Brown v. McCurdy

• Decision Date: 23 June 1923
• Docket Number: 73
• Citation: 278 Pa. 19,122 A. 169
• Parties: Brown v. McCurdy, Admr., et al., Appellants
• Court: Pennsylvania Supreme Court

122 A. 169

278 Pa. 19

Brown v. McCurdy, Admr., et al., Appellants

No. 73

Supreme Court of Pennsylvania

June 23, 1923

Argued April 17, 1923

Appeal, No. 73, Jan. T., 1923, by defendants, from judgment of C.P. Centre Co., Sept. T., 1920, No. 94, on verdict for plaintiff, in case of Mary E. Brown v. Charles M. McCurdy Administrator of Jane G. Brown, deceased, and Harry U Tibbens et al., interpleaded defendants. Reversed.

Assumpsit for services. Before QUIGLEY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $11,284. Defendants appealed.

Errors assigned were various instructions and refusal of judgment n.o.v., quoting record.

The judgment is reversed and is here entered for the defendant non obstante veredicto.

Ellis L. Orvis, with him James C. Furst and W. D. Zerby, for appellants. -- None of decedent's loose declarations or all together amount to more than similar declarations always designated by the appellate courts as of no weight in establishing a contract: Ulrich v. Arnold, 120 Pa. 170.

The family relationship rebuts an implied assumpsit: Neale v. Gilmore, 79 Pa. 421; Houck v. Houck, 99 Pa. 552; Patton v. Conn, 114 Pa. 183; McHenry's App., 148 Pa. 575; Gerz v. Weber, 151 Pa. 396; Gibb's Est., 266 Pa. 485.

There is no contract where services are rendered in expectation of a legacy: Thompson v. Stevens, 71 Pa. 161, 169.

N. B. Spangler, of Spangler & Walker, for appellee. -- Where the relationship is that of daughter-in-law of the party for whom the services are rendered, the presumption of law is that the services were not gratuitous, but were to be paid for: Curry v. Curry, 114 Pa. 367; Davies' Est., 60 Pa.Super. 360; Evans' Est., 60 Pa.Super. 83; Gibb's Est., 266 Pa. 485; Ranninger's App., 118 Pa. 20; Rohrbach v. Ross, 75 Pa.Super. 536.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Jane Brown, a widow, residing in Bellefonte, died in 1918, having survived her husband and three children. A will, dated in 1905, with a codicil two years later, was probated, and subsequently letters of administration c.t.a. were granted to the defendant. A claim was made by the daughter-in-law, Mary Brown, for services as a domestic and nurse from 1903 to the time of death, and suit instituted to recover the amount alleged to be due. The plaintiff offered evidence to show a recognition of indebtedness by the decedent, and the value of her labor, while defendant denied any liability, averring there was no contract to pay, and, further, produced the will, insisting the provision there made for the claimant, if she had any right to compensation, was in satisfaction of her demand. By its terms, plaintiff received the home property with the furniture, a legacy of $600, and a share in the residuary estate. The testimony failed to disclose the total worth of the interest acquired. A trial resulted in a verdict for $11,284, and judgment was entered thereon; defendants appealed.

It appears that a son of decedent, living at the time in California, moved to his mother's home in 1901, and died there two years later. His wife joined him in 1902. She attended her husband, and, after his decease, remained with his mother. Her duties, until 1908, were purely domestic, but a stroke of paralysis, suffered by Mrs. Brown then, made nursing necessary, and this service was performed, in addition, while the latter lived. Appellee claims nothing for the period preceding her husband's death, and the evidence is silent as to anything having been agreed upon or actually paid during that time; but she seeks to recover for practically the entire time thereafter, until the death of his mother. During this period, affectionate relations existed between the two, and the needed attention was given to the decedent. The mother-in-law, a woman of means, paid the house expenses, and it was her practice to satisfy all bills promptly, but, subsequent to 1908, the claimant attended to the necessary details of management. As far as appears, no demand for payment was made at any time, nor was there any evidence that compensation had not been given periodically, as is usual in such cases. Witnesses testified as to the wages earned for like labor in the community, and it is upon this, with proof of certain declarations indicating an admission of liability, that the jury rested its finding.

Claimant came to the home of her mother-in-law at the solicitation of her husband, and remained there as a member of the family until his death in 1903. As already stated, there is no suggestion she was to be paid for any service to be rendered during that period; on the contrary, she was treated as a part of the household, and this relationship existed until the death of Mrs. Brown. A presumption arises that the association, which began in 1902, continued, and unless it could be found from the testimony offered that there had been a change, we must assume that it was unaltered. It has been said, an intention to pay for work done will be assumed except in the case of parent and child. Where, however, it is apparent that the parties, though not so related by blood, in reality bore like connection to each other, the implication does not arise. Under such circumstances it is necessary, before a judgment can be had, that there be proof of an express contract, which must be clearly shown: Ulrich v. Arnold, 120 Pa. 170; Zimmerman v. Zimmerman, 129 Pa. 229. The mere fact that the claimant was a daughter-in-law of the decedent...