## Facts

- David Cash, a Missouri National Guard staff sergeant, received a brochure at a drill offering $50,000 spousal life insurance from a private organization.
- Cash sought assistance from unit clerk Vicki Benward in obtaining coverage because he was unsure how to apply.
- Cash alleged Benward told him to complete the application, mail it to her with an $8 premium check, and she would forward it to the insurer.
- Cash mailed the application and check to Benward; Benward did not recall the conversation or receiving the mailing.
- Forwarding spousal life insurance applications was not part of Benward’s unit-clerk duties.
- After Cash noticed the check had not cleared, he asked Benward and her supervisor, James Sisk, about the application at a later drill; Benward said she knew nothing about it.
- Cash alleged Sisk said he had seen a personal check on Benward’s desk, suggested the application might have been discarded, and offered to help obtain another application at the next drill.
- At the next drill, Sisk provided another application and told Cash he was responsible for completing it; that night Cash’s wife became ill and died before a new application was completed or submitted.
- Cash sued Benward and Sisk for breach of an alleged oral contract and, alternatively, negligence based on their failure to process or forward the application.

## Issues

1. Whether an enforceable oral contract existed when defendants allegedly promised to forward an insurance application, where Cash provided no bargained-for consideration to defendants.
2. Whether defendants’ alleged agreement to help forward the application created a tort duty under a voluntary-undertaking theory, including Restatement (Second) of Torts § 323, supporting negligence liability for nonperformance.

## Decision

- The appellate court affirmed summary judgment for Benward and Sisk on both claims.
- No enforceable contract existed because the alleged promise to help was gratuitous and unsupported by consideration.
- Promissory estoppel did not apply because the alleged statements were too indefinite and not reasonably expected to induce definite and substantial action or forbearance.
- No negligence liability existed because defendants’ conduct did not constitute an actionable undertaking creating an independent tort duty, and the required elements tied to physical harm or increased risk were not shown.

## Legal Principles

- An enforceable contract requires consideration: a bargained-for legal benefit to the promisor or legal detriment to the promisee; gratuitous promises are not contracts.
- Reliance does not substitute for consideration absent facts satisfying promissory estoppel; vague or informal assurances that a reasonable person would not expect to induce definite and substantial action are insufficient.
- Under Restatement (Second) of Torts § 323, negligence liability for an undertaking requires more than an unperformed promise; liability generally depends on affirmative performance that increases risk of harm or results in physical harm tied to reliance.
- Economic loss from the absence of insurance coverage, without a recognized independent tort duty and without the required physical-harm elements, does not support a negligence claim based solely on a promise to help.

## Conclusion

The court held that defendants’ alleged assurances to assist with obtaining spousal life insurance were gratuitous and lacked consideration, defeating the contract claim, and that the same allegations did not establish an independent tort duty under a voluntary-undertaking theory; summary judgment for defendants was affirmed.


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