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Cash v. Benward - 873 S.W.2d 913 (Mo. Ct. App. 1994)


Summary judgment is granted only where no genuine issue of material fact exists, and judgment is proper as a matter of law, under Mo. R. Civ. P. 74.04(c)(3). A genuine issue of material fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist. The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question. A defending party may establish a right to judgment by showing facts that negate the facts of any one of the claimant's elements; that the non-movant has not and will not produce sufficient evidence to allow a trier of fact to find the existence of any one of the elements; or that there is no genuine dispute as to the existence of each of the facts necessary to support a properly-pleaded affirmative defense.


Plaintiff David Cash was a military policeman in a National Guard unit. Defendant Vicki Benward was a unit secretary, and defendant James H. Sisk was Benward’s supervisor. When Benward distributed a brochure from a private insurance company concerning spousal life insurance, Cash sought assistance from defendants. Benward allegedly offered to forward Cash’s completed application and premium payment to the company. Benward did not recall either the conversation or having received the application. When Cash's spouse died and no insurance was in force, he brought this action. The trial court granted defendants' motion for summary judgment.


Was the grant of summary judgment in favor of defendants proper?




The court affirmed the decision of the trial court. The court ruled that when defendants volunteered to forward an application or gratuitously offered to check on the status of the application, they received no consideration for those offers from Cash. Cash's forbearance from handling the application process himself was not consideration that was sufficient to transform a voluntary offer to help a colleague into a binding oral contract that would be enforceable by the courts.

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