. and Mrs. Hainey. In such case, it would appear either that she was, for some reason, mistaken about her financial status, or that the remark was not that of a coherent, competent person.

Upon consideration of respondent’s evidence, we feel that the inference that the grantor’s mental condition as shown by such evidence continued to the day of the execution of the deed is warranted and that a finding of lack of mental competency on May 27 would be called for, absent evidence by the appellant to rebut the effect of the respondent’s testimony. We look, then, to the appellant’s evidence. No witness testified to any conversation on the part of Mrs. Hainey at the time the deed was signed. Lane stated that he heard her say a “very feeble” “yes” in response to one of his statements of explanation. Mrs. Sheridan was uncertain whether or not she heard Mrs. Hainey say “yes.” Mrs. Maginn saw Mrs. Hainey only nod her head, apparently affirmatively. Both Mrs. Sheridan and Mrs. Maginn heard Mrs. Hainey say “Charlie.” In view of his response, “Just a minute, mama, I’ll put you to bed right away,” this must have been a plea for assistance and not an indication of mental capacity.

In our opinion, the appellant’s evidence does not overcome the inference of mental incapacity which respondent’s evidence raises. In weighing the evidence, we are aware, as above pointed out, that mental capacity to make a gift is less than that required for a bargaining transaction. This obviously was a gift. However, where, as here, the gift is a product of the grantee’s suggestion, there should be more convincing evidence than has been presented here to overcome the inference of lack of mental capacity. The appellant’s testimony clearly shows that Mrs. Hainey was not the person who originated the idea that the house should be transferred to her and Charles as tenants by the entirety. Less than two months before, she had made a will in which she devised, consistently with their close relationship, the house to her son. In doing so, she did not ignore the .appellant. He would succeed to a four-family flat and there was evidence of a savings account which he would receive. From the aunt’s testimony, we find that, around the time the will was made, appellant asked Mrs. Hainey to provide at least .a room for him in the house, but she declined to do so. Insofar as appears, that was her attitude when her faculties were unimpaired. She could, of course, subsequently have changed her mind. However, her remarks around May IS, referring to appellant’s fighting for three days about a title, did not evidence a changed attitude.

Indications are that on the visit of May 24 Mrs. Hainey in fact rejected the proposed deed. Lane was a notary public and could have taken the acknowledgment, had Mrs. Hainey signed in his presence. On direct examination, when asked the reason for not executing the deed on the 24th, Lane stated: “I can’t answer that question. I don’t know the reason. In fact, I don’t think there was just exactly any preparation. I feel like there was a phone conversation between Mr. Hainey and myself and I didn’t say definite what day I would be out and I told him the next day or probably the second day.”

On cross-examination, he admitted that it was “possible” that, as he testified in his deposition, he “tendered the deed at that time and Mrs. Hainey shook her head ‘No.’ She said, ‘That’s all right.’ ” While Lane stated that he “went most on her last words,” “That is the way I want it,” it would appear that her reference might well have been to the status quo since she rejected the deed to change it.

Comparison of the evidence in this case with that of the numerous reported cases involving similar circumstances avails little. Each case must be decided upon its own facts. We will, however, refer briefly to cases cited by the appellant. We, of course, recognize that the question of mental capacity must be determined as of the date of the deed in question. Here we can and do infer that the condition concerning which the witnesses testified continued to that time. We do not have the benefit of clear and convincing evidence to rebut this conclusion such as was found in the cases of Cruwell v. Vaughn, Mo.Sup., 3S3 S.W.2d 616; Gaugh v. Webster, Mo.Sup., 297 S.W.2d 444; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Sullivan v. Winer, Mo.Sup., 310 S.W.2d 917, all cited by appellant. The cases of Lorraine v. Dixon, Mo.Sup., 356 S.W.2d 96, and Miller v. Minstermann, Mo.Sup., 266 S.W.2d 672, also cited, involved deeds alleged to be void on the grounds of fraud and mistake, and, on their facts, are not comparable with the situation here presented. In each of the four cases first cited, although the grantor was suffering from a disability which had previously affected his mental capacity, there was direct evidence on the part of the person who prepared the deed that the .grantor’s conversation showed clearly an awareness of the nature and effect of the transaction. Furthermore, except for 'Gaugh, the grantor in those cases sought ■out the person who prepared the deed. In Webb v. Heddleson, Mo.Sup., 327 S.W.2d 101, also cited by appellant, the court referred to testimony by the notary public who took the acknowledgment to the deed that the grantor “was mentally sound, knew the nature and extent of his property, the natural objects of his bounty and fully understood the nature of the transaction * * and was indeed mentally capable of executing the deeds at the time they were -executed.” 327 S.W.2d 103.

The contrast between the evidence considered sufficient in those cases to support the deed and that here offered for that purpose is striking. In making such comparison, we do not, of course, place the burden of proof upon the appellant to support the deed. The burden was upon the respondent to overthrow it. However, in ■view of the respondent’s evidence, appellant should have come forward with testimony to show mental capacity at the time •of execution of the deed. In this the testimony fails.

In reaching our conclusion, we also consider the evidence concerning the signing of the deed and affidavit. The evidence is clear that appellant actually performed, through Mrs. Hainey’s weak and impotent hand, the act of signing the deed and affidavit. Mrs. Hainey could, of course, have adopted the signature made by another person (Spaeth v. Larkin, Mo.Sup., 325 S.W.2d 767, 772 [10]), but, again, only if she were competent to know what was in fact being done and consented thereto.

Also of significance is the fact that, after the deed, according to Lane, had been signed at around 3 :30 P.M., it was filed for record at 4:52 P.M. on the same date. This unseemly haste to place the deed on record may well signify doubts about the efficacy of the transaction. See Vining v. Ramage, 319 Mo. 65, 3 S.W.2d 712, 720 [4].

The judgment is affirmed

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge.

text:
    Hazel DIAL, Respondent, v. SEVEN-UP BOTTLING COMPANY, a Corporation, Appellant.
    No. 49982.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.

      Lane D. Bauer, Donald K. Hoel, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for appellant.
    Lyman Field, Rogers, Field & Gentry, Kansas City, for respondent.
   HYDE, Judge.

Action for $75,000.00 damages for personal injuries sustained in an intersection collision between plaintiff’s car and defendant’s truck. The jury found for defendant but the trial court sustained plaintiff’s motion for new trial and defendant has appealed.

Plaintiff submitted on primary negligence (Instruction 3) of defendant’s truck entering the intersection against a red traffic control light. Defendant submitted the converse (Instruction 7) that plaintiff entered the intersection when the light was not green in her favor. Defendant also submitted contributory negligence on Instruction 8 as follows:

“The Court instructs the jury that even if you find and believe from the evidence that on the occasion mentioned in evidence plaintiff drove and operated the Buick automobile into the intersection when the traffic light controlling westbound traffic on 19th Street was green, if you also find and believe that immediately prior to or at the time plaintiff entered said intersection plaintiff, by keeping a careful and vigilant lookout, under the circumstances described in evidence, could have seen defendant’s truck traveling southward on Charlotte toward the intersection of 19th and Charlotte and should have known that there was probable danger of a collision between the two vehicles, if so, and if you further find that at the time plaintiff entered said intersection she failed to keep a careful and vigilant lookout, if so, and if you further find that plaintiff thereafter drove and operated her automobile westwardly on 19th Street into the path and in front of defendant’s truck, if so, and if you further find that in failing to keep a careful and vigilant lookout, if so, plaintiff did not exercise the highest degree of care for her own safety and was negligent, if so, and that such negligence, if any, on her part, directly contributed to cause or bring about the collision mentioned in evidence, if you so find, then you are instructed that plaintiff is not entitled to recover in this case and you must return a verdict in favor of defendant, and this is true regardless of whether or not the defendant was also negligent.”

The court’s order granting a new trial was: “Now on this day plaintiff’s Motion for New Trial upon the Ground numbered 4 of said motion, and particularly subpara-graph (e) of said Ground 4 (Jolley, pro ami, v. Lowe, [Mo.] 362 S.W.2d 741, 1. c. 743) is by the Court sustained.”

The subparagraph of the motion for new trial referred to was as follows: “(e) Nowhere in said instruction is submitted the essential issue of plaintiff’s ability to avoid the collision after such time as the jury might have found that in the exercise of the highest degree of care, she should have known of the probable danger of collision.”

Jolley v. Lowe, cited as authority for the order, was a case submitted on humanitarian negligence and we said of the instruction therein (362 S.W.2d 1. c. 743) : “In order to be complete and understandable there should have been inserted after the word ‘automobile’ the phrase ‘and thereby have avoided colliding with plaintiff,’ or some similar expression.” This would have made that part of the instruction submit that after the plaintiff had entered the zone of peril “the defendant was unable, in time thereafter, to sound a warning or stop his automobile and thereby have avoided colliding with plaintiff.” However, even with this addition the instruction in the Jol-ley case still had the defect of submitting what the defendant as an individual was able to do, rather than the objective standard the law required. In this case, only primary negligence was being submitted. To make a humanitarian negligence case, in such a situation, it is essential that, after the plaintiff has come into a position of imminent peril, the defendant then has the ability to take action that will prevent a collision. In a primary negligence case, duty to act commences earlier. Therefore, we have uniformly held that to submit on failure to keep a lookout, in addition to stating the degree of care required, it is “sufficient to authorize a verdict if a jury finds that a party was negligent in failing to keep a proper lookout and that such negligence resulted in a collision or damage.” Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693; see also Boehm v. St. Louis Public Service Co., Mo.Sup., 368 S.W.2d 361, 367; Whaley v. Zervas, Mo.Sup., 367 S.W.2d 611, 614; Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759, 768; Goldstein v. Fendelman, Mo.Sup., 336 S.W.2d 661; Moore v. Ready Mixed Concrete Co., Mo. Sup., 329 S.W.2d 14, 25; Patton v. Hanson, Mo.Sup., 286 S.W.2d 829, 830; Horrell v. St. Louis Public Service Co., Mo.Sup., 277 S.W.2d 612, 615; Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, 14. We consider this instruction to meet the requirements of these cases.

However, plaintiff says the instructions in these cases were simple highway or uncontrolled intersection collision cases and should not apply “where one motorist at a controlled intersection runs a stop sign or a red light, and the other party enters the intersection on a through street or favored with a green light.” Plaintiff cites Witt v. Peterson, Mo.Sup., 310 S.W.2d 857, in which as here the jury found for defendant in a controlled intersection collision! case, contributory negligence of plaintiff' having been submitted on failure to keep a¡. proper lookout although when the plaintiffdrove into the intersection “the traffic light, was green in his favor.” As plaintiff says, the instruction in that case, submitting contributory negligence of plaintiff, did require-the finding that by proper lookout plaintiffcould have seen defendant’s automobile “prior to or after entering said intersection”- and “that plaintiff thereafter could have-stopped his automobile and thus and thereby have avoided the collision.” However, we-did not rule therein that this requirement was an essential element of such a lookout instruction, the plaintiff’s contention being that “the instruction gave the jury a roving commission to find facts which established no duty to act.” That case again ruled (310 S.W.2d 1. c. 860): “The motorist-is not entitled to rely solely on the favorable-signal; nor is he entitled to drive blindly into the intersection without looking. The. duty of care to be exercised remains commensurate with the circumstances, one of which, of course, is the green light in his-favor.” While it would be proper for the-plaintiff to include “ability to avoid” or for the court to give an instruction, at- the defendant’s request, stating such a requirement, our conclusion is that it is not an essential requirement of a lookout instruction, even where the plaintiff entered an intersection on a green light. As we see it, the principal difference between such a case and an uncontrolled intersection case is that the duty to keep a lookout for other cars usually would commence earlier in the latter situation. Therefore, we hold on the authority of our hereinabove cited cases that in the situation herein, as in the other lookout submissions considered, it is sufficient to-hypothesize that there was a failure to keep a lookout required by the exercise of the highest degree of care, that such failure was negligence and that such negligence directly caused or directly contributed to cause the collision.

Plaintiff also contends the court’s ■order should be construed to mean that a new trial was granted for every reason stated in each of the subparagraphs of •Ground 4, whether specified or not by the court in its order. It is our view that the only reasonable construction of the court’s order is that it granted the new trial only •on Ground 4(e). Especially should this be true under our present Rules 70.02 and 79.03, V.A.M.R. which require specific objections to instructions in the motion for new trial if not made at the trial. See also Rules 78.01 and 83.06(b). Therefore, it was not defendant’s burden to brief all the reasons •stated in each of the other subparagraphs of Ground 4, which the court did not state as grounds for its order. Plaintiff cites Caldwell v. St. Louis Public Service Co., Mo.Sup., 275 S.W.2d 288; Stone v. Engler, Mo.Sup., 349 S.W.2d 38; and Donaldson v. Rather, Mo.App., 288 S.W.2d 682, but these were not cases in which, as here, the court granted a new trial for a definite specified defect in an instruction. The Caldwell and Donaldson cases were decided before the adoption of Rules 70.02 and 79.03, and in the .Stone case the court did specify as a ground ■for its action that the instruction considered was confusing and misleading. Of course, ■plaintiff could urge any of the other reasons •stated in subparagraphs not mentioned by the court to show that the court’s action in •granting the new trial was proper. Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980, 981; White v. St. Louis Public Service Co., 364 Mo. 111, 259 S.W.2d 795, 798; Overton v. Tesson, Mo.Sup., 355 S.W.2d 909, 913. However, plaintiff has briefed only one sub-paragraph, other than 4(e), being 4(a) hereinafter discussed. Nevertheless, if the evidence was insufficient to submit this issue of contributory negligence of plaintiff we •properly could consider this ground stated iby plaintiff in subparagraph (b) of plaintiff’s motion because if that were true it undoubtedly would have been reversible error to give the instruction. Zalle v. Underwood, Mo.Sup., 372 S.W.2d 98. Plaintiff did not have any point in its points and authorities as to 4(b) but in its argument under 4(e) made the following statement: “No stopping distance ability was proved at all in our case on either vehicle — let alone the plaintiff’s motor car. * * * In short, almost as a matter of law, defendant’s instruction failed because the burden of contributory negligence was an affirmative defense on the defendant, and the defendant did not come forward with any evidence at all upon which it could have been inferred by the jury that plaintiff at the time she entered the intersection could thereafter have avoided the accident.” (Emphasis ours.) Although this statement is somewhat equivocal as to this issue, we have examined the evidence and decided it was sufficient to support the instruction for the reasons hereinafter stated.

In determining whether Instruction 8 was supported by evidence, we must consider the evidence in the light most favorable to defendant. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656, 661, and cases cited. Defendant’s truck was going south on Charlotte, a one-way street for southbound traffic with two driving lanes and two parking lanes. According to defendant’s driver, plaintiff’s car, going west on 19th Street, was about 5 feet east of the intersection when his truck was 25 feet north on Charlotte. Plaintiff said the speed of her car was never more than 5 miles per hour and the speed of defendant’s truck was estimated at 10 to 15 miles per hour. Defendant’s driver said he had slowed from 20 miles per hour approaching the intersection and seeing a large tractor and trailer going through at 5 to 10 miles per hour; but took his foot off his brake when the tractor-trailer cleared the east side of Charlotte. (He claimed he had a green light at that time.) As he attempted to go through he saw plaintiff’s car following the tractor-trailer and stopped his truck 5 or 6 feet north of the center of the intersection after coming in contact with plaintiff’s car when it was 5 or 6 feet east of the center of the intersection. He said there was no damage to his truck as only the left corner of his bumper struck the right fender of plaintiff’s car. Later both vehicles were driven away, plaintiff going on to her place of work and defendant’s driver on his work as a salesman.

From the testimony of defendant’s driver and plaintiff’s admissions, the jury reasonably could have found that plaintiff, although seeing defendant’s truck coming south within 25 feet of the intersection, followed the tractor-trailer into- the intersection without ever looking again toward defendant’s approaching truck. (Defendant’s driver said plaintiff “told me she was following the truck.”) Our view is, under these circumstances, the jury reasonably could have found contributory negligence of plaintiff as submitted in Instruction 8. It is true that there was evidence of at least “a skim of snow” on the streets and ice in places and as plaintiff points out no evidence of stopping distances of either vehicle; but there was no evidence of either (or any other car) sliding or skidding. Furthermore, all the evidence is that plaintiff’s car was not going more than five miles per hour and “[jjudicial notice has been taken that a heavily loaded truck traveling two to five miles an hour may be stopped ‘almost instantly,’ ‘within a very few feet.’ Dowler v. Kurn, Mo.App., 119 S.W.2d 852, 854, 857[5].” Johnson v. Kansas City Public Service Co., 358 Mo. 253, 214 S.W.2d 5. See also Wegener v. St. Louis County Transit Company, Mo.Sup., 357 S.W.2d 943, 947, and cases cited. Therefore, we hold there was substantial evidence to support the submission of contributory negligence made by Instruction 8.

As stated, plaintiff further contends that we should affirm the court’s order because subparagraph (a) of Ground 4 of her motion states Instruction 8 “was confusing, argumentative and misleading”; and says the court properly could have granted the new trial on that ground because the instruction placed “the absolute duty of seeing and knowing there was a probable danger of collision when plaintiff was only required to exercise the highest degree of care in the circumstances.” The clause of the instruction which plaintiff claims imposes an absolute duty is “should have known that there was probable danger of a collision between the two vehicles.” Plaintiff says this clause is so far separated from any reference to exercise of any care as at least to be confusing and misleading. There are several reasons why this contention cannot be sustained. In the first place, plaintiff stated no such ground, of placing an absolute duty on plaintiff, in her motion for new trial as required by Rules 70.02 and 79.03, and so did not preserve this point for appellate review. Furthermore, while plaintiff considers this contention could be considered under the claim of a confusing and misleading instruction, that would be a discretionary ground and the court did not state any discretionary ground in its order granting a new trial. Rule 83.06(c) provides : “If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.” In any event, we find no merit in the claim that the clause criticised by plaintiff imposed an absolute duty when the instruction is read and considered as a whole. (In this connection, we note that “highest degree of care” was defined by Instruction 5.)

The order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and judgment for defendant.

All concur.


author: HOUSER, Commissioner.

text:
    Homer V. PRICE, Respondent, v. Carl R. RIDLER, Jr., and Violet A. Ridler, his wife, Gertrude Siebel, Irvin W. Lorts and Helen J. Lorts, his wife, Warren C. Kappler and Gloria C. Kappler, his wife, Appellants.
    No. 50110.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.

      Blackwell & Blackwell, Earl R. Blackwell, Hillsboro, for defendants-appellants.
    Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for plaintiff-respondent
   HOUSER, Commissioner.

Action in equity by the purchaser for specific performance of a contract for the sale of real estate. The trial court decreed specific performance and the defendants (sellers and subsequent purchasers from the sellers) have appealed. Title to real estate is involved within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S. Cossairt v. Reich, Mo.Sup., 370 S.W.2d 291.

Carl R. Ridler, Jr. acquired a 257-acre farm in Jefferson County in 1953. He testified he paid $16,500 for the farm, but admitted that the documentary stamps indicate a consideration of $15,000. On January 6, 1961 he and Mrs. Ridler gave Haag' Real Estate Company of St. Louis an exclusive listing contract at a price of $40,000' “or offer,” agreeing in consideration of the agent’s advertising and efforts to sell to pay a 10% commission on the price named “or such other price” as the sellers might accept, if a sale of the property be made “while in charge of” the agent. The Rid-lers reserved the right to terminate the-agency one year after January 6, 1961 on: one month’s notice in writing.

On July 8, 1961 Mr. Ridler wrote a letter to plaintiff, Homer V. Price, a real estate developer, stating that the farm was-for sale and that he thought Mr. Price would be interested in buying it since it was between Price’s farm and the main road. Mr. Price replied that he was not' acquainted with the farm or its location,, asked for clarification and expressed a desire to know the asking price. On July 16, 1961 Mr. Ridler wrote Mr. Price giving' him the location and stating that it was-“valued at $12,000” but he would “consider an offer below that amount, please feel free-to do so.”

Before this exchange of correspondence Mr. Price did not know the Ridlers and had never made any effort to buy the farm. Upon receipt of the second letter Mr. Price-went to Mr. Ridler’s home where they had' a preliminary discussion without reaching' any agreement, except that Mr. Ridler would come to Mr. Price’s office in Jefferson County. On July 22, 1961 Mr. Ridler appeared at Mr. Price’s office. The parties-proceeded to the farm, looked it over, and' had lunch together, during which negotiations progressed. In their negotiations the-parties were dealing at arm’s length. During the negotiations Mr. Price was informed of the fact that the Ridlers had listed the property with Haag and Mr. Price was shown a copy of the listing contract,, which had the figure $40,000 in it, but Mr. Price was informed that Mr. Haag had been notified to lower the price to $20,000 in view of the fact that no offers at the higher figure had been received. The Ridlers suggested that Mr. Price go with them to Mr. Haag to buy the property but Mr. Price did not want to go to Mr. Haag with his deal, and said they would “just leave Mr. Haag out of it.” When liability for the payment of a commission to Mr. Haag was discussed Mr. Price suggested that he would wait until the listing contract expired before he would pay for the land in full; that if he bought it he would do so with the understanding that he would buy it directly from the Ridlers after January 1st, “therefore [the Ridlers] would not have to pay Mr. Haag [the] commission for selling it, that he [Mr. Price] would handle it for [the Ridlers].” Mr. Ridler said he would like to sell the land “right away” and pay the commission. Mr. Price “was still set on waiting until the end of the year.” They finally agreed upon a sales price of $10,800, which they arrived at by deducting the amount of the commission from the $12,000 asking price ($12,000 less 10% or $1,200), acting on the assumption that by delaying the closing of the sale until the expiration of the listing contract the Ridlers would not have to pay the $1,200 commission to Mr. Haag. Mr. Price assured the Ridlers that they could “still sell” the property “up to the time of the contract,” but claimed they would have to sell it for $40,-000. (Later in the year Mr. Price told the Ridlers they could not sell the property; that it was his.) So on July 22, 1961 a sales contract was drawn and executed by Mr. Price and Mr. Ridler, and later signed by Mrs. Ridler, reciting the receipt by Mr. Price of $540 earnest money deposit as part of the cash consideration of $10,800 for the 257-acre farm, “which property is this day sold to said Homer V. Price.” The balance was to be paid as of closing date, December 22, 1961, later amended by mutual consent to December 31, 1961. A date in late December was chosen by Mr. Price as the closing date under the mistaken impression that the listing contract terminated between the 1st and 15th of December. The following proviso was typed in a blank space at the end of the printed form of the contract of July 22:

“Provided, however, that whereas the seller hereunder has previously entered into a contract with a certain realty company listing said property with such realty company for sale at a price of forty thousand dollars ($40,000.00), it is hereby understood and agreed that the existence of said listing contract is hereby acknowledged and it is further agreed that should said realty company arrange a sale on or before December 1, 1961, at the listed price of $40,000.00, commission provided under said listing contract shall be paid in full, date of closing hereunder being accelerated to conform to said sale and buyer hereunder performing as seller under said listing contract.”

This instrument was filed for record in the Recorder’s Office of Jefferson County on October 25, 1961. The $540 was paid by Mr. Price’s check, on which there was a notation “Earnest money and part purchase money on 257 acres at $10,800 as per contract.” The check was endorsed and cashed by Mr. and Mrs. Ridler.

During August, 1961 Haag Real Estate Company negotiated a contract for the sale of the farm to one Fred Simmons, but this sale was not consummated because of lack of financing.

Defendants’ Exhibit C is a written contract, dated November 15, 1961, for the sale of the farm by the Ridlers to Gertrude Sie-bel for $19,500, reciting that a down payment of $2,000 had been received by Haag Real Estate Company. Gertrude Siebel was an employee in the Haag office. A deed from the Ridlers to Gertrude Siebel dated December 1, 1961, filed for record in the recorder’s office December 22, 1961, was offered in evidence. The Ridlers did not receive any of the $2,000. They testified that it was to be “left in check form” until the litigation was settled.

In December 1961, prior to the closing date, plaintiff notified the Ridlers that he was prepared to pay the balance due on the contract, and that the money would be on deposit at Jefferson County Abstract Company; that the papers would be ready for the Ridlers to execute and he would expect them to convey title to the farm to him at the closing on December 31, 1961. Plaintiff deposited the money at the abstract company but the Ridlers failed to consummate the transaction according to their contract and Mr. Price filed this suit on January 9, 1962, filing a notice of lis pendens on the same day. The property was thereafter conveyed by Gertrude Siebel to the other defendants named in this action.

Defendants seek a reversal of the decree •of specific performance on two grounds.

First, defendants contend that plaintiff acted in bad faith and did not come into the court of equity with clean hands. This is said to arise because plaintiff, aware of the listing contract with Haag, “cut in and interfered with” that contract and connived to cheat the broker out of his commission by suggesting that no commission would have to be paid Haag if the sale were consummated after the listing had expired; suggested a reduction of the sale price by an amount exactly equal to the real estate broker’s commission, and by placing the •$40,000 figure in the contract forced Haag ■“to sell at $40,000.00 or nothing, thereby interfering to control the real estate broker’s contract so that the broker could not make a commission on a sale of, for example, $30,000.00”; and that this underhanded practice cannot be condoned in a court of equity. While “He that hath committed iniquity shall not have equity,” and while the clean hands doctrine is one of the foundation stones of equity jurisprudence, it has its limitations and “does not apply to every unconscientious act or inequitable conduct on the part of a plaintiff.” Pomeroy’s Equity Jurisprudence, Sth Ed., Vol. 2, § 399, p. 94. “The party to a suit, complaining that his opponent is in court with ‘unclean hands’ because of the latter’s conduct in the transaction out of which the litigation arose, or with which it is connected, must show that he himself has been injured by such conduct, to justify the application of the principle to the case. The wrong must have been done to the defendant himself and not to some third party.” Idem, § 399, p. 99; Schroeder v. Turpin, 253 Mo. 258, 161 S.W. 716 [8]. While plaintiff’s attempt to circumvent Haag’s rights under the listing contract and thereby avoid payment of a commission stands for disapproval, especially in view of the fact that plaintiff must have known better, having been engaged in the real estate business for fifteen years, the plain fact remains that plaintiff’s conduct did not injure defendants; the wrong was done to a third party.

Next, defendants contend that the contract between plaintiff and the Ridlers was oppressive, unfair, inequitable, unreasonable, an unconscionable bargain, one-sided, biting, overreaching; that it worked an unreasonable and disproportionate hardship upon defendants and placed them at the mercy of plaintiff. Specific performance of a contract having these qualities will not be decreed, but a careful review of the record does not lead to the conclusion that this contract is subject to this wholesale indictment.

We put aside Ridlers’ testimony that Mr. Price informed them during the negotiations that the sale to him would he carried out only if the Ridlers could not sell their property for a better price before the end of the year, and that if they did sell their only obligation to him would be the return of the $540 earnest money payment, for the reason that this evidence, objected to, was inadmissible under the parol evidence rule. Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820; Bank of Mountain View v. Winebrenner, 355 Mo. 79, 195 S.W.2d 486, 490.

Defendants contend that “an unconscionable bargain was made by the wise and sharp plaintiff who found the defendants in financial hardship and ignorant of what they were signing.” The evidence does not support this contention. There is nothing to indicate that plaintiff was “wise and sharp” in the sense suggested or that the Ridlers were lacking in business acumen; or that plaintiff was more than a match for the Ridlers in business matters or that he took advantage of “ignorant and destitute people” to drive an unconscionable bargain, as claimed. Nor is there support for defendants’ claim that the Ridlers were “poor and uneducated” laymen and that the quoted provision of the contract was incapable of being understood by them. The evidence of their education and ability to understand shows that Mr. Ridler had the equivalent of a 4-year high school education. An electrician by trade, he was in the U. S. Navy for approximately 20 years, where he had training in electrical work. His testimony indicates that he is an intelligent person with a better than average education and understanding. Mrs. Ridler attended high school and her testimony reveals an intelligent person of average or better than average understanding. There is nothing to show that the Ridlers were ignorant of what they were signing. Instead, their testimony indicates they were fully informed as to the terms of the contract. Mr. Ridler testified that he and Mr. Price were dealing at arm’s length.

There is nothing in the record to support the suggestion that the Ridlers were suffering from financial hardship. Mr. Ridler testified that he had no steady employment since the employees went on strike at General Electric (at a date unspecified) ; that he had been working at small jobs, and Mr. Price testified that Mr. Ridler told him he was “somewhat pressed” for money. This does not prove financial hardship or that the Ridlers were destitute, as claimed.

Defendants assert that a decree of specific performance would produce injustice and work a hardship on defendants by forcing them to sell their land for an amount equal to less than one third of its value; that “[cjonsidering the increase in land values in Jefferson County within the past ten years, the property could easily be worth $30,000-$40,000. Even on a quick forced sale which the Ridlers thought was necessary to prevent Price from confiscating the property for $10,800 the Ridlers were able to obtain $19,500.00 for the acreage.” There is no substantial evidence to support these statements. The evidence is that in 1953 Mr. Ridler bought the land for $16,-500 (or less); that in 1961 he valued the land at $12,000 and after arm’s length bargaining arrived at a sales price of $10,800 by reducing the $12,000 by the amount of a 10% real estate commission; that on July 22, 1961 the reasonable market value of the land was between $10,000 and $15,000, and that a short time before trial plaintiff had testified in another lawsuit that 171 acres of land in the same county, some three miles from this farm, but not as level land, were worth $171,000. There is nothing to show that the 171-acre tract was comparable to the 257-acre tract in location, fertility, general adaptability or potential uses. The evidence, on the contrary, is that the 257-acre farm was poor in fertility, not located as well, and that land in the area around it had been selling for $40 an acre “lately.” Defendants argue that Haag, under the listing contract, negotiated a sale of the property on November 15, 1961, during the contract period, “and consummated the sale the following month for the price and sum of $19,500.” The evidence is not convincing that there was a genuine, bona fide sale for $19,500. While Exhibit C, a sales contract, recites such a sale and that a $2,000 check purporting to be a down payment was issued, the transaction does not ring true. The alleged purchaser, Gertrude Siebel, was an employee in the office of Haag Real Estate Company. The $2,000 check was never cashed. None of the $19,500 has ever been paid to Haag or to the Ridlers. Mr. Ridler concedes that the check is being held pending the outcome of this litigation. Although the deal was never closed, the Ridlers made a deed to Gertrude Siebel who, in turn, undertook to transfer title to •others. When Gertrude Siebel’s title was 'brought in question in this action she ex'hibited no interest in claiming title. Although named as a defendant in this suit .and personally served with process she -stood in default on the day of trial, filed no -pleading, and did not appear. Her “grandees,” the defendants Lorts and Kappler, -were personally served with process, but -they likewise failed to appear, filed no pleadings and defaulted.

In sum, the evidence of value does -not support the conclusion that the Ridlers were forced to sell their land at an inadequate, confiscatory price, and that it would be inequitable to decree specific performance for this reason.

Defendants claim that the quoted proviso -in the listing contract was “sharp practice” -which made this a “one-sided contract” and unquestionably “placed the defendants Rid-ler at the mercy of the plaintiff”; that it forced defendants “to try to sell their -property for $40,000, and no less, and even if they did sell, then the plaintiff was to receive the $29,200 profit”; that it is ambiguous, unclear, extremely puzzling and ■that it “reeks with trickery and fraud.”

We do not find the language of the provision ambiguous or puzzling. It is clear .and definite enough for ordinary understanding. The contract in suit, executed in acknowledgment of the provisions of the listing contract, was subject to the provisions of listing contract. In the event of a •sale by the Ridlers under the listing contract Mr. Price was to step into the shoes of the Ridlers under that contract, perform as seller, pay all commissions due Haag, and take whatever profits might be involved. Mr. Price’s rights to the property under his contract with the Ridlers were subject to the possibility of a bona fide sale under the listing contract. In that event the listing contract would take precedence. Such a sale, when consummated, would render impossible performance by the Ridlers under their contract with Mr. Price. The contract in suit was thus conditional in the sense that it would be enforceable if there was no sale by the Ridlers under the listing contract.

Obviously the quoted proviso was advantageous to Mr. Price but it does not follow that its inclusion effected sharp practice, trickery or fraud, or made it a “one-sided” contract. By “one-sided” we assume defendants mean a contract in which all of the burdens and obligations were imposed on one party, whereas all of the benefits and considerations flowed to the other party. While the contract was advantageous to Mr. Price there were considerations and benefits flowing to the Ridlers. By this contract the Ridlers accomplished the sale of their property, “a consummation devoutly to be wished” by the Ridlers, if we correctly interpret their expressed desires. By Mr. Price’s promise they were relieved of the obligation to pay a commission to Haag in case of a sale under the listing contract. In the absence of fraud, mistake, imposition, undue influence, overreaching, etc., or some impediment such as public policy, specific performance will not be denied on the ground that the parties who are sought to be held to their contract may have made a bargain less advantageous to them than to the party seeking enforcement.

We find no substantial basis for the assertion that the contract in question was unfair, oppressive, unconscionable and overreaching, and that it placed the Ridlers at the mercy of Mr. Price. It is a standard printed form of sales contract, with conventional terms, except for the quoted proviso. Defendants claim that the proviso forced upon them the alternative of holding out for $40,000 or missing a sale for a lesser amount. We do not find this claim accurate or relevant. It ignores the fact that by the execution of the contract in question the Ridlers sold the property conditionally under an agreement that the vendee step into their shoes as vendors under the listing contract if Haag arranged a sale thereunder satisfactory to them. By this action the Ridlers effectively took themselves out of the picture as far as profits were concerned. Thereafter they had no reason to be particularly interested in any sale of the property by Haag, for they would not benefit therefrom. Thereafter Mr. Price was entitled to any profit realized by a sale under the listing contract for any amount over $10,800. The proviso did not force any alternative upon the Ridlers. They were not obligated to sell at any price, except for the maximum cash price of $40,000. Under the listing contract, and after the execution of the contract in suit, the Ridlers were free to sell or not tO' sell for any price less than $40,000. The language of the proviso “at the listed price of $40,000” is descriptive merely, not mandatory or exclusive. It must be held to have referred to a sale at the listed price, $40,000, or “such other price” as the vendors might accept. The proviso would not become operative until a bona fide sale was arranged under the listing contract, and in order for any sale at less than $40,000 to be made the Ridlers would have to agree to its terms. The argument that under the proviso they were forced to sell for $40,000 or not sell is not tenable.

The proof offered does not show that the “sale” in August, 1961 and the subsequent deed to Gertrude Siebel was a bona fide sale and conveyance. On the contrary, we find that it was a sham transaction, contrived for the purpose of relieving the Rid-lers of their obligations under the contract in suit, and that there was no legal excuse for the refusal of the Ridlers to comply with their contract.

Summarizing, sui juris landowners desiring to sell their farm sought and found a prospective purchaser, made an offer, negotiated at arm’s length, arrived at a price not shown to be unconscionably low, entered into a conditional contract which is clear and definite in its terms and not unreasonable, inequitable or overreaching. The condition which would have excused the vendors from performance not having occurred, the vendee having performed all of his obligations, and no impediment to specific performance appearing on any of the grounds assigned, this is a proper case for specific performance.

Judgment affirmed.

COIL and WELBORN, CC, concur.

PER CURIAM.

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

All of the Judges concur.

      . Anno. 4 A.L.R. 46, 85.