Zimmerman v. Zimmerman, 129 Pa. 229

Zimmerman v. Zimmerman

129 Pa. 229 | Pa. | 1889

Opinion,

Mb. Chief Justice Paxson :

This belongs to a class of cases which unfortunately are becoming too frequent. It was an action brought below by the plaintiff against the executor of his father’s estate, to recover compensation for the care and nursing of his aged father for the last two years of his life.

It appears that the plaintiff and his father lived upon the same farm, though occupying separate houses a few feet apart. The farm belonged to the father, the son worked it as tenant. For the last two years or so of his life, the old man became feeble and required more or less attention; sometimes would fall down and his son would have to be called in to help him; he had little control of bis bowels or urine, and needed to be *236helped when he wanted to move about or change his position. The plaintiff was occasionally compelled to remain at his father’s house all night, in order to take care of him. There is no doubt he performed many duties to his father, some of which were disagreeable. This, however, was a duty which he owed to his father, and was but a return for like duties rendered him in his infancy by his parents. The law regards such services as but the performance of a filial duty, which every man owes his parents, and implies no contract for compensation therefor. A recovery may, of course, be had upon an express contract, and this is what was attempted in this case. The learned judge below was of opinion that no express contract had been proved, and gave the jury a binding instruction to find for the defendant. This is the matter of which the plaintiff complains.

The testimony did not prove a contract in the clear and unequivocal manner required between parent and child. It was vague and uncertain, and consisted of loose declarations of the testator. As a specimen, and it is perhaps the strongest one I can select, I will refer to the testimony of Frank Zimmerman, a son of the plaintiff: “ Q. Now what was said when your father was present? A. Grandfather asked him (plaintiff) for water; and he said, ‘Come and get me water and you shall be paid for what you do, if it takes all I have; shall be well paid if it takes all I have.’ ” The witness was seventeen years old at the time of the trial. The conversation occurred in 1883. There were several other witnesses examined, and the scope of their testimony was that the testator had declared that if the plaintiff would take care of him he should be well paid.

All this is very unsatisfactory. It would be so, to prove a contract between strangers, and it does not measure up to the sta.idard required between parent and child. Such loose declarations can always be proved in a contest between a man and his father’s estate. In Leidig v. Coover, 47 Pa. 534, it was held that the declarations of a testator that his daughter should be paid for what she had worked over age, are not sufficient evidence of a contract as would enable her to recover; nor was it material that during a part of that time she had resided away from the homestead upon another farm belonging *237to him. In that case it was said by Mr. Justice Agnew : “ The declarations of a parent may admit the filial devotion and real worth of his child, and the profit he may derive from her services. They may reach farther and disclose his own sense of obligation and his settled purpose to compensate. But all this is insufficient to raise a promise.” This is in the direct line of our cases. See Candor’s App., 5 W. & S. 513; Hertzog v. Hertzog, 29 Pa. 465; Mosteller’s App., 30 Pa. 473; Hack. v. Stewart, 8 Pa. 213; Lynn v. Lynn, 29 Pa. 369; Ulrich v. Arnold, 120 Pa. 170. In Candor’s Appeal, supra, it was said by Justice Rogers: “In Walker’s Estate we took occasion to express our reluctance with which we listen to claims for wages by a son against the estate of a deceased parent, and subsequent experience has not changed or modified the opinion then entertained. It is pregnant with danger, as we verily believe, as well to the rights of creditors as to the other heirs, and cannot, of course, be entitled to countenance ■from the court, unless accompanied with clear proof of an agreement not depending upon idle and loose declarations, but on unequivocal acts of the intestate, as, for example, a settlement of an account, or money paid by the father to the son as wages, distinctly thereby manifesting that the relation which subsisted was not the ordinary one of parent and child, but master and servant.” The cases cited by the plaintiff do not conflict with this view. Longeneeker v. Penna. R. Co., 105 Pa. 328 and Ott v. Oyer, 106 Pa. 6, have no bearing upon the case; while in Neel v. Neel, 59 Pa. 347, and Titman v. Titman, 64 Pa. 483, a contract much more distinct in terms had been proved. The amount of compensation was shown in each case.

There was nothing of the kind in the case in hand. How much was to be paid, when and for what services? Nothing of this kind appears. And it is one of the remarkable facts, incident to this class of cases, that the claim for compensation is seldom or never presented to the decedent during his life, but is always left to vex his legal representatives and heirs after his death. It is not too much to say that this testator, who was the owner of a small estate, would probably have been astonished had his son presented a claim before his death of $1,200 for his services for the two years preceding. Where a *238contract of this nature is expressly proved, both as to the nature of the services and the amount to be paid, or can be shown by circumstances which are unequivocal in their nature, such as the settlement of accounts, it is all very well. A man has a right to do what he will with his own. But when a son seeks to recover compensation for such services as his filial duty and common humanity require him to render his aged parent, he must come here with some better proof than loose declarations of gratitude and of an intention to compensate, made by an old man in the extremity of his last sickness.

Judgment affirmed.