
    Leen, Admr., v. Leen.
    
      Action against administrator — ■Claim for services rendered deceased — ■Effect of plaintiff’s disqualification as a witness — Plaintiff not regarded as relative or member of household, when.
    
    1. In an action against the administrator of a deceased person for services rendered the deceased during his lifetime, the plaintiff being by statute disqualified as a witness, there can be no inference that nothing was said between plaintiff and deceased about the inadequacy of the compensation being paid.
    2. A person not related to another by blood, and not in any sense a member of his family or household, is not barred from recovering for services rendered, merely because no express contract is shown.
    (Decided June 12, 1916.)
    Error : Court of Appeals for Hamilton county.
    
      Mr. Anthony B. Dunlap, for plaintiif in error.
    
      Mr. David Davis and Messrs. Conway, Mueller & Conway, for defendant in error.
   Jones, E. H., P. J.

The defendant in error, Jane Leen, brought her action in the common pleas court against Patrick Leen, as administrator of the estate of Maurice H. Leen, deceased, seeking to recover compensation at the rate of $24 per week for services rendered to the decedent Maurice H. Leen. In her itemized statement she charged $20 per week for nursing and care, and $4 per week for looking after the business interests of the decedent, viz., in paying taxes, insuring the property, looking after repairs, paying bills, banking money, etc.

An answer was filed in the court below denying the allegations of the petition, and thereupon the cause came on for trial before the court and jury, which resulted in a verdict and judgment for the plaintiff below in the sum of $1613.02.

We are asked to reverse this judgment on the grounds, first, that it is not supported by sufficient evidence and, second, because the court erred in its charge to the jury.

After carefully considering these assignments of error the majority of the court are of the opinion that neither of them is sustained by the record. It appears that the charge of the court was a full and fair exposition of the law as touching the issues made by the pleadings.

The complaint of the plaintiff in error that the verdict of the jury is not sustained by sufficient evidence is based upon the claim that the evidence shows that Mrs. Leen for several years prior to the death of the intestate, and up to a time within a year or so of his death, had been rendering him services in cooking, cleaning, and to a limited extent in nursing him, at the rate of $3 per week. The homes of the parties involved were near each other, being separated only by one narrow lot. During the period of time just referred to Mrs. Leen for the most part remained at home and looked after her own household. She discontinued this work for a period of several weeks, whereupon Mr. Leen came over to her house and told her that he could not get along without her assistance, and asked her if she would not again help him. To this she assented, but, from this time on, the evidence shows her work was much more arduous and exact ing, requiring a great deal more of her time. Mr. Leen became very much afflicted, and suffered the amputation of one of his legs, by reason of which she was compelled to remain with him in his house almost continuously, day and night. There is also evidence tending to show that she performed the services in connection with his business affairs upon which she in her petition places the value of $4 per week. She received during this time the sum of $3 per week. There is no evidence, however, to show that this was paid to her in full for her services. The malady from which Mr. Leen was suffering was progressive; his condition was constantly becoming worse; and it is only fair to presume, in explanation of the lack of definite understanding as to compensation, that the work was becoming more and more irksome, and thus more valuable, and also that Mr. Leen was in no condition physically to talk with her over business matters, especially matters pertaining to his own personal care and comfort.

The action being one against the administrator of a deceased person, the plaintiff, Mrs. Leen, was by statute disqualified as a witness, so there can be no inference that nothing was said between her and her patient, Mr. Leen, during his long illness, about the inadequacy of the compensation he was paying her. She may have protested and remonstrated with him every time he handed her her pittance of $3 a week, and, unless same occurred in the presence of a third party competent to testify, she is helpless to prove such conversations. . It may even be that it was distinctly agreed between the parties that the sum paid to her was only on account, and represented only a part of what she was actually to receive. It seems, therefore, that any conclusion reached in this case based upon the theory that she never objected to the $3 per week or complained as to the inadequacy thereof, or any conclusion that the mere fact that weekly payments were made shows that such payments were in full, or any conclusion that by receiving these weekly payments regularly she is now estopped, can only be based upon her compulsory silence and is unsupported by any word or circumstance appearing in the record.

In view of the dissenting opinion which follows, we must add that in our opinion the rule laid down in the case of Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, relating to claims for services to a deceased person by a relative or member of his household, cannot apply here. Prior to her employment with Mr. Leen the plaintiff had never lived in the house with him, nor did she so live after her employment. There was no blood relationship between the parties, and the only relationship that existed at this time was that Mrs. Leen was the widow of a deceased nephew of Maurice H. Leen, Neither the case above referred to nor any of the other numerous cases in which the same principle is discussed has aught to do with any condition or family relationship such as has been shown to have existed between these parties. We know of no case in Ohio, or for that matter in any other state, where it has been held that a person not related to a person by blood, and not in any sense a member of his family or household, is barred from recovering for services rendered unless an express contract is shown. That the rule laid down in Hinkle v. Sage and later cases is a wholesome one will not be denied. Neither can it be denied that this rule has no application whatever to the facts in this case.

In view of the evidence in the record as to the labors and responsibilities which rested upon Mrs. Leen, there certainly can be. no presumption that the $3 were paid to her in full for all her services, and there was a lack of direct evidence to show that such was the case.

The jury was therefore justified under the evidence in awarding her compensation in addition to the $3 per week, and the amount of same was a matter entirely within the province of the jury and for its determination, in the absence of any indication of passion or prejudice, — they having been made fully acquainted with the nature of the services which she rendered.

The judgment will therefore be affirmed.

Judgment affirmed.

Jones, Oliver B., J., concurs.

Gorman, J.,

dissenting. The evidence in this case discloses that during the entire time that the plaintiff rendered the services to the defendant’s intestate she was paid each week the sum of $3 and received the same as her compensation for the services rendered. She made no complaint or objection to the amount paid her. She never notified or apprised the decedent that she was dissatisfied or expected to be paid more for her services. For a long time prior to her last employment she was also paid the sum of $3 per week. Under these circumstances it appears to me that she is now estopped from claiming that her services are worth more than $3 per week. “He who will not speak when he should, should not be heard to speak when he would.” The decedent’s mouth is closed in death, and it appears to me that the acceptance of the amount paid Mrs. Leen each week estops her, after the death of Mr. Leen, from claiming that she was entitled to more.

The cupidity and avarice of relatives of deceased persons so frequently tempt them to make claims against the estates of deceased persons, especially when they are dissatisfied with some provision-made for them by the deceased, that the courts should frown upon all efforts to raid the estates of deceased persons.

I am fully convinced that prior to the death of Mr. Leen the plaintiff in this case had no intention to make a charge of more than $3 per week for her services, and that this claim upon her part was an afterthought. I am of the opinion that the verdict was manifestly against the weight of the evidence, and that the defendant proved conclusively that the services i endered by the plaintiff to the decedent were fully paid for during the lifetime of the decedent.

For these reasons I am constrained to say that the judgment should be reversed.  