99 Pa. Super. 211 | Pa. Super. Ct. | 1930
Argued April 23, 1930. In the light of the evidence and the admissions in the pleadings we think this case was rightly decided in the court below. The agreement of the decedent to pay plaintiff $20 a month was expressly limited to her room and board. It was made when decedent was in good health and able to take care of herself. No personal attendance or nursing on the part of the plaintiff was contemplated and the compensation agreed upon between them was restricted to payment for bed and board. Several months later decedent became seriously ill from a severe bronchial affection; she also became subject to convulsions or spasms and lost the control of her bowels. She was bedridden much of the time thereafter and required almost constant care, nursing and personal attention of the most disagreeable nature. This the plaintiff, in whose house she was living, was compelled to furnish her. She had no relatives in the immediate vicinity except the administratrix defendant and the latter, on account of her small house and her family, was unable to care for her. The plaintiff, who lived alone without help, nursed and cared for the decedent, until her own health broke down and decedent had to be removed to the hospital, where she died *213 about two weeks later. They were not related to each other in any way, by blood or marriage.
We agree with the court below that the services thus required were not contemplated by either party to the agreement when it was made; they were not of the same kind as those provided for in the agreement; it was not a difference in degree but a different kind of service required; hence the authorities relied on by appellant, such as Rosencrance v. Johnson,
It was proved beyond dispute that the decedent had not paid plaintiff anything beyond the $20 a month covered by the agreement, and the defendant herself proved that payments on that account were not made at regular intervals or stated periods. The last payment made covered seven months time. Decedent had her money in bank in savings accounts and it was more *214 difficult and inconvenient to withdraw it than if it had been deposited in a checking account.
The testimony shows the decedent's recognition of a contract to pay the plaintiff what her services were worth and her assumption of the liability arising out of it; and it is immaterial whether the contract was made before or while the services were being performed: Conkle v. Byers' Exr.,
Under the evidence in the case on both sides the presumption of payment did not arise.
Defendant's only assignment of error is to the refusal of the court to enter judgment non obstante veredicto in her favor. It is overruled and the judgment is affirmed.
