Hart v. Drumm

Opinion by Morrison, J., Upon careful reading of the testimony and due consideration of the arguments of counsel and the charge of the learned trial judge, we are of the opinion that this case was well tried and a just judgment reached in the lower court. The charge, which will appear in the report of the case, needs no argument from us to demonstrate that it is adequate and impartial. In our opinion, under the testimony and the charge, there is no- merit in the first six assignments of error. But the learned counsel for plaintiff seek to secure a reversal of the judgment upon an additional assignment (the seventh) which seems to have been an afterthought because it is pasted into the paper-book evidently after the book was printed. This assignment alleges error in a portion of the charge as follows: “The court erred in refusing to submit to the jury the claim of the plaintiff for nursing as follows: “The defendant does not contest two items of plain [463] tiff’s claim, viz,: For holding the funeral and supplies for the funeral amounting to $31.00 which, with interest at the time of the trial, amounted to $35.65. Under the views we have expressed the plaintiff is not entitled to recover more than that amount.” Upon this assignment it is contended that the learned trial judge erred in not referring to the jury plaintiff’s claim for nursing Samuel Drumm during his last illness. But it is not at all clear to us that this language of the judge indicates that he had in mind the nursing claim at all. Counsel for plaintiff should not claim surprise because the trial judge did not refer the nursing claim to the jury, in the absence of a request on their part so to do, because it is asserted, and seems to be conceded, that at the second trial of this case the trial judge held that plaintiff could not recover for the nursing because there was no evidence of the value of the same. Whether this ruling was right or wrong the plaintiff should have proved the value of the nursing at the third trial, or at least have requested the trial judge to refer such evidence as had been offered describing the character of the nursing services, to the jury. It is stated, and seems to be conceded, that the third trial was upon the record of the evidence taken at the second and therefore the third trial was on precisely the same evidence as the second. If we were to consider the seventh assignment sufficient to raise the nursing question it would not be fair to the trial judge to sustain that assignment, because it is apparent from the record that the language quoted in that assignment had reference to plaintiff’s claim for boarding and lodging Samuel Drumm, and to the funeral expenses, and to nothing else. We are sustained in this view by the fact that plaintiff’s counsel presented to the trial judge a series of written points, for instructions to the jury, and not one of these points called the judge’s attention to the nursing claim. It is true the plaintiff did offer some testimony tending to show that he nursed Samuel Drumm during his last illness, [464] but the evidence clearly shows that the old gentleman was only ill about three weeks and that he was up and about the house on the day before he died. In any view of this matter the nursing claim would be small in amount. It is very clear from the charge that the learned trial judge did not understand that plaintiff’s counsel were insisting on the right to recover for nursing Samuel Drumm. This appears in the opening sentence of the charge as follows: “Gentlemen of the Jury: The plaintiff seeks in this action to recover for boarding, and for the expense and inconvenience of holding the funeral of said Samuel Drumm.” Nothing can more clearly than this show how the learned trial judge understood the claims that were being pressed by plaintiff’s learned counsel. The entire charge does not contain a reference to the claim for nursing Samuel Drumm and if plaintiff’s able counsel meant to press that claim, we think when they heard the charge, they would not have rested without presenting a request to the judge to refer the nursing claim to the jury. While it may be true, as now argued by plaintiff’s counsel, that having some evidence before the jury that plaintiff nursed Mr. Drumm during his last illness, although there was no proof of the value of the services, the plaintiff was entitled to recover what the jury considered the nursing reasonably worth, or at least a nominal sum, yet we" decline to sustain the seventh assignment for the reasons above stated. In support of their right to go to the jury without proving the value of the nursing services, counsel for plaintiff cite the following, among other, cases: Jones’ Appeal, 62 Pa. 324; Bash v. Bash, 9 Pa. 260; Hartman v. Inclined Plane Co., 159 Pa. 442. This case was tried three times in the court below, and upon the questions that were really before the trial, judge and ruled upon by him, we think it was well tried the third time, and under the undisputed testimony as to the family relations which had existed for [465] a long term of years between the plaintiff and Samuel Drumm and the failure of the plaintiff to overcome the presumption of periodical payments for the boarding, by proving that it was not paid for, we fully concur with the trial judge in his ruling that the plaintiff could not recover for the boarding of Samuel Drumm. As to the nursing claim we are clearly of the opinion that the plaintiff is not entitled to a reversal of the judgment on the seventh assignment for the reasons already stated. Giving due weight to all of the assignments of error we fail to find in the record sufficient reasons for reversing the judgment and sending this case back for a fourth trial. The assignments of error are all overruled and the judgment is affirmed, and the appeal is dismissed at the cost of appellant.