Gerz v. Weber

Opinion by

Mb. Justice Stebbett,

This suit was brought by J: W. Gerz against the executors of his mother-in-law, Theresa Demarra, to recover for boarding the decedent, and for services rendered to her while she was an inmate of his family.

It appears from the testimony that in 1887, shortly after the death of her husband, Mrs. Demarra ceased housekeeping, rented her house in Lancaster and went to live with her six children, Joseph Demarra, Jeanette Gerz, Charlotte Lagneau, Josephine Weber, Charles Demarra, and Rosa Gerz, wife of plaintiff, all of whom were married and had homes of their own respectively. She first went to live with her daughter Charlotte Lagneau, and after remaining there until December, 1887, she lived with her daughter Jeanette Gerz in Reading. In March, 1888, she returned to Lancaster, and, during the next eight or nine months, divided her time among her daughters Mrs. Weber, Mrs. Lagneau, Mrs. Gerz, wife of plaintiff, and her son Joseph, all of whom resided there. In October, 1889, while making her home temporarily with plaintiff and his wife, she became partially disabled by paralysis, and required some personal attention which was given by her daughter Mrs. Gerz and other members of the family. In December of that year she sent for her daughters Charlotte and Josephine, and, expressing a wish to be with one of them, was taken to the home of the latter and remained there until her death in January, 1890.

It was alleged by defendants that no demand for boarding or services of any kind was ever made or contemplated by any' of her children or sons-in-law, except the plaintiff J. W. Gerz; that when she was about leaving his house, he demanded pajrment for six weeks’ boarding and services during the period she was disabled by paralysis, and that the amount thus demanded was promptly paid to him by Mrs. Lagneau in the presence of her sister Mrs. Weber. The defendants offered to prove by the former that she was present when her mother was taken away from plaintiff’s house in December, 1889, and that he objected to her removal “ until his bill was paid, for services rendered and for boarding furnished; that it was so paid and he said it was all right.” They also offered to prove substantially the same facts by Mrs. Weber. Both witnesses were objected to by the plaintiff and excluded on the ground that they are respectively legatees under their mother’s will and therefore incompetent to testify to what occurred in her lifetime. The first four specifications of error relate to the rejection of said offers and may be considered together.

The proposed evidence was not only relevant, but, if it had been received, and accredited by the jury, it would have been practically conclusive against the claim in suit. The only question is, were the witnesses incompetent because they are respectively legatees under their mother’s will, or for any other reason ?

The answer to that must be found in the provisions of the act of May 23, 1887, P. L. 158, the fourth section of which declares : “ In any civil proceeding.... no liability for costs, nor the right to compensation possessed by. any executor, administrator or any other trustee, nor any interest merely in the question on trial, nor any other interest, or policy of law, except as is provided in section five of this act, shall make any person incompetent as a witness.” The only exception in section five that can have any bearing on the question is clause “ (e),” viz.: “ Nor, where any party to a thing or contract in action is dead or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or controversy, or any other person, whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party,” etc.

It is quite clear that the interest of neither of the witnesses in question was adverse to the right of their now deceased mother, Theresa Demarra. On the contrary, they were called to prove that the claim in suit against her executors has no just foundation; that in December, 1889, the party now pressing said claim presented a demand, in full of all he then had or claimed to have against Mrs. Demarra, and that the same was then and there fully paid by one of said witnesses. If that be true, it raises a very strong presumption that plaintiff had no further claim against the estate of his mother-in-law, and when considered in connection with other undisputed facts, that presumption ought to be conclusive, unless clearly and positively rebutted. The matters which the witnesses were called to prove were certain conversations, etc., by them with the plaintiff in the lifetime of their mother and in her presence. Their interest was therefore not adverse to the right of their since deceased mother, and there is nothing in •any of the provisions of the act that renders them or either of them incompetent to testify to the matters recited in the specifications of error. The act is not susceptible of any other reasonable construction. We are therefore of opinion that the court erred in holding that the witnesses were incompetent.

We are also of opinion that the charge of the learned trial judge was unduly favorable to the plaintiff and calculated to mislead the jury as to the proper force and effect of the evidence.

The undisputed facts of the case appear to bring it within the principle of McHenry’s Appeal, 1 Adv. R. 689, in which it was held that a son-in-law cannot recover for nursing, etc., of his mother-in-law where it appears that the decedent, an aged woman, had for years divided her time between her son and daughter, wife of the claimant, living with each of them, at stated intervals, as a member of their respective families, without paying or agreeing to pay for such care and attention as her age and the state of her health required. In such cases the presumption is strongly against the existence of any such relation as will justify the inference of any implied contract: Houck v. Houck, 99 Pa. 552; Patton v. Conn, 114 Pa. 186. Such claims are generally an afterthought, inspired by unworthy motives.

Judgment reversed and a venire facias de novo awarded.