95 Pa. Super. 363 | Pa. Super. Ct. | 1928
Argued November 20, 1928. In February, 1926, Mrs. Shelton went to live with the claimant, Mrs. Kuenstener, and, excepting a visit of ten days to Atlantic City, stayed with her until December 22, 1926, when she went to a hospital where she died a few days thereafter. Mrs. Kuenstener now claims compensation for having furnished board, lodging and nursing to the deceased during the above period. The judge disallowed the claim, assigning two reasons for the conclusion.
First: There was not sufficient proof to support the claim. Witnesses were called who testified that Mrs. Shelton lived with the claimant, that she was confined to her bed about two or three days about every ten days or two weeks and that she required care and Mrs. Kuenstener waited on her. She told a former husband from whom she had been divorced, that she would pay Mrs. Kuenstener for her keep. Another witness testified that "she (the decedent) *365 always told me, previous to their leaving there that anything she had would go to Mrs. Kuenstener positively. She said she is the only one that has ever done anything for me." A witness who lived with the Kuenstener's during the period covered by this claim, testified that he advanced money to Mrs. Kuenstener to run the house and that the decedent told him that the money would be repaid to him after they had moved to another place as "we are going to fix the house all up." When she sold her Liberty Bonds she would "repay Mrs. Kuenstener and then Mrs. Kuenstener would repay me." This is all the testimony in regard to declarations of the decedent. The above statements were not consistent. The one to the effect that the claimant was the only one who ever did anything for her and intended to give her all she had, is not an acknowledgment of any indebtedness. The testimony of the former husband of the decedent is more definite. What time this statement was made does not appear and whether she paid or not, we cannot tell. The declaration that she was going to pay for her keep when she was able followed by the drawing of money out of the bank without any proof as to where that money was expended, rather negatives the conclusion that the claim remained unpaid. The testimony of the young man bears out the view hereinafter expressed that Mrs. Shelton was regarded as a member of the family. The court decided that there was not sufficient to overcome the presumption of payment.
The appellant asserts that without any of this testimony as to what decedent had said, the services being proved, no relationship being shown, the right to compensation follows, citing, Gibb's Estate,
Second: There was no definite testimony to fix the amount of the claim. It was shown that the decedent was able to help herself during quite a period of the time covered by the claim, that she did not require nursing except at intervals and that each period was not long. That she assisted in the housework, paid frequent visits to stores, went to Atlantic City, and was not the confirmed invalid that some of the witnesses considered her. There is no testimony showing the exact time when the services were rendered, nor what they were worth. Although there is evidence that board and lodging together with nursing are worth $40 to $50 a week, there is no testimony showing *367 when the three items contained in the claim were all present, or what they were worth separately.
This the court considered too indefinite. In support of this conclusion, the judge cites Hirst's Estate,
The decree is affirmed, the appellant to pay the costs. *368