Nicolaysen v. Pacific Home

POX, J. pro tem.

This is an appeal by defendant from a judgment in the sum of $4,950 in favor of plaintiff as administratrix of the estate of Rosa J. Ross, deceased.

Appellant operates a home which includes hospital facilities for elderly people. Mrs. Ross, who was then seventy-five years of age, entered into a written contract with appellant corporation, on or about April 14, 1941, by which she became a so-called life member in its home. Generally, this contract provided for her maintenance and care (with certain exceptions that are not here important) for the remainder of her life, and finally for her burial if she did not leave a sufficient estate to defray such expense. The consideration paid appellant by Mrs. Ross under this contract was $7,662.50. The contract contained the following provision with respect to the right of a life member to terminate his membership in the home: “ . . .

any member of the Home shall have the right at any time to terminate their membership in the Home by serving on the management One Hundred Twenty days (120) prior notice of his or her desire so to do,

and thereupon such member shall be charged an amount decided upon by the Board of Directors, not to exceed One Hundred Eighty Seven Dollars Fifty Cents ($187.50) per month from date of said member’s admission to the Home until the time of said departure from said Home, and the amount so ascertained shall be deducted from said admission fee and the balance of said admission fee remaining, whether in money, property and securities or its equivalent, shall be [re] turned to such member and thereupon the Home shall be discharged

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from all further obligations to such member.” (Italics added.)

Upon the execution of the contract Mrs. Ross took up her residence in the home in the quarters specified in the contract. On February 17, 1942, she had a stroke and was removed to the hospital quarters of the home and five days, later she had another stroke. On February 28, 1942, pursuant to the provision of the italicized portion of the above quoted paragraph of the contract, Mrs. Ross executed and caused to be delivered to appellant immediately a document which reads as follows: “To Pacific Home The undersigned hereby elects to take advantage of the option given to her under the terms of the agreement dated April 14th, 1941, to terminate her membership in said home one hundred and twenty (120) days from this date.