Police Relief Ass'n v. Houlehin. St. Louis Police Relief Association. Having in mind that the fund, under the objects provided for in the constitution of the association, can be paid only to members of families of police officers who may die while members in good standing in the association, it therefore becomes necessary to determine whether or not Margaret Houlehin, the mother of the deceased, can in legal contemplation be held to have been a member of Patrick J. Houlehin's family. What definition of the word "family" shall be our guide in determining? The word "family" has been variously defined. In its widest scope it would include all the descendants of a common progenitor, as when we speak of one's family tree, but when used in its primary sense it is often used to designate that collective body of persons who live in one house under one head or management. Of the various definitions of the word "family," when used in the latter sense, we find that in construing the word "family" when used in the constitution of a benefit society, declaring its purpose, amongst others as that of aiding the families of members, the court held it to mean "such persons as habitually reside under one roof and form one household or such as are dependent on each other for support or among whom there is a legal or equitable obligation to furnish support." [Hofmann v. Grand Lodge, 73 Mo. App. 47; Lister v. Lister, 73 Mo. App. 99; Ferbrache v. Grand Lodge. 81 Mo. App. 268.] We are of the opinion that this definition of the word family is comprehensive in its scope and we shall apply it here. Under this definition it must be conceded that had the mother been living with and supported by the son, she would unquestionably have been a member of his family. Does then the fact that the mother was living at St. Ann's Widow's Home and thus not living with her said son, at the time she was named as beneficiary and at the time of the decease of her son Patrick, of itself exclude her from being in contemplation of law considered as a member of her son's "family," within the meaning of the word "family" as used in the Police Relief Ass'n v. Houlehin. constitution of the association? We think not; provided that during all of said period the mother was dependent upon and was supported by her said son. While upon this question of dependency and support the evidence was conflicting, yet one cannot read the record in this case without concluding that the testimony which was adduced on the part of the defendant, mother, greatly preponderated, and that when she went to St. Ann's the arrangements for her going there had been made at the suggestion of her son Patrick and upon his agreeing to pay St. Ann's the sum of $10. per month for her maintenance and support, and that he did, in point of fact, pay the agreed, stipulated sum up to the time of his decease. Several of the witnesses testified that the son had given them money to be paid to St. Ann's; the records of the institution show that monthly payments had in point of fact been made, and in the light of the detailed history of the mother's financial affairs, which failed to show her possessed of any funds during the years immediately preceding her going to St. Ann's-years during which she had admittedly been living as a member of said son's, Patrick, home, together with his wife and children, and not paying any board-is sufficient to warrant the finding of the learned trial judge that the mother was, in contemplation of law, a member of her son's family at the time of his decease. The fact that several witnesses testified that the mother, who at the time of the trial was 87 years old, had, on various occasions, stated that she had means of her own and was not dependent upon any one, must be taken in light of human experience, which has taught us that the average person is not prone, when by reason of misfortune or advancement in years, they may have become an object of charity, to proclaim it from the housetop, but rather, if curcumstances arise which require any statement as to the matter, to speak so as to leave or create the impression that they are self supporting. And beyond Police Relief Ass'n v. Houlehin. such statements testified to by several witnesses as having been made by the mother, no testimony was adduced of any probative value which proved, or from which one could infer, that the mother, during the last years of her life, had any means of her own what soever. Even were the testimony in this case more evenly balanced in its conflict as to whether or not the mother was dependent upon her son while she lived at St. Ann's, which however, as above stated we do not find to be the case herein, we would not be disposed to interfere with the conclusions reached by the learned trial judge who had each of the witnesses before him and thus had a better opportunity to judge the credibility of the witnesses and the weight to be given to their testimony. While the claim of the wife, as presented in this case, appeals strongly to one's sense of equity, yet we are without authority to determine this case excepting upon the rule of law applicable to this class of cases. Holding as we do that the mother was dependent upon her son for support at the time she was named as beneficiary continuously up to the time of his decease, it follows that the mother came within that class of beneficiaries intended to be covered by the constitution of the St. Louis Police Relief Association, where as one of its objects it provides for "aiding the families of police officers who die while members in good standing." The judgment is accordingly affirmed. Reynolds, P. J., and Allen, J., concur. Probst v. Basket & Box Co. ELIZABETH LAVERE PROBST and EARL JOSEPH PROBST, by their next friend, FRANK J. GROB, Respondents, v. ST. LOUIS BASKET & BOX COMPANY, a corporation, Appellant. St. Louis Court of Appeals. Opinion Filed January 7, 1919. 1. EVIDENCE: Admissions of Record: Judicial Admissions: Conclusive. Judicial admissions are those made in court by a person's attorney for the purpose of being used as a substitute for the regular legal evidence of the facts at the trial, and when admissions of this character are formally made for the purpose of waiving certain proofs or rules of practice they are conclusive upon the client, and cannot be withdrawn. 2. PLEADING: Waiver of Defects: Nonsuits: Appellate Practice. Where counsel for defendant, in open court, during the progress of the trial, solemnly admitted that the present suit had been instituted by plaintiffs within one year from the date of the former judgment of nonsuit, the appellate court will refuse to reverse and remand a cause on the sole ground that plaintiff's petition was defective in failing to contain such necessary allegation, when the record of the case further shows that no objection was made by the defendant during the trial to the introduction of evidence on behalf of the plaintiffs to prove the truth of such fact. 3. MASTER AND SERVANT: Injuries to Servant: Evidence. In an action for the death of a servant caused by his falling into a tank of boiling water, held, under the pleadings, that testimony that there was no railing around the tank, and that whether or not a railing should and could have been placed in or on the tank, without interfering with the doing of the work, and which would have protected the men while at work about and upon the walls thereof from falling in, was admissible. In an 4. WITNESSES: Expert Witness: Qualifications: Evidence. action for the death of a servant caused by his falling into a tank of boiling water, a witness, who had been a carpenter for five years and had worked for defendant of and on for eight years, held competent and sufficiently qualified to testify that a railing could be built about the tank, which would safeguard the men from falling into the tank while at work, and that such a railing would not interfere with the practical operation of the tank. 5. MASTER AND SERVANT: Injuries to Servant: Case for the Jury. In an action for the death of a servant caused by his Probst v. Basket & Box Co. falling into a tank of boiling water which was not protected by a railing, evidence examined and held that plaintiffs made out a case for the jury. 6. APPELLATE PRACTICE: Motion for New Trial: Assignments of Error in Giving and Refusing Instructions: Requirements for Review. Assignments of error in a motion for a new trial to the effect that the court erred in giving improper and erroneous instructions over the objections of defendant, and in refusing proper and correct instructions offered by defendant, do not measure up to the requirements and are insufficient to bring up for review on appeal the instructions given or refused by the trial court. Appeal from the Circuit Court of the City of St. Louis. -Hon. Thomas C. Hennings, Judge. AFFIRMED. Kelley & Starke and Chas. E. Morrow for appellant. The petition does not state a cause of action. The death is alleged to have occurred on January 25, 1913, and this suit was filed November 20, 1914, one year and ten months later. The allegations in the petition that plaintiffs did "within one year of the time of said death bring an action for damages on the same cause of action set forth in this petition and that plaintiffs suffered a non-suit in said action" is not sufficient, because it does not allege the date of said non-suit, nor that this action was brought within one year after said non-suit, as required by Statute. The limitation provided by the Damage Act creating this action is not merely a remedy, but it is a part of the right of action itself, and the petition must show that it was brought within the time allowed by law. Clark v. Railroad, 219 Mo. 524; Tiffany, Death By Wrongful Act, section 121. Leonard & Sibley for respondents. (1) Pleadings will be liberally construed to prevent a defeat of justice, particularly after verdict. A party on appeal will not be heard to argue the absence of pleading on evidence waived at the trial. Cobb v. Railroad, 149 Mo. 135, 143 and 144; Stamper v. Hammond P. Co., 180 S. W. 1076. (2) If the master is |