Singer v. St. Louis, K. C. & C. Ry. Co.

• Decision Date: 18 June 1906
• Citation: 119 Mo. App. 112,95 S.W. 944
• Court: Missouri Court of Appeals
• Parties: SINGER v. ST. LOUIS, K. C. & C. RY. CO.

95 S.W. 944

119 Mo. App. 112

SINGER v. ST. LOUIS, K. C. & C. RY. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied July 2, 1906.

PARENT AND CHILD — ACTION FOR INJURIES TO CHILD—DEFENSES.

In an action for injuries to plaintiff's minor son, the defense of emancipation must be pleaded and proved by defendant.

Appeal from Circuit Court, Miller County; W. H. Martin, Judge.

Action by Andrew Singer against the St. Louis, Kansas City & Colorado Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. F. Evans, A. H. Bolte, and Frank P. Sebree, for appellant. W. S. Pope, for respondent.

ELLISON, J.

Plaintiff brought this action against defendant, charging that he and his minor son received personal injuries by falling from a defective hand car while in the employ of defendant. The jury found against plaintiff as to any injury or damage to himself, but found for him on account of injury to, and consequent loss of services of, his son. We regard the judgment in the trial court as manifestly for the right party and the amount of the verdict as reasonable. The instructions for the plaintiff were without fault, and all asked by the defendant were given except its demurrer to the evidence.

It is contended, however, that the evidence shows that plaintiff's son knew of the condition of the hand car and of the risk of danger in riding thereon. We do not regard that the evidence makes a case of assumption of risk in such way as to justify the court in so declaring as a matter of law. The most that can be said is that it was a question for the jury, and, as such, it was duly submitted in the instructions asked by defendant, and given by the court. It is argued that the minor son was emancipated by the plaintiff, and that therefore plaintiff was not entitled to his earnings, or at least that it was a question whether he was so emancipated, and that it should have been submitted to the jury. But the petition alleges that the young man was the plaintiff's minor son, and that by reason of his injury the plaintiff had lost his services. The defendant does not plead that the son was emancipated. To make the emancipation of a minor child an issue in an action for loss of service, as is here brought, it devolved upon the defendant to plead the emancipation. It was matter in avoidance of plaintiff's right of action. Emancipation of the child is never presumed. If relied upon by a defendant, he must prove it....