Kauss v. Rohner

• Decision Date: 06 January 1896
• Docket Number: 232
• Citation: 172 Pa. 481,33 A. 1016
• Parties: Mary Kauss v. John Rohner, Administrator of John George Kauss, Deceased, Appellant
• Court: Pennsylvania Supreme Court

33 A. 1016

172 Pa. 481

Mary Kauss v. John Rohner, Administrator of John George Kauss, Deceased, Appellant

No. 232

Supreme Court of Pennsylvania

January 6, 1896

Argued October 24, 1895

Appeal, No. 232, Oct. T., 1895, by defendant, from judgment of C.P. Butler Co., March T., 1895, No. 40. Reversed.

Assumpsit to recover for services rendered to defendant's intestate. Before GREER, P.J.

At the trial it appeared that Mary Kauss, whose real name is Mary Swager, had lived in decedent's family from 1876, at which time she was six years old. It appeared that decedent had no children of his own, and that his wife was an invalid. Desiring a girl to raise, he agreed with Mrs. Swager to take Mary, and if the girl should remain with him until his death that she should have all he had. On October 31, 1894 decedent was shot dead in his own house by two robbers. He died intestate leaving his wife to survive him.

Plaintiff was called to the stand.

Defendant's counsel objects to the witness if it is proposed to prove anything in the lifetime of the decedent.

The Court: She is competent to contradict any conversation she had with any person, any conversation that took place in her hearing we will receive this, and give you the benefit of an exception. Bill sealed. [1]

Q. The witness who left the stand a moment ago testified to a conversation he heard between yourself and old Mr. Kauss in regard to your going away when you were twenty-one years of age; just state in your own way what that conversation was, and who the witness was that was present, the name of the witness being Mr. Seor, who was present and heard this talk between you at Mr. Kauss's?

Defendant's counsel objects to the question on the ground of the incompetency of the witness, and the purpose of the question is to contradict statements or declarations of the decedent made to the witness, the plaintiff.

The Court: We will receive it and give you the benefit of an exception. Bill sealed. [2]

George Seor testified as follows. Q. Go on and tell what that conversation was? A. Mr. Reiber: He said he was not present at this conversation, that he (Kauss) told him that Mr. Kauss told this gentlemen (witness) while Mary was present what was said. George Kauss said, "Mary, why don't you go away? You have no more right here, you are twenty-one years old." And she always said she did not want to go away; she said she did not want to go away, that she wanted to stay with him. Q. Did that take place more than once, any conversation like that? A. Several times. He said that she could go away and that she was free, that she was not compelled to stay there, and he said that different times.

The Court: Was Mary present when he said that? A. Yes, sir, she was there working around and sometimes she was sitting there.

[If Mr. Kauss and the mother made an agreement that she was to go and stay there and work there and continue there until Mr. Kauss's death, if Mr. Kauss through negligence or without expecting to be called away, failed to turn it over, the law says he must give to Mary whatever her services are honestly worth.]

You have not a thing to do with the man over in the Fatherland; it don't make any difference to you; you have not a thing to do with the widow; we have a duty to perform and if we undertake to reach outside to outside contracts we will get more on our hands than we can attend to and we will be doing something that our oaths do not require. If this is a debt of Mr. Kauss he must pay it and must pay it because it is a debt. This girl offers this proof, and the burden of proof is on her, the burden is on her to show that there was a contract of some kind by which she was to go to this man's house and remain with him during his lifetime and perform and work according to that contract, and she must show that she did it and when she had done that then she had complied with her part and she can recover. What was the contract? Mr. Kauss is dead; death has closed his lips; they are sealed forever; he is not here and he cannot tell what the bargain was; the law seals this girl's lips, therefore the proof must come outside of them. She puts on the stand her mother, who says this; I will read from her testimony: "Q. Did you have any conversation afterwards with him about it? A. Yes, sir, after she was there a while he came down and got me at Harmony and when he was bringing me back he said if I would leave her with him until his death all he had should be hers, and what he had was hers. Q. Did he tell you what he had? A. The farm and all he had. Q. Did you assent to this arrangement? A. Yes, sir." [If what that lady says is true then there was a contract made on which this girl can recover unless she has in some way violated that contract.] Is it true? If it is not we cannot receive loose declarations to others to establish contracts; there was the proof of Mr. Kauffman and Mr. Dunbar as to statements the old man made to them within the few last years as regards this property. If the mother had not made this arrangement this testimony would not be proper, but it is proper to support and corroborate her statement, [and if you believe that this old gentleman told Mr. Kauffman and Mr. Marburger and Mr. Ripper and Mr. McNiel and Mr. Dunbar that he was going to give this farm to Mary, it is strong corroborative evidence that he made the contract just as Mrs. Williams said he did; you have a right to take it for that purpose.] I said a minute ago that Mary could not be a witness to testify to anything that occurred in the lifetime of the decedent because he cannot tell what occurred, neither does the law allow her to tell, but a latter act allows a party to testify or deny or explain a conversation that is alleged to have taken place between the witness and another party who is a competent witness to testify. [The defendant having put Mr. Seor on the stand to testify to a conversation he heard between Mary and Mr. Kauss relative to this contract, then the law allows Mary to come on the stand and tell her side of the conversation, but nothing else. When Mr. Seor testified then Mary became competent, and you heard her statement.] Let me say if there was a contract between Mary and her mother and Mr. Kauss, as Mrs. Williams says there was, and Mary went on and fulfilled her part and was performing her part of the contract and had done so for fifteen years, Mr. Kauss could not terminate it then after having received fifteen years of her work, but if Mary went away that was the end of it, but if Mary refused to go and stayed, the old man telling her to go would not terminate it, because you can easily see it would not be fair to receive the benefit of a contract for fifteen years and when he would not need her services much longer that he could terminate it and turn her out without anything, and if she was told to go, that would not terminate this contract unless Mary went away and gave it up.] Mary had a right to say, "I have a contract with you and I want my pay, and I cannot get it until you die, and I am going to stay with you until you die." You heard what she said as regards to what the old man did say. Is that true? If it is then she must recover in this case.]

The defendant in this case is an administrator; he is one of the best men in our county, and more than that he wants to do what is his duty, and so far as he is concerned he is doing exactly right. The next question, if you find there was such a contract, is how much are you going to give her. If he were worth a hundred thousand dollars she cannot get this property. She can only get what her services are worth, because the conveyance was not made to her in Mr. Kauss's lifetime. What was it honestly worth? You are here to measure out justice between these parties; you know neither of them; you like the estate as well as Mary; you should not like one better than the other; it is for you to decide how much Mary ought to get; [Mary worked on the farm and in the house; she worked from the time she was six years old until she was twenty-five; part of the time she went to school. The time she was away learning to sew would not be a forfeiture of this contract on her part; she was given her services and you have a right to believe that she was learning to sew for the benefit of the family, to sew for Mrs. Kauss.] [She had no right to anything for services until the old man's death.]

What were her services worth, taking off the schooling she got and books, and any medicine that there is any proof of, and clothing, -- take it all off. [If she worked faithfully and honestly, what were her services worth to this old man and woman? On your oaths and consciences, on the spirit of honor and fairness, on the spirit of right and justice what ought she to get from this estate?] [You heard the testimony of some very good men in the county; you heard the testimony of Mr. Marburger and Mr. Kauffman and Mr. Ripper; are they right? You are not bound to their statements;] [you heard the statement of the old gentleman on the part of the defense; are old men as liberal as younger men? Have they gotten down to the idea that our people have, as to wages? Give that honest consideration and render such a verdict as will give this girl every dollar that is due her honestly.] She got her clothing and [you have a right to consider this that she was not to get any money until his death; suppose she had got wages, would the interest in the long run amount to her clothing? Had she gotten her money every Saturday would it have come to what her clothing amounted to?] [You cannot go over three thousand dollars; you...