son's services in working for and nursing decedent during a term of years, evidence held sufficient to support finding that the parties had a mutual and often expressed understanding that the services were not gratuitous, but to be compensated.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. $$ 901-90312: 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. 221.]

4. EXECUTORS AND ADMINISTRATORS

206

and made a home for themselves on a part of the farm which now belongs to the estate. John, who took the name of Biggerstaff, married and made another home, leaving his mother and stepfather. Two children were born to him by his wife, viz., the plaintiff, Charles, and a daughter whom they named

Ruth. The mother of these children died in 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 remained 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. mm 206.]

After the death of their father, the chil

Appeal from Circuit Court, Clinton Coun-dren were supported by their grandparents, ty; A. D. Burnes, Judge.

Action by Charles Biggerstaff, Jr., against H. R. Riley, administrator of the estate of Charles Biggerstaff. Judgment for plaintiff, and defendant appeals. Affirmed.

W. S. Herndon, of Plattsburg, for appellant. Frost & Frost, of Plattsburg, for respondent.

JOHNSON, J. This action originated in the probate court of Clinton county upon the following demand filed by plaintiff against the estate of Charles Biggerstaff, deceased: To working on the farm, looking after

and caring for stock, for and beginning March 6, 1905, for ten years, ending March 6, 1914, at the rate of $25 per month or $300 per year.... $3,000.00 To caring for and waiting on deceased and furnishing board and provisions for and from March 6, 1905, to and ending March 6, 1914, at the rate of $15 per month..

... $1,800.00

The cause was tried in the probate court, and on appeal in the circuit court, resulting each time in a verdict and judgment for plaintiff for the full amount of the demand. The facts of the case, as disclosed by the evidence introduced at the trial in the circuit court, are as follows: Charles Biggerstaff, an aged negro, died intestate in Clinton county, March 6, 1914, leaving neither widow nor descendant, but leaving an estate consisting of a farm of 70 acres near Plattsburg, the county seat, and cash and solvent notes amounting to about $7,000. He was born and reared in slavery in Kentucky, and was married in that state to a negress called in the evidence "Aunt Jane," who, at the time of the marriage, had a son named John. The three were slaves of Wilson Biggerstaff, who brought them with him on his removal in 1857 Clinton county. from Kentucky to Clinton When they were freed from slavery, the three left the service of their former owner

and, in their childhood, were sent to school. They were industrious and worked faithfully. Four years before her death their grandmother was stricken and rendered helpless by paralysis, and the work of the children grew heavier. During the last 10 years of his life the deceased was infirm and afflicted with a malady which required the almost

constant attention of a nurse. Plaintiff discharged those duties, and, in addition, performed all of the work on the farm, for which he received no compensation. In addition to doing such work, he worked for farmers in the neighborhood, using the money he earned for the support of the family. In short, during the period for which he now claims compensation, he was farmhand and nurse for a helpless and diseased old man, and most faithfully and efficiently performed his onerous duties.

There is evidence tending to show that plaintiff and deceased had a mutual understanding that the services were not being gratuitously rendered, but were to be adequately compensated. Plaintiff's sister testified that on different occasions during the last 10 years of his life the old man, in her presence, declared his intention to plaintiff to pay him well for his services. "He said he was going to pay Bud [plaintiff] and pay him well for what he had done, and my brother said 'All right.'"

Two daughters of Wilson Biggerstaff, who exhibited an unselfish interest in their father's old slave, especially after he became helpless, testified to having repeatedly urged him to pay or make some provision for paying plaintiff. One of them said:

"I talked to old Charles about Bud's being so good, and he ought to be paid for it, and old Charles would tell me, 'At my death Bud and Ruth will get everything I have; there is no one else to leave it to, and I expect them to have it.' He didn't pay them a thing while he lived. * * He said that he was going to

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 the evidence amply supports the conclusion expressed in the verdict that plaintiff was to be paid.

Nothing we have said is in conflict with the cases relied upon by defendant. Bircher v. Boemler, 204 Mo. 562, 103 S. W. 40; Erhart v. Dietrich, 118 Mo. 418, 24 S. W. 188; Snyder v. Free, 114 Mo. 360, 21 S. W. 847; Morris v. Barnes' Adm'r, 35 Mo. 412; Hart v. Hart's Adm'r, 41 Mo. 441; Aull Savings Bank v. Aull's Adm'r, 80 Mo. 199; In re Helpbringer, 175 Mo. App. 325, 162 S. W. 288; Brand v. Ray, 156 Mo. App. loc. cit. 630, 137 S. W. 623; Crowley v. Dagley, 174 Mo. App. 561, 161 S. W. 366.

We have sufficiently answered objections urged against the rulings of the court on instructions. The case was tried without prejudicial error.

sidewalk on on the west side of Charlotte street. He had on a pair of freshly oiled, ball-bearing skates, and was striving to overtake his companion, to whom he had given a handicap at the. top of the hill, where the race started. Bircher where the race started. Both were moving at high speed-perhaps 25 miles per houras they approached Twenty-Fifth street; the other boy being still in the lead. An automobile owned by defendant and occupied by four persons approached the street crossing at a speed of 12 or 14 miles per hour from the east on Twenty-Fifth street, and proceeded over the crossing without change of speed at a time when the boys were in a place where to avoid a collision with the car they would be compelled either to stop or to change their course. The boy in front carried a stick, which he skillfully used as a brake and guide, and, so using it, was 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 such high speed that he could neither stop nor alter his course. There is evidence tending to show he was aware of his peril, and that it had become apparent before he reached Twenty-Fifth street, and when the automobile 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 negli-vented from passing athwart his compulsory gent rate of speed, so that he was unable to change his course to avoid running into an automobile driven by defendant owner's chauffeur in the course of his employment, who was negligent in not seeing the child, as did the other occupants of the car, soon enough to stop it to avoid the collision, which he might have done, the owner of such car was liable to the plaintiff for the boy's resulting death.

Judgment affirmed. All concur.

HOPFINGER v. YOUNG. (No. 11608.) (Kansas City Court of Appeals. Missouri. July 2, 1915. Rehearing Denied

Oct. 4, 1915.)

1. MUNICIPAL CORPORATIONS 705-STREETS -AUTOMOBILE ACCIDENT-LIABILITY.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.]

line of travel. A woman and her adult daughter were riding in the car, which an agent of defendant was attempting to sell to them. The mother sat in the rear seat with the agent, and the daughter in the front seat with the chauffeur. The agent testified he realized that the boy had lost control of himself and was in peril when he was 100 feet and the car about 50 feet from the place of collision. The agent halloed, as did others who were witnesses of the accident, but the attention of the chauffeur, who was conversing with his companion, was not diverted to the boy until the latter crashed 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. O. Thomas, Judge.

"Q. How fast were you driving this car, if you know, at the time of the collision? A. We were traveling very slow. Q. Well, about what rate of speed would you say? A. In the vicinity of 12 or 14 miles an hour. Q. When did you first see the boy that the machine collided with? A. After we stopped. Q. When did you first know that there had been a collision? Well, I heard all of a sudden somebody scream, 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? A. I think we measured it; I think it was right close to twelve feet, as I remember it."

A.

The petition alleged acts of ordinary negli

JOHNSON, J. Plaintiff, the mother and only surviving parent of Henry Flaig, deceased, sued to recover damages for his death, which she alleges was caused by negligence, and also negligence under the humanigence of defendant. Henry was 12 years old at the time of his death, which occurred August 14, 1910, at the intersection of Twenty-Fifth and Charlotte streets, in Kansas

tarian rule. Other parties were joined as defendants, but an involuntary nonsuit was taken as to one, and the action was dismissed as to others, leaving Young, the

owner of the car, as the sole defendant. | 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 the collision which gave him his first knowledge of the presence of the boy, the chauffeur stopped the car in 12 feet, and it is fair to assume that he could have stopped in that distance if he had looked up Charlotte street as the car passed over the intersection and have discovered, as every one else who was looking did discover, that the boy was rush

"That if you believe and find from the evidence that the plaintiff was, on the 14th day of August, 1910, the sole surviving parent of Henry Flaig, a minor, and that the said Henry Flaig came to his death by reason of a collision with the automobile mentioned in evidence, and if you further believe and find from the evidence that said automobile was the property of defendant W. B. Young, and the driver thereof the employé of said Young, and at said time was acting 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 and approaching Twenty-Fifth street, and in imminent danger of being struck by said automobile, and that the driver of said automobile saw, or by the exercise of ordinary care might or would have seen, said Henry Flaig approaching the intersection of the streets mentioned in evidence and in a position of imminent peril, if you find and believe from the evidence he was in a position of imminent peril, in time thereafter, by the exercise of ordinary care on his part and by means of the appliances at hand, and with reasonable safety to the occupants of said automobile, to have stopped the said automobile or to have changed the course thereof, and thereby to have averted the collision with said Henry Flaig, and negligently failed to do so, and that by reason and as a direct result thereof the said Henry Flaig was killed, then your verdict will be for the plaintiff and against defendant W. B. Young, even though you may further find from the evidence said Henry Flaig was guilty of negligence on his part which directly contributed to his death."

The jury returned a verdict for plaintiff, and defendant appealed.

save himself. Counsel for defendant contend there was nothing in the appearance of the boy to suggest that he was in danger and would not follow the example of his companion and turn on to the dirt path, but the eyewitnesses, observing that he carried no stick and was making visible, though futile, efforts to stop or change his course, realized his peril, and it is obvious that the chauffeur would have been similarly impressed if he had looked in that direction. His failure to look, which he concedes, was a direct cause of the injury, and was negligence under the humanitarian rule, unless it should be said that he was under no duty to anticipate that boys would be making a negligent and dangerous use of a public sidewalk and crossing.

In the recent case of Rowe v. Hammond, 172 Mo. App. 203, 157 S. W. 880, a boy coasting down a public street in Kansas City, in violation of an ordinance, collided at a street intersection with an automobile running on the cross-street. The chauffeur did not look to either side as he approached the crossing, and it was argued by the defendant that he owed the plaintiff no duty under the last chance rule to be on the lookout for him. We rejected this argument, on the ground that the plaintiff was not a trespasser on the street, but was exercising a lawful right to travel a street for pleasure in an unlawful manner, that his rights were to be measured by the duty the chauffeur owed the public using the streets, and that such duty requir

In the argument of the demurrer to the evidence which defendant insists should have been given counsel for both parties proceed from the hypothesis that the boy was negligent in law in racing downhill on a public sidewalk at such high speed, under conditions which deprived him of the power to stor at the street crossing or even to alter his course. His negligence, thus conceded, will be assumed for present purposes, and will be regarded as a potent cause of the perilous situation which arose from the cooperation of that cause with the act of the chauffeur in driving the car across his unalterable course over the crossing. It re-ed the chauffeur to keep his car under conquired the joint action of both of these agencies to produce the injury; since the boy would have cleared the crossing in safety if the car had been kept out of his way, and the passing car would not have been a menace to his safety if he had not lost control over himself by his own negligence.

[1] In such state of case plaintiff could not recover on a cause founded upon negligence of the chauffeur which concurred in the production of the dangerous situation since such negligence, if any, was relegated to the field

trol at street crossings and to look both to right and left on cross-streets for persons in positions of danger. We are satisfied with the justice and humanity of that decision, and repeat that it is negligence for an autoist to run at dangerous speed over such crossings without looking to see whether or not the way is clear. The boys were lawfully on the street, were exercising a lawful right in a negligent manner, and the chauffeur was negligent in not looking in their direction and stopping the car on the first appearance

YOUNT v. PRUDENTIAL LIFE INS. CO. for a ten-year term policy of life insurance

Where the application for life insurance, expressly made a part of the policy, provides that the policy must be actually delivered to the insured in good health before the contract of 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. §§ 75, 253-262; Dec. Dig. 141.] plication in to Sullens, defendant's local su