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son's services in working for and nursing dece- and made a home for themselves on a part dent during a term of years, evidence held suffi- of the farm which now belongs to the estate. cient to support finding that the parties had a mutual and often expressed understanding that John, who took the name of Biggerstaff, the services were not gratuitous, but to be com- married and made another home, leaving his pensated.

mother and stepfather. Two children were [Ed. Note.-For other cases, see Executors born to him by his wife, viz., the plaintiff, and Administrators, Cent. Dig._$8,901-9032: Charles, and a daughter whom they named 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. Om 221.]

Ruth. The mother of these children died in 4. EXECUTORS AND ADMINISTRATORS 206—their early infancy, and John returned with

DECEDENT'S PROMISE TO PAY ON DEATH them to the home of his mother and stepIMMATERIALITY OF FORM OF RECOMPENSE.

father, where they lived as one family until Where an aged negro, whose grandson was supporting and nursing him, working the old the death of John, which occurred in 1893. man's farm, agreed that such grandson should Thereafter the two children continued to live receive compensation for such services out of his with the decedent until February, 1913, when estate upon his death, such grandson was enti- Ruth married and left the old home. Plaintled to the promised remuneration upon his grandfather's death, even though he could not tiff renained with the old man, who became get it in the form he expected; the only ques- a widower in 1898, until his death, which, tion being whether the parties intended that as stated, occurred in March, 1914. At that the services be gratuitous or performed for hire. time plaintiff was 28 and Ruth 30 years of

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 733; Dec. Dig. age. On206.]

After the death of their father, the chilAppeal from Circuit Court, Clinton Coun- dren were supported by their grandparents, ty; A. D. Burnes, Judge.

and, in their childhood, were sent to school. Action by Charles Biggerstaff, Jr., against They were industrious and worked faithfulH. R. Riley, administrator of the estate of ly. Four years before her death their grandCharles Biggerstaff. Judgment for plaintiff, mother was stricken and rendered helpless and defendant appeals. Affirmed.

by paralysis, and the work of the children

grew heavier. During the last 10 years of W. S. Herndon, of Plattsburg, for appel- his life the deceased was infirm and afflicted lant.

Frost & Frost, of Plattsburg, for re- with a malady which required the almost spondent,

constant attention of a nurse. Plaintiff dis

charged those duties, and, in addition, perJOHNSON, J. This action originated in formed all of the work on the farm, for the probate court of Clinton county upon the which he received no compensation. In adfollowing demand filed by plaintiff against dition to doing such work, he worked for the estate of Charles Biggerstaff, deceased : farmers in the neighborhood, using the monTo working on the farm, looking after

ey he earned for the support of the family. and caring for stock, for and beginning March 6, 1905, for ten years,

In short, during the period for which he ending March 6, 1914, at the rate of

now claims compensation, he was farmhand $25 per month or $300 per year.... $3,000.00 and nurse for a helpless and diseased old To caring for and waiting on deceased and furnishing board and provisions

man, and most faithfully and efficiently perfor and from March 6, 1905, to and

formed his onerous duties. ending March 6, 1914, at the rate of

There is evidence tending to show that $15 per month."

$1,300.00

plaintiff and deceased had a mutual underThe cause was tried in the probate court, standing that the services were not being and on appeal in the circuit court, resulting gratuitously rendered, but were to be adeeach time in a verdict and judgment for quately compensated. Plaintiff's sister testiplaintiff for the full amount of the demand. fied that on different occasions during the

The facts of the case, as disclosed by the last 10 years of his life the old man, in her evidence introduced at the trial in the circuit presence, declared his intention to plaintiff court, are as follows: Charles Biggerstaff, to pay him well for his services. "He said an aged negro, died intestate in Clinton he was going to pay Bud [plaintiff] and pay county, March 6, 1914, leaving neither widow him well for what he had done, and my nor descendant, but leaving an estate consist- brother said 'All right.' !! ing of a farm of 70 acres near Plattsburg, Two daughters of Wilson Biggerstaff, who the county seat, and cash and solvent notes exhibited an unselfish interest in their faamounting to about $7,000. He was born ther's old slave, especially after he became and reared in slavery in Kentucky, and was helpless, testified to having repeatedly urged married in that state to a negress called in him to pay or make some provision for paythe evidence “Aunt Jane,” who, at the time , ing plaintiff. One of them said: of the marriage, had a son named John. The "I talked to old Charles about Bud's being so three were slaves of Wilson Biggerstaff, who good, and he ought to be paid for it, and old brought them with him on his removal in Charles would tell me, 'At my death Bud and 1857 from Kentucky to Clinton

Clinton county.

Ruth will get everything I have; there is no

one else to leave it to, and I expect them to When they were freed from slavery, the have it.'

from slavery, the have it. He didn't pay them a thing while he three left the service of their former owner lived.

He said that he was going to leave them everything he had, and at his death, board and provisions furnished, the whole is so they would get it. He wasn't paying them now, indefinite and uncertain that it is not a suffibut they would get what he had at his death cient statement on which to base a finding." He said they were good and kind to him, and he wanted them to have everything he had at

The demand was not attacked by motion his death."

or otherwise prior to the trial in the circuit Another disinterested witness testified to court, and the point first was raised by an having had a conversation with the old man objection to the introduction of evidence. No in which the latter said

formal pleadings are required in the presen"he intended to pay Bud for everything he done. tation of demands for allowance in the proHe said Bud was good to him, and was the only bate court, and if the demand presented be one that stayed by him when he was sick and sufficient to advise the opposite party of the waited on him and he intended to pay him and nature of the claim and to bar another acpay him well."

tion on the same cause, all other defects Another witness testified:

will be cured by the defendant if he suffers "He always said he intended to will them his the case to go to trial on the merits, withproperty at his death. He didn't pay them for their services on that account. They would get out attacking the demand. Rassieur v. Zimall he had anyway."

mer, 249 Mo. 175, 155 S. W. 24; Iba v. RailA neighbor who had known deceased for road, 45 Mo. 469; Bronze Co. v. Doty, 99 Mo. 20 years said:

App. loc. cit. 198, 73 S. W. 234, 78 S. W. 850; "I have had frequent talks with the old man,

Christianson V. McDermott, 123 Mo. App. and he said that Bud was doing the work, him loc. cit. 455, 100 S. W. 63; Jarrett v. Mohan, and his sister, and he expected to pay them 142 Mo. App. 29, 126 S. W. 212. well for it."

It cannot be said with any show of reason [1] We are asked to disregard the testi- that the instant judgment would not be a mony of plaintiff's sister and to reverse the complete bar to another action for services judgment and remand the cause for the rea- and for advances made by plaintiff on acson that she was incompetent to testify as a count of board and provisions, and this being witness under section 6354, R. S. 1909. In so, defendant, failing to raise the point of substance, the ground of her asserted incom- indefiniteness or uncertainty in the statepetency is that she is prosecuting a demand ment at the proper time and in the proper for her services rendered to the deceased, is manner, is in no position to complain. a party to the contract for services which [3, 4] It is argued by defendant that the plaintiff is seeking to have enforced, and evidence shows conclusively that the decetherefore comes under the ban of the pro- dent was in loco parentis to plaintiff during vision of the statute that, "where one of the the period in which the alleged services were original parties to the contract or cause of rendered, and fails to show the existence of action in issue and on trial is dead,

a contractual agreement or understanding the other party to such contract or cause of ac- that the services were not to be performed tion shall not be admitted to testify

gratuitously, out of filial love and reverence, in his own favor."

but were to be compensated. Defendant ofThe action of plaintiff is not founded on a fered no evidence, but relies on the testimony joint contract, and the evidence which tends of some of the witnesses from which it is to show that his services were rendered un- argued that the decedent, in his lifetime, der a contractual agreement for compensa- went no further than to give voice to his tion does not disclose a joint employment or gratitude for the kindness of plaintiff and hiring of plaintiff and his sister. All that to his voluntary intention to bestow a testathe record shows is that the deceased prom- mentary bounty upon his benefactor.

But ised to pay plaintiff for his services, and we find ample evidence in the record to supthat such promise, which was accepted and port an inference that the parties had a muacted upon, in no wise was connected by the tual and often-expressed understanding that parties with the services of the witness, nor the services were not gratuitous, but were with any obligation the old man assumed to be adequately compensated. They were not towards her. The respective contracts and allowed by the parties to remain entirely actions are entirely separate and independ in the field of sentiment, but were made the ent, the parties are different, and a witness subject of a contractual agreement under does not come within the terms of the stat- which plaintiff was to serve his employer ute excluding one who is a party to the con- faithfully, and, in turn, was to be paid for tract or cause of action “in issue and on what he had done. Grant that the parties trial." Gunn v. Thruston, 130 Mo. 339, 32 did not intend that payment should be made S. W. 654; Carpenter v. Coats, 183 Mo. 52, during the lifetime of the employer, if they 81 S. W. 1089.

mutually intended that the services were to [2] The sufficiency of the demand filed in be paid for in some way out of the estate the probate court to support the verdict and of the recipient, we say, as we did in the case judgment is challenged on the ground that: of Christianson v. McDermott, supra, that:

“The first item, standing alone, might have "We are at loss to know why, if a remunerbeen sufficient, but when the second was added, ation was expected and promised for the servicin which a charge for caring for and waiting es, plaintiff would not be entitled to it, although The only question in such cases is whether , City. He and another boy were racing on the parties intended the services to be gra- roller skates downgrade on the granitoid tuitous, or performed for hire, and we find sidewalk on the west side of Charlotte the evidence amply supports the conclusion street. He had on a pair of freshly oiled, expressed in the verdict that plaintiff was ball bearing skates, and was striving to to be paid.

overtake his companion, to whom he had Nothing we have said is in conflict with given a handicap at the top of the hill, the cases relied upon by defendant. Bircher where the race started. Both were moving v. Boemler, 204 Mo. 562, 103 S. W. 40; Er- at high speed--perhaps 25 miles per hourhart v. Dietrich, 118 Mo. 418, 24 S. W. 188; as they approached Twenty-Fifth street; the Snyder v. Free, 114 Mo. 360, 21 S. W. 847; other boy being still in the lead. An auMorris v. Barnes' Adm'r, 35 Mo. 412; Hart tomobile owned by defendant and occupied v. Hart's Adm'r, 41 Mo. 441; Aull Savings | by four persons approached the street crossBank v. Aull's Adm'r, 80 Mo. 199; In re ing at a speed of 12 or 14 miles per hour Helpbringer, 175 Mo. App. 325, 162 S. W. from the east on Twenty-Fifth street, and 288; Brand v. Ray, 156 Mo. App. loc. cit. proceeded over the crossing without change 630, 137 S. W. 623; Crowley y. Dagley, 174 of speed at a time when the boys were in a Mo. App. 561, 161 S. W. 366.

place where to avoid a collision with the We have sufficiently answered objections car they would be compelled either to stop urged against the rulings of the court on or to change their course. The boy in front instructions. The case was tried without carried a stick, which he skillfully used as prejudicial error.

a brake and guide, and, so using it, was Judgment affirmed. All concur.

able to turn westward at the corner on to a dirt path and come to a stop without injury,

but Henry carried no stick, and was going at HOPFINGER v. YOUNG. (No. 11608.)

such high speed that he could neither stop

nor alter his course. There is evidence tend(Kansas City Court of Appeals. Missouri. July 2, 1915. Rehearing Denied

ing to show he was aware of his peril, and Oct. 4, 1915.)

that it had become apparent before he reach1. MUNICIPAL CORPORATIONS Omw 705–STREETS ed Twenty-Fifth street, and when the auto-AUTOMOBILE ACCIDENT— LIABILITY.

mobile was at or near the east line of Where plaintiff's minor son roller-skated Charlotte street, and could have been predown a sidewalk to a street crossing at a negligent rate of speed, so that he was unable to vented from passing athwart his compulsory change his course to avoid running into an au- line of travel. A woman and her adult tomobile driven by defendant owner's chauf- daughter were riding in the car, which an feur in the course of his employment, who was negligent in not seeing the child, as did the agent of defendant was attempting to sell to other occupants of the car, soon enough to stop them. The mother sat in the rear seat with it to avoid the collision, which he might have the agent, and the daughter in the front seat done, the owner of such car was liable to the with the chauffeur. The agent testified he plaintiff for the boy's resulting death.

[Ed. Note. For other cases, see Municipal realized that the boy had lost control of Corporations, Cent. Dig. $8 1515-1517; Dec. himself and was in peril when he was 100 Dig. Omw 705.]

feet and the car about 50 feet from the 2. TRIAL Cm 260-INSTRUCTIONS_REPETITION. place of collision. The agent halloed, as did

Where the essential elements of a requested others who were witnesses of the accident, instruction were fully embodied in the party's but the attention of the chauffeur, who was given instructions, the refusal of the request conversing with his companion, was not diwas proper.

[Ed. Note. For other cases, see Trial, Cent. verted to the boy until the latter crashed Dig. $$ 651-659; Dec. Dig. Om 260.]

into the side of the car and was run over Appeal from Circuit Court, Jackson Coun- by the rear wheel. The chauffeur testified: ty; W. 0. Thomas, Judge.

"Q. How fast were you driving this car, if "Not to be officially published.”

you know, at the time of the collision ? A. We

were traveling very slow. Q. Well, about what Action by Lena Hopfinger against W. B. rate of speed would you say? A. In the vicinYoung. Judgment for plaintiff, and de- ity of 12 or 14 miles an hour. Q. When did fendant appeals. Affirmed.

you first see the boy that the machine collided

with ? A. After we stopped. Q. When did you 0. C. Mosman, of Kansas City, for appel- first know that there had been a collision ? A. lant. Langsdale & Howell, of Kansas City, Well, I heard all of a sudden somebody scream, for respondent.

something hit the car, and I was very much astonished, and stopped as quick as I could. Q.

How far did you run after you started to stop ? JOHNSON, J. Plaintiff, the mother and A. I think-we measured it; I think it was only surviving parent of Henry Flaig, de- right close to twelve feet, as Í remember it.ceased, sued to recover damages for his The petition alleged acts of ordinary neglideath, which she alleges was caused by negli- gence, and also negligence under the humanigence of defendant. Henry was 12 years tarian rule. Other parties were joined as old at the time of his death, which occurred defendants, but an involuntary nonsuit was August 14, 1910, at the intersection of Twen- taken as to one, and the action was disty-Fifth and Charlotte streets, in Kansas missed as to others, leaving Young, theowner of the car, as the sole defendant. I of nonactionable wrongs by the contributory His demurrer to the evidence was overruled, negligence of the boy. Therefore the princiand the cause was submitted to the jury in pal question for determination is whether or instructions which allowed a recovery for not the evidence of plaintiff discloses a cause plaintiff only on the ground of a negligent of action under the "last chance" rule. breach by defendant's chauffeur of a duty he should the chauffeur, if he had been in the owed the deceased under the humanitarian exercise of reasonable care, have discovered rule.

the dangerous situation of the boy in time On behalf of plaintiff the jury were in- to have averted the collision by stopping or structed:

checking the speed of the car? Surprised by "That if you believe and find from the evi- the collision which gave him his first knowldence that the plaintiff was, on the 14th day edge of the presence of the boy, the chaufof August, 1910, the sole surviving parent of Henry Flaig, a minor, and that the said Henry feur stopped the car in 12 feet, and it is fair Flaig came to his death by reason of a collision to assume that he could have stopped in that with the automobile mentioned in evidence, and distance if he had looked up Charlotte street if you further believe and find from the evidence that said automobile was the property of de- as the car passed over the intersection and fendant W. B. Young, and the driver thereof have discovered, as every one else who was the employé of said Young, and at said time was looking did discover, that the boy was rushacting within the scope of his employment, and that said Henry Flaig was just before said col-ing to a collision and was without ability to lision rapidly coasting down Charlotte street save himself. Counsel for defendant conand approaching Twenty-Fifth street, and in tend there was nothing in the appearance imminent danger of being struck by said au- of the boy to suggest that he was in danger tomobile, and that the driver of said automobile saw, or by the exercise of ordinary care might and would not follow the example of his or would have seen, said Henry Flaig approach companion and turn on to the dirt path, but ing the intersection of the streets mentioned in the eyewitnesses, observing that he carried evidence and in a position of imminent peril, if no stick and was making visible, though fuyou find and believe from the evidence he was in a position of imminent peril, in time there- tile, efforts to stop or change his course, realafter, by the exercise of ordinary care on his ized his peril, and it is obvious that the part 'and by means of the appliances at hand, chauffeur would have been similarly impressand with reasonable safety to the occupants of said automobile, to have stopped the said au- ed if he had looked in that direction. His tomobile or to have changed the course thereof, failure to look, which he concedes, was a diand thereby to have averted the collision with rect cause of the injury, and was negligence said Henry Flaig, and negligently failed to do so, and that by reason and as a direct result under the humanitarian rule, unless it should thereof the said Henry Flaig was killed, then be said that he was under no duty to anticyour verdict will be for the plaintiff and against ipate that boys would be making a negligent defendant W. B. Young, even though you may and dangerous use of a public sidewalk and further find from the evidence said Henry Flaig was guilty of negligence on his part which di- crossing. rectly contributed to his death."

In the recent case of Rowe v. Hammond, The jury returned a verdict for plaintiff, 172 Mo. App. 203, 157 S. W. 880, a boy coastand defendant appealed.

ing down a public street in Kansas City, in In the argument of the demurrer to the violation of an ordinance, collided at a street evidence which defendant insists should have intersection with an automobile running on been given counsel for both parties proceed the cross-street. The chauffeur did not look from the hypothesis that the boy was neg- to either side as he approached the crossligent in law in racing downhill on a public ing, and it was argued by the defendant that sidewalk at such high speed, under condi- he owed the plaintiff no duty under the last tions which deprived him of the power to chance rule to be on the lookout for him. stor at the street crossing or even to alter We rejected this argument, on the ground his course. His negligence, thus conceded, that the plaintiff was not a trespasser on the will be assumed for present purposes, and street, but was exercising a lawful right to will be regarded as a potent cause of the travel a street for pleasure in an unlawful perilous situation which arose from the co-manner, that his rights were to be measured operation of that cause with the act of the by the duty the chauffeur owed the public chauffeur in driving the car across his un- using the streets, and that such duty requiralterable course over the crossing. It re-ed the chauffeur to keep his car under conquired the joint action of both of these agen-trol at street crossings and to look both to cies to produce the injury; since the boy right and left on cross-streets for persons in would have cleared the crossing in safety if positions of danger. We are satisfied with the car had been kept out of his way, and the justice and humanity of that decision, the passing car would not have been a men- and repeat that it is negligence for an autoace to his safety if he had not lost control ist to run at dangerous speed over such crossover himself by his own negligence.

ings without looking to see whether or not [1] In such state of case plaintiff could not the way is clear. The boys were lawfully on recover on a cause founded upon negligence the street, were exercising a lawful right in of the chauffeur which concurred in the pro-a negligent manner, and the chauffeur was duction of the dangerous situation since such negligent in not looking in their direction of danger. The demurrer to the evidence Appeal from Circuit Court, Jackson Counwas properly overruled.

ty; Daniel E. Bird, Judge. The quoted instruction given at the re- "Not to be officially published.” quest of plaintiff is criticized on the ground Action by Estella E. Yount against the that it failed to require the jury to find Prudential Life Insurance Company. Judg"that the deceased was oblivious to his own ment for defendant, and plaintiff appeals. danger or ignorant of the presence of de- Affirmed. fendant's machine, or that, being aware of his danger, deceased was unable to protect and McAnany & Alden, of Kansas City, Kan.,

Sherman & Landon, of Kansas City, Mo., himself or do anything to avert the acci- for appellant. Haff, Meservey, German &

to dent.” The proof shows beyond question

Michaels, of Kansas City, Mo., for respondent. that the boy was aware of his danger, but was unable to avert it, and that his danger was obvious. His negligence which had

TRIMBLE, J. As the widow of Leon L. brought him into peril had been succeeded Yount, deceased, plaintiff seeks to recover by helplessness, and the fact that he was upon an alleged contract of insurance beconscious of impending and imminent dan- tween her late husband and the defendant, ger did not relieve the chauffeur of his duty of which contract, if it exists, she is the not to injure him, but required the chauffeur beneficiary. Defendant insists that, accordto make every reasonable effort to save him. ing to the express terms of the negotiations Obliviousness to peril on the part of an en- | between it and deceased, there was to be dangered person is material in last chance no contract of insurance until the policy had cases only in instances where such person

been issued and delivered to the husband has means of saving himself, and his peril while in good health, and that, as there was consists, in part at least, of his ignorance of no delivery of the policy to him, no contract the approaching danger. The instruction

of insurance was in existence at the time of

his death. properly presented every essential element

[1, 2] So far as we can ascertain from the of a good cause of action.

[2] Instruction numbered 8, asked by de- record, there does not seem to be any dispute fendant, was properly refused, since its es

as to the facts in the case, though there is sential elements were fully embodied in de considerable difference of opinion as to the fendant's given instructions numbered 6 legal conclusions to be drawn from those and 7.

facts. Leon L. Yount was a piano salesman There is no substantial error in the rec

for the Starr Piano Company of Kansas City. ord, and the judgment is affirmed.

All con

On the evening of January 22, 1914, he sign

ed and delivered to H. C. Garnett, one of decur.

fendant's agents who had solicited his in

surance, a written application to defendant YOUNT V. PRUDENTIAL LIFE INS. co. for a ten-year term policy of life insurance (No. 11657.)

for $5,000, the quarterly premium on' which (Kansas City Court of Appeals. Missouri.

was to be $14.65, and the beneficiary therein Oct. 4, 1915.)

to be the applicant's wife. Among the stipu1. INSURANCE Omw 136–LIFE INSURANCE-DE

lations in the application, and appearing just LIVERY OF POLICY-NECESSITY.

above the applicant's signature, was an agreeWhere, according to the terms of negotia- ment that the application should become a tions between a life insurance company and an part of the contract of insurance, and that applicant for insurance, embodied in the appli; the policy applied for should be accepted cation, which provided that it should be part of the insurance contract, there was to be no subject to the privileges and provisions therecontract of insurance until the policy had been in contained, “and said policy shall not take issued and delivered to the insured while in effect until the same shall be issued and degood health, and where the insured died while the policy, unissued to him, was yet in the livered by the said company, and the first hands of the agent who had procured him to in-premium thereon paid in full, while my sure in the company, which had shortly before health, habits, and occupation are the same written the policy, such company was not liable to the beneficiary on the

policy; delivery being as described in this application.” a condition precedent to liability.

It seems that Garnett agreed to purchase a [Ed. Note.-For other cases, see Insurance, piano on the installment plan, and the arCent. Dig. 88 219-230; Dec. Dig. Om 136.] rangement between the two men was that 2. INSURANCE 141-LIFE INSURANCE-RE- Yount caused his employer, the Starr Piano

QUIREMENT DELIVERY OF POLICY - Company, to give Garnett a receipt for $10,
WAIVER.
Where the application for life insurance,

being first payment of the piano, while Garexpressly made a part of the policy, provides nett gave to Yount a receipt for $10 “on acthat the policy must be actually delivered to the count of first quarterly premium.” No cash insured in good health before the contract of actually passed in the transaction, but each insurance is in force, actual manual delivery of the policy as a condition precedent to its liabil-party accounted to his principal for the ity may be waived by the insurance company. money represented by the receipt he had

[Ed. Note. For other cases, see Insurance, given; and when Garnett turned the apCent. Dig. 88 75, 253–262; Dec. Dig. Om 141.] plication in to Sullens, defendant's local su

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