Ulrich v. Arnold

Opinion, Mr. Justice Green : Having read with close attention the whole of the testimony in this case, we are constrained to say, that in our opinion there was no evidence of an express contract for the services of the plaintiff’s wife, and hence there could be no recovery for that part of the plaintiff’s claim. That Arnold had no better claim than his wife, for the value of her services, was ruled distinctly in Patton v. Conn, 114 Pa. 183, and in Houck v. Houck, 99 Pa. 552. In the former of these eases we said: “Although after marriage her services belong to her husband, yet, if the wife under the circumstances, owing to the absence of an express ■contract, might not recover, the husband can have no higher right.” In the present case, therefore, the claim must be regarded precisely as if the action had been brought in the name and right of the wife. Arnold’s wife was the daughter of the deceased Samuel [179] Ulrich.. In his will he made no provision for the payment of his daughter’s services in nursing him, and during his life while living in the plaintiff’s family he insisted upon paying, and made a special contract for the payment of, his boarding at ten dollars a month. He was scrupulously careful to make these monthly payments for a number of years, and down until a very short time before his death. For the small balance due for board, $22.23, the plaintiff is clearly entitled to recover, and as to that there is no dispute. It is thus apparent that the deceased was quite alive to the necessity of an express contract, with well defined terms, with reference to his boarding. Having this sense of his responsibility it might well be expected that if he really intended to make payment for the filial services of his daughter in nursing him, he would at least take some pains to define with certainty the limits of his obligation in that regard. And it would also be expected that if the son-in-law or the daughter intended to claim compensation in money for the filial services of the daughter in nursing her father during his sickness and his suffering, they would have made such demand, or at least expressed their intention to do so, or their desire for such compensation during the lifetime of the father. In point of fact there is not a shred of such testimony in this case. Not a witness has testified to the least expression of even a desire for compensation by the plaintiff ox his wife at any time during the life of the deceased. The services in question were rendered during several years before Samuel Ulrich’s death, and at times they must have been somewhat onerous and personally offensive. They were, however, merely such services as any daughter would naturally render, and indeed ought to render, to a sick parent residing under her own roof. So far as the plaintiff and his wife are concerned, no thought of claiming compensation for these services seems ever to have been expressed or entertained until after her father’s death. The case is, in truth, singularly barren of the usual loose expressions which are always relied upon in cases of this kind in support of the claim. There are very few of them, and they do not in the least degree indicate the terms of an express contract to pay for the services in question. The whole of the testimony appears in the following extracts: Alice Zwier, a [180] daughter of the plaintiff, testified that the deceased said in her presence, ‘“I am a great trouble’ — he said he knew he made lots of trouble already, but after he was dead my father and mother should be paid good for it. ” And at another time— “ He said his time was short; that he was a big trouble already, but after his death my father and mother should be paid good for the trouble they had. ” This was said not to the plaintiff or his wife, but to the witness, and there is no proof that either the plaintiff or his wife was present. It of course is fatally uncertain as to what the compensation was to be, or how or in what manner it was to be paid. As the payment was only to be after the testator’s death the only inference that can be drawn is that he intended to make some testamentary provision for the payment. This was not done, and was no doubt disappointing, but as proof of an express contract to pay, the declaration has not the slightest significance, and is absolutely worthless. John A. Arnold, a son of the plaintiff, testified in reply to a question as to what his grandfather had said about paying his father for services in nursing him as follows: “He said he would like if my father would get paid for his big trouble.” Being asked to repeat the exact words he said: “ He asked me, ‘ John are you here ? ’ I said yes. ‘ Are the boys here ? ’ Says I, No. Father wakened up and I asked him if I should write to them again. He said, no, they knew it and that was enough, and he would like to see that my father got paid for his trouble.....He said until he was paid there is not much left any more.” Here also is an entire absence of any agreement to pay anything, merely the expression of a desire that the plaintiff might be paid. But whether for his own services or his wife’s, whether during the life of the testator or after his death, whether by a testamentary provision or by the consent of the other children, and what amount — all are left in hopeless uncertainty. As to any specific agreement to pay any defined sum, of course these declarations are proof of nothing. Joseph Arnold, the plaintiff’s brother, testified that in a conversation at one time with the testator he said, “ Yes, but the great trouble I must make to Mrs. Arnold. And I said, well you can’t help that; and I guess you will get good nursing, and he [181] said, yes, it could not be better. He said it could not be better, and he said, ‘ it will all come right once.’ What he meant by that I didn’t ask him.” It is unnecessary to say more than that this declaration proves absolutely nothing in support of the theory of a contract. The only remaining witness was A. Stanley Ulrich, who testified that in a conversation with him the old man said, “ Then he complained that the other children did not come to see him, but that quite likely after his death they would come, that he hadn’t more than a few thousand dollars, and that after paying the funeral expenses he would not have enough left to pay Henry for the great trouble he had been to him.” This also was said, not to the plaintiff or his wife, but to the witness; no contract to pay anything during testator’s life was indicated, no certain or fixed sum was expressed, or any means of ascertaining what the compensation was to be. The services had all been rendered, as it was but a few days before the old man’s death, and instead of being proof of any agreement to pay any sum whatever for the services, this declaration proves nothing more than the thought or belief that if a claim was made after his death and was allowed, it might require the most of his remaining estate to pay it. The foregoing is absolutely all of the testimony upon which the claim of the plaintiff is based. Instead of proving any defined, express contract, it disproves it. There is not a single element of an absolute agreement in it. It would be a weariness to review the cases in which we have condemned this sort of evidence, and it is quite unnecessary. The requirements of the law, as long established in this commonwealth, in reference to claims of this character, are certainly not unreasonable, and they ought to be rigidly enforced. Mere loose and rambling declarations of an aged and infirm parent expressing gratitude for the services of a child during a period of illness and of suffering, services which all right-minded children willingly render to their stricken parents,without thought of mercenary reward or expressing a desire that payment should be made for them, or the hope that compensation shall be rendered after death, are not a contract nor the evidence of one, between persons thus related. It is at best but an ill-judged and misplaced sympathy which prompts juries to dignify such declarations and [182] expressions with the qualities of a positive and express contract. It is in derogation of our common humanity and of the best instincts of our race and ought never to be encouraged by the tribunals which administer justice. If, in any given case a child expects to be paid for filial services to an infirm parent, let him or her conform to the law, and enter into a specific and definite contract with the parent, during the parent’s life, fixing the character of the service and determining positively the fact that compensation is to be paid for it. When this is done, the courts will see that the contract is enforced; when it is not done, claims for such services when presented as legal obligations do not deserve the slightest consideration. As it is error to submit to a jury a question of which there is no evidence, the assignments of error are all sustained. Judgment reversed, and a new venire awarded.