Dissenting.
I cannot concur in the result reached by my associates. I was originally of the opinion, ini view of the whole record, that the judgment should be affirmed, but, after mature reflection, I have arrived at the conclusion that, for the reasons hereafter stated, the judgment should be reversed, and the cause remanded for a new trial.
Owing to the great mass of evidence and the irreconcilable conflict among the statements of the witnesses with respect to the controlling elements of the case, it is impracticable to set forth the evidence even in condensed form so as to give the reader an opportunity to arrive at an intelligent conclusion. I shall therefore quote only the statements of appellants from which it is apparent that their contentions with respect to the transfer of the property in question do not square with the theory upon which the case was ultimately *616tried and determined. Mr. Peterson, in giving the conversation between himself and respondent D. C. Budge, and which Peterson claims constituted the agreement and inducement to make the transfer, says: “Well, that was that he (Budge), that they, would get the deed from — that we should sign the deed over to them, and then he (Budge) should advance some money for to take me into bankruptcy, and after I had gone through bankruptcy he agreed to turn the property back to us.” Mrs. Peterson, in her testimony, in giving her version of what was said, testified: “And Mr. Peterson asked Dr. Budge if he couldn’t take these places, assume that mortgage, and to hold them until he (Peterson) felt as though he had money to redeem them from him (Budge), pay him for what he had paid on them, and he (Budge) first said that he didn’t and Mr. Peterson says, 'Well', I think you could if you wanted to.’ And D. C. says, ‘No.’ He says, ‘I don’t think I can.’ He says, ‘I haven’t the money right at present to do it with, but,’ he says, Til talk to my brother T. B., and if he feels as though he wants to take them, why, it will be all right with me.’ ” After this Mr. Peterson’s attorney was consulted, and he strongly advised against the transfer, and upon his advice Peterson executed the mortgage referred to in the prevailing opinion, by which respondents’ claim was secured, and they seemed perfectly satisfied. The attorney testifies that he was with Peterson at least a “dozen times” preceding and during the negotiations, and, it seems, fully advised him with regard to his legal rights. The attorney further says that he never heard any conversations between Peterson and respondents whereby respondents agreed to reeonvey the property; but the attorney says that he advised Peterson that, if Peterson intended to take advantage of the bankruptcy act, he should file a declaration of homestead on some other property Peterson then owned, and which was free from incumbrances, so as to give him an un-incumbered home; that he, the attorney, at the request of Peterson, prepared such a declaration and filed the same for him.
I shall not refer further to any .specific evidence, but will *617give a brief outline of the conclusions which the trial court, in my judgment, was justified to draw therefrom, and which, in my judgment, are sustained by the clear weight of the evidence: (1) That the testimony of the appellant Joseph S. Peterson was wholly unreliable, and therefore to be considered only in connection with other credible evidence or circumstances which were corroborative of his statements. (2) That the testimony of Mrs. Peterson was not of great weight upon many of the controverted points, because she hardly had that personal knowledge of the matters which would give her testimony controlling weight or force. (3) That Peterson had a purpose in transferring the property to the respondents which was wholly independent of and apart from the reasons that he gave at the trial. The court was further justified in concluding that Peterson desired to go through bankruptcy after conveying the property in question, and that neither of the respondents in any way or to any extent influenced or advised him with respect to the matter, but that Peterson desired to do so for some reason satisfactory to himself at the time. (4) That the sickness or indisposition of Peterson was not as serious nor of the character he and some of his friends said it was; and further, that such sickness did not to any extent affect his mental faculties and had nothing to do with the transfer of the property — that is, the transfer would have taken place if Peterson had not been indisposed just as it did, all other things being equal; that Peterson’s sickness was. of but small importance because of the fact that his bill for medical service covering its whole period amounted to the insignificant sum of four dollars only. (5) That Peterson was at the time indebted to respondents, and that all they asked of him was to secure their claim; that before doing so Peterson called in his lawyer and discussed the contemplated transfer of the property and his (Peterson’s) desire to take advantage of the bankruptcy act, and the attorney advised him not to do this, but to secure respondents’ claim by executing a mortgage, which Peterson did, but afterwards changed his mind, and, contrary to the counsel and advice of his attorney, in*618structed bim to prepare a deed of conveyauce for tbe property to tbe respondents, wbicb was accordingly done. (6) Tbat, for a considerable period of time prior to tbe transfer of tbe property to> tbe respondents, Peterson was seeking to dispose of this property at a figure much less than be said it was worth at tbe trial, but in excess of tbe price allowed bim by respondents; tbat respondents repeatedly during tbe time of tbe negotiations, and before tbe transfer was made, urged Peterson to dispose of tbe property to some one else for any figure be might obtain for it, and tbat they did not want tbe property unless they could get it at tbe price suggested by them. (7-) Tbat respondents, nor either of them, at noi time importuned or requested Peterson to convey tbe property to them or either of them for tbe price named by them, or for any price, and did not use or exercise any influence over bim nor make any misrepresentations to Peterson to induce bim to make tbe transfer to them, but tbat Peterson did so after having independent and disinterested legal advice and counsel, and did so voluntarily, and while bis mind was unaffected, except such effect as would arise from a mere nervous condition. (8) Tbe court, in view of all tbe evidence, was also justified in concluding tbat there was neither actual fraud, restraint, undue influence, nor inducement of any kind practiced, exerted, or held out by respondents through or by the means of wbicb Peterson was induced to make tbe transfer.
Tbe court, however, was not justified in bis finding and conclusion that tbe relation of physician and patient did not exist at tbe time of and immediately prior to tbe transfer of tbe property. I fear therefore tbat in arriving at bis conclusions tbe trial court relied entirely upon actual, rather than upon presumptive, fraud. Had tbe court found tbat tbe relation, of physician and patient existed, and bad it appeared to me tbat be bad given tbe relation due effect in arriving at bis conclusions, I am firmly of tbe opinion tbat bis judgment ought not to be disturbed at long range, in view of tbe great conflict in tbe evidence and tbe personal element, wbicb always is to be given full scope in determining tbe *619weight, if any, that is to be given to any particular witness or testimony. In view therefore that the court must have disregarded the presumption of influence and advantage which the law presumes to exist in a transaction between physician and patient in favor of the physician, I am not certain that the court would have arrived at the same conclusion he did if he had fully considered this presumption and had given it its proper scope and effect. I cannot agree, however, with the scope and effect this presumption is apparently given in the prevailing opinion when applied to the naked relation of physician and patient. When there is nothing except the bare relation of physician and patient, the rule that is generally applied to an attorney and to other relations of trust and confidence is not applied with full rigor to the hare relation of physician and patient. In speaking of this principle in its application to actual fiduciary relations, the author, in section 963, 2 Pom. Eq. Juris., says: “The same general principle extends, with more or less force, to dealings between physician and patient.” (Italics mine.) This, in my judgment, is a ..dear statement of the law as I understand it.
A careful reading of the cases will also disclose that, while the general principle must always be kept in mind, nevertheless this principle must be applied in each particular case in accordance with the facts and circumstances developed in that case. Eor two well-considered eases illustrative of the general principle applicable between' physician and patient, I refer to Unruh v. Lukens, 166 Pa. 324, 31 Atl. 110, and Cadwallader v. West, 48 Mo. 483. In both of those cases it will be seen that the principle is applied in its full scope as between physician and patient upon the ground that the physician was the trusted counsel and adviser , of the patient in business affairs, as well as his physician'. To say that the former feature is, to any extent, present in this case, is, in my judgment, wholly unwarranted by the evidence. Moreover, it seems to me that my associates have overlooked one salient, if not controlling, feature in this ease. This feature is always considered by all courts where either actual or con*620structive fraud, or undue influence and elements' of that character are involved. In this case Peterson had independent and disinterested legal advice. No one impugns or even questions the integrity of his legal adviser, and if Mr. Peterson refused to follow his advice, but desired to accomplish a purpose of his own in transferring the property, and did so voluntarily and deliberately, he cannot be heard to complain.. In my judgment therefore the prevailing opinion, in view of the facts and circumstances, and in view of the force and weight which the trial coourt was authorized to give to the evidence and inferences, lays too much stress upon the mere relation of physician and patient. Upon the other hand, the trial court must have lost sight of the presumptions prevailing against respondents and thus may have given the evidence and inferences to be drawn therefrom greater effect than they were entitled to.
I am further of the opinion that too much importance is attached to the disparity between the value of the property as testified to and the consideration agreed upon between respondents and Peterson. If the evidence was such as would-; justify a finding that there was neither actual nor constructive fraud or influence — and I think it was — then the disparity of value became a mere element in the case to he considered and weighed in connection with all the other facts and circumstances. No doubt, where a fiduciary relation is established, the presumptions that it had some effect in inducing the gift or transfer prevails, and unless this presumption is entirely overcome, and the transaction is shown to be entirely free from the influence presumed, this disparity may alone be sufficient to turn the scales in favor of the don- or or grantee. If the transaction is purged, however, from the influence presumed against it, then the mere disparity of value, unless greatly inadequate, is generally not of great importance. To illustrate: In this case the brother of appellant Peterson placed the value of the property at about $5500, one real estate dealer placed it at $1000, another at $4000 to $5000, and still another at $4500, while one of the respondents placed it at $3500. All the other witnesses *621placed tbe value at different figures ranging from $5000 to $8000. In looking over tbe figures as given in tbe prevailing opinion of Mr. Justice McCarty, it will also be observed that tbe range of value covered by tbe same witness at times varies from $500 to $1000; that is, tbe same witness in bis estimate says tbe property was worth, say, $5000 or $6000. If upu'n tbis evidence therefore either tbe court or jury bad found tbe value at $4000, tbe finding would be amply sustained by tbe evidence. While- it is true that an amount in excess of tbis would likewise be supported, it, however, only illustrates thid tbe matter. of value is, to a large extent, a mere guess, and I am unable to see why one extreme is not just as likely to be correct as tbe other.
True, most any one would be likely to follow tbe temptation which is always present in such cases to fix some point between tbe highest and lowest figure given. Tbis for the purpose of fixing tbe value in condemnation or other proceeding where tbe value must be fixed at some point is always proper. But tbe same rule is not equally applicable when the sole question is whether tbe consideration paid is so inadequate as to- indicate unfair dealing. I think in- such a -case other elements are to be considered. In tbe first place, as is clearly apparent from tbis record, tbe purchaser might be unwilling to purchase at a price placed upon tbe property by others. In tbe judgment of such purchaser tbe property may not be worth what another says it is, and, even if it were, the purchaser in making tbe purchase is entitled to bis own judgment. Again, tbe purchaser may not desire to buy tbe property unless be can obtain it at what be considers a speculative price; that is, unless be feels reasonably certain that there is a profit in it for him. Tbis again is bis own affair. If therefore tbe respondents refused to- take tbe property unless they co-uld buy it at their own price, as they testified, and if they did not influence Mr. Peterson in any way, and be was free to act upon bis own judgment, and did act upon it, then tbe law cannot aid him. In a ease where a bargain and sale is not involved, but where it involves a transaction where one sustaining a fiduciary relation to another has, by *622reason of sucb relation, obtained some property belonging to the beneficiary, or where in some transaction with the beneficiary the trustee has obtained property from such beneficiary by means of some alleged concealment or misrepresentation, then in all such cases the one who has obtained such property, or any interest therein, must not only show that he acted in the utmost good faith in obtaining it, but must go further and show that he has not reaped an advantage or benefit by the transaction. The rule, however, does not go to this extent where a physician deals with his patient in case where a sale of property is involved. The physician must, no doubt, overcome the presumptions that arise by virtue of the relation; but, when he has overcome those, he need not also show that the property he has purchased from the patient is precisely of the value that was paid for it. Even a physician may exercise his own judgment in dealing with his patient, if the transfer is otherwise fair, and the relation is not abused.
In this case the trial judge, whom we know to be conscientious and upright, was evidently not willing to place the value of the property at a figure greatly in excess of what respondents agreed to pay therefor, as is disclosed by his findings. He simply found: “That a fair cash value of said property at the time of said conveyance was somewhat in excess of the consideration paid therefor. . . . That there was no such an inadequacy of consideration as to enable the court to grant plaintiffs any relief on that ground.” If the court had found the property to be of some definite value, and from the amount soi found it would appear that the consideration paid was so far below tlqe real value as to indicate that such difference was not a mere error or difference of judgment with regard to values, I could then say with some degree of certainty that there was something which operated upon Peterson’s mind, either real or imaginary, which induced him to part with his property, and that respondents thereby obtained an advantage which in good conscience they ought not to retain in view of the relationship existing between them and Peterson at the time; but, even *623then, Peterson would be required to place the respondents in statu quo*. Tbe trial court was not prepared to base such, a finding upon the evidence, and he was in a much better position to judge of the weight to be given to the evidence than I am. I am clearly of the opinion therefore that the trial court should find the value of the property, and not leave it for us to hazard a guess upon it.
Tu,.™ nf the case upon which, however, the trial court made no finding. After the action was commenced, the appellants and respondents seemed to have arrived at some understanding with respect to the controversy, and appellants then signed the paper referred to in the prevailing opinion. The circumstances under which this paper was signed were shown by at least three disinterested witnesses from whose testimony the conclusion is certainly well founded that there was neither influence nor coercion of any hind practiced by respondents at that time. Neither is it claimed that the relation of physician and patient between Peterson and respondents existed at that time. The effect of this transaction between the parties could well be considered as an affirmation of the transfer by Peterson. It is true that the Petersons claim that the transfer was based upon the promise of respondents, that they would reconvey the property. The court, upon ample evidence, however, was justified in not believing these claims. Here again Peterson went contrary to the advice of his counsel, who was a lawyer other than the one who advised him in the principal transaction. My brethren seem to think that Peterson’s disregard of this attorney’s advice was caused by respondent’s influence over him. I confess I can find no evidence or circumstance from which this inference may logically be drawn. Upon the other hand, it seems to me to be a strong inference that what respondents and their witnesses said about the transaction is in the main true, and that Peterson thought so himself.
Por the reasons therefore that the court erred in finding that the relation of physician and patient did not exist, and that the court, to some extent at least, may thereby have beeni induced to find for respondents, I think the case should be *624reversed. I bave arrrived at tbis conclusion witb less reluctance because it appears from tbe record that respondents were deprived of tbe opportunity at tbe trial of fully cross-examining Mr. Peterson upon tbe merits of tbe controversy, and that counsel for Peterson was likewise deprived of Peterson’s assistance and counsel during a large part of tbe trial. I am of tbe opinion therefore that tbe judgment should' be reversed, and tbe cause remanded for a new trial, upon which full findings should be made based upon tbe theory that tbe relation of physician and patient did exist at and immediately prior to tbe time of tbe transaction.