Harrington v. Hickman , 148 Pa. 401 ( 1892 )

Opinion by

Mr. Justice Williams,

The plaintiff served the decedent in the double capacity of housekeeper and nurse, for several years. He was a feeble old man, about eighty years old, and her duties as nurse were rendered more arduous and disagreeable by his gross intemperance. She was not related to him by blood or marriage, but occupied the position of a hired servant or employee. A year or more before his death her health gave way, and thereafter two persons were employed to perform the services previously rendered by her. The services rendered by her could, in the absence of any agreement, fixing a price upon them, have been recovered for upon a quantum meruit: Smith v. Milligan, 43 Pa. 107. The evidence in this case was amply sufficient to justify a jury in finding that the services rendered by the plaintiff were worth at least $5.00 per week, if that question had been before them. But the defendants did not deny that the services claimed for had been rendered, nor did they allege that they were worth less than the witnesses on the part of the plaintiff estimated them at. Their defence was, that the plaintiff had contracted to work at the rate of $1.00 per week, and could recover no more, without proof of a new and additional contract. The learned judge of the court below took this view of the case, and said, in entering the compulsory nonsuit: “ This was a contract between the plaintiff and the defendant. The presumption, without anything further, would be, that it was in full of all the services she rendered. To remove that presumption, it is incumbent on the plaintiff to show that there was an additional contract. In that, we think, she has failed.” The only question raised on this record is, whether there is any evidence that should have been submitted to the jury, upon the question of the decedent’s contract, or promise to pay, for the services of the plaintiff, in waiting upon and nursing him. In Ranck v. Albright, 36 Pa. 367, no promise to pay for the additional services was alleged, but the plaintiff sought to recover a larger price than she had agreed to accept, because the defendant had, after his contract with her, so added to his business as considerably to increase her labor, and the value of her services. She sought to recover, not on her contract, but in spite of it. In this case the plaintiff claims to recover upon a contract. She asserts that she had a contract, covering both sorts of the labor performed by her. As a housekeeper, she says, she was to receive from the decedent $1.00 per week, in cash, and, as a nurse, she was to receive what her services were reasonably worth, to be paid, after his death, by his executors. In support of her position she proved, by a disinterested witness, the declaration of Joseph Pratt, the decedent. This witness testified: “ I was there one morning when she was getting him ready to go out. She got him up, washed him, combed his hair, got out his coat, changed his shoes, and he turned around, and says to me, ‘Betsy is very kind to me,’ and he says, ‘ I have promised her that she shall be paid by my executors, when I am gone, for waiting on me.’ ” We must assume the credibility of the witness, as this was a judgment of nonsuit. The question then comes down to this: Is the clear, distinct statement of the party to be charged any evidence of the fact stated ? The decedent said: “ I have promised her that she shall be paid for waiting on me.” In an action against him, it would not admit of doubt that such a declaration would be competent, and, if believed, sufficient evidence upon which to sustain a recovery. Why is it not competent in an action against his executors? The fact that he is dead, and that his executors can have the benefit neither of his testimony, nor his knowledge, is an argument for examining the testimony closely, but not for rejecting it altogether. The frequency and facility with which unjust claims have been presented and pressed against estates, and the unequal character of the controversy, in which one party is living and the other dead, have led the courts to scrutinize the testimony in support of claims against estates with great care, but the rules of evidence are not changed in such cases. The competency of the declaration of the party to be charged does not depend upon whether he is living or dead. The admissibility of the witness, by whom the declaration is to be shown, may. We think the declaration of Joseph Pratt, testified to by Harriet Walker, was competent evidence, upon the question of the existence of the contract sued on. It was clear, direct and sufficient, if believed, to justify a verdict in favor of the plaintiff: Thompson v. Stevens, 71 Pa. 161. The evidence should, therefore, have gone to the jury under suitable instructions, instead of being wholly withheld from them.

The judgment is reversed, and a venire facias de novo awarded.