119 Mo. App. 112 | Mo. Ct. App. | 1906
Plaintiff brought this action against defendant charging that he and his minor son received personal injuries by falling from a defective handcar 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.
It is contended, however, that the evidence shows that plaintiff’s son knew of the condition of the handcar 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. [Rodgers’ Dom. Rel., sec. 485; Schouler’s Dom. Rel., sec. 267a; Sumner v. Sebec, 3 Greenl. 223; Clay v. Shirley, 65 N. H. 644.] Necessarily, if a defendant relies upon emancipation to defeat the parent’s claim, he must allege it. We, in effect, so ruled in Zongker v. Mercantile Co., 110 Mo. App. 389.
An examination of the entire record shows no reason for interference and the judgment will be affirmed.