Kirk v. Middlebrook

• Decision Date: 22 February 1907
• Parties: KIRK v. MIDDLEBROOK et al.
• Court: Missouri Supreme Court

100 S.W. 450

201 Mo. 245

KIRK v. MIDDLEBROOK et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. PARENT AND CHILD—RIGHT OF ACTION IN CHILD—RELEASE BY PARENTS—VALIDITY.

A child having a right of action for a negligent injury inflicted on him at birth, may prosecute the same and recover the damages sustained, unhampered by any defense predicated on a release executed by his parents.

2. HUSBAND AND WIFE—INJURIES TO WIFE—RELEASE—JOINDER OF HUSBAND.

Where an injury to an unborn child is deemed an injury to the person of the mother, her husband must join with her in a release of all claims for damages therefor; he having an independent right of action for damages to him resulting from the injury.

3. SPECIFIC PERFORMANCE—CONTRACTS—PROOF OF CONSIDERATION—SUFFICIENCY.

In a suit to compel the performance of a contract by a physician, since deceased, to educate a child and provide for him by will, in consideration of a release by the mother for injuries inflicted by the physician on the child during birth, evidence examined, and held insufficient to show a liability on the part of the physician for the injury, thereby depriving the contract of a consideration essential to performance.

4. SAME—PAROL CONTRACT—PROOF—SUFFICIENCY.

In a suit in equity to enforce a parol contract void under the statute of frauds and the statute of wills, the proof of the contract, its terms and consideration, must be beyond a reasonable doubt.

5. SAME.

In a suit in equity to enforce a parol contract void under the statute of frauds and the statute of wills, evidence held insufficient to establish the contract and the terms thereof.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Maggie Kirk, as trustee for the use of Eugene J. Kirk, against Robert B. Middlebrook, administrator of Charles W. Adams, deceased, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Reed, Yates, Mastin & Howell and Jos. S. Brooks, for appellant. P. E. Hatch and C. O. Tichenor, for respondents.

LAMM, J.

Dr. Adams (of middle age) died in Kansas City on August 3, 1899, intestate, possessed of an estate of $60,000. Presently, on August 5th of the same year, Mr. Middlebrook, of the Kansas City bar, qualified and took upon himself the burden of administering upon his estate. On August 9, 1901, Mrs. Kirk and her husband lodged a bill in equity against Middlebrook and the unknown heirs of Adams, the object of which was to decree Mrs. Kirk a distributee in Adams' estate on behalf of her child, Eugene Joseph Kirk, to the amount of $5,000. Cast on a hearing on the merits, plaintiff appeals here.

By subsequent pleadings (the case being tried on a third amended petition) there were some realignment of parties and readjustment of issues. For example, the husband of plaintiff was made a party plaintiff in the first petition—whether a real or nominal party does not appear. Again, when the suit was brought, the heirs of Dr. Adams were unknown. Subsequently, a brother and sister by the half-blood appeared, and, intervening, claimed the estate as heirs at law. When the third amended bill was filed (January 21, 1903), the husband of plaintiff disappeared as a party (reappearing later in the capacity of a witness at the trial), and the brother and sister by the half-blood, with the husband of the latter, were made codefendants with the administrator. Referring to the readjustment of issues, it may be said we have nothing before us to indicate in what it consists, except, in an additional abstract filed by defendants, it appears that a motion to elect was filed and sustained to the second amended petition, whereupon plaintiffs filed an election in the following words: "Now come plaintiffs and elect to proceed upon the cause of action arising under agreement of Charles W. Adams, deceased, to provide for Eugene Joseph Kirk, by will, said agreement and promise having been made about the 1st day of April, 1898, and on other occasions prior to said date, and plaintiffs further state that their action is one in equity, and that their petition seeks and asks only equitable relief." Presently, after such election, a third amended petition was filed.

As the case is singular, it will not be space misapplied to let the petition tell its own story, thus:

"The plaintiff, Maggie Kirk, for her third amended petition, leave of court having been first had and obtained for filing same, and this suit having been dismissed as to Eugene Kirk, and Andrew Faschian, Johanna Bertha Sontgen Faschian, and Johann Hubert Wisner having been made parties defendant hereto, says: That the plaintiff, Maggie Kirk, is the mother of one Eugene Joseph Kirk, a minor, for whose benefit she brings this suit; that the defendant Robert B. Middlebrook is the administrator of the estate of one Charles W. Adams, deceased, duly qualified according to law, and now in the discharge of his duties as such administrator; that the said Charles W. Adams died on or about the 3d day of August, 1899, leaving a large estate of about the value of $60,000, consisting of both realty and personalty, and lying and being situated in the city of Kansas City, Jackson county, Mo.; that said Robert B. Middlebrook has in his possession as administrator such of the personalty as has been discovered, and also is, by the order of the probate court of Jackson county, Mo., collecting the rents from the real estate of which said Charles W. Adams died seised; that the defendants Johanna Bertha Sontgen Faschian and Johann Hubert Wisner are brother and sister of the deceased, Charles W. Adams, of the half-blood, and as such are the only heirs of said Charles W. Adams.

"Plaintiff further says that said Engene Joseph Kirk is of about the age of 11 years, and was born on the 30th day of July, 1891; that the said Charles W. Adams, deceased, during his lifetime was a physician and attended the plaintiff, Maggie Kirk, at the time of the birth of the said Eugene Joseph Kirk, minor, and the said Charles W. Adams delivered said Eugene Joseph Kirk, son of plaintiff, from the womb of the plaintiff, Maggie Kirk; that said Charles W. Adams delivered said Eugene Joseph Kirk, minor, by the use of instruments, and while so doing used said instruments in such manner that the head of said child was cut and bruised and pressed out of shape. And plaintiff further says that the said Charles W. Adams carelessly and negligently cut and bruised the said minor child of the plaintiff about the head by carelessly and negligently twisting, turning, pressing, and pulling the aforesaid instruments about the head of said minor child, and so the said Charles W. Adams carelessly and negligently cut and bruised and injured the said Eugene Joseph Kirk, minor child, and the plaintiff, his mother, as aforesaid, about the head of the said Eugene Joseph Kirk.

"The plaintiff further says that the said Eugene Joseph Kirk was, by the above acts of the said Charles W. Adams, injured in such a manner that he has always been weakly and delicate on account of such injuries, and in such manner that he can never have good health. And the said Charles W. Adams orally and verbally entered into an agreement with plaintiff on account of the above said injuries to said minor child, and to plaintiff, that he would educate said minor child, and would pay the expenses of said minor child at a medical college, and have him graduated therefrom, and afterwards take him into his office with him as a partner. And said Charles W. Adams further agreed and promised plaintiff that, in the event of the death of said Charles W. Adams, he would provide for said minor child by will, and would bequeath to him a sum sufficient for a general collegiate and medical education, and to properly start him in the practice of medicine, and thereafter promised and agreed to make a will and to bequeath to said minor child the sum of $5,000, so that the said minor child would be provided for, if the said Charles W. Adams should die before he carried out his agreement with plaintiff to educate said minor child.

"Plaintiff further says that she cannot state the exact date of said oral and verbal agreements of said Charles W. Adams to educate and provide for said Eugene Joseph Kirk, but that said Charles W. Adams made said agreements with plaintiff shortly after the birth of said Eugene Joseph Kirk, and within six months thereafter, and renewed said agreements and promises on divers occasions thereafter. And plaintiff further says that thereafter, on or about the 1st day of April, 1898, the said Charles W. Adams, then and there being in bad health, and about to go as a surgeon to the Spanish War, and being fearful that he might not be able to carry out his agreement and promise to plaintiff, made for the benefit of said Eugene Joseph Kirk, agreed and promised to provide for said Eugene Joseph Kirk by will, and to bequeath to him a sum sufficient to carry out the purposes hereinbefore set forth.

"Plaintiff further says that by reason of the premises and by reason of the various promises and agreements hereinbefore set forth, and in consideration thereof, plaintiff relinquished all claims against said Charles W. Adams by reason of the above said injuries to said plaintiff, Maggie Kirk, and that she has fully performed on her part all her agreements with said Charles W. Adams. And plaintiff further says that said promises and agreements made by said Charles W. Adams with plaintiff on or about the 1st day of April, 1898, were made in consideration of the facts hereinbefore set forth, and in consideration of the prior promises and agreements of said Charles W. Adams with this plaintiff, to provide for said Eugene Joseph Kirk, as hereinbefore set forth.

"Plaintiff further says that the said Charles W. Adams died intestate, without making provisions for the said Eugene Joseph Kirk, and that the defendant Robert B. Middlebrook was duly appointed administrator...