Supreme Court

Southland Times, Issue 12010, 14 December 1907, Page 1

Supreme Court

FRIDAY, 13th DECEMBER. (Before His Honour Mr Justice Williams.) His Honour sat at 10.30 a.m. A CLAIM FOR BOARD AND NURSING FEES. Janet Lindsay ICay, of Balfour, claimed from the Public Trustee, as executor of the will of George McGregor, late of Balfour, the sum of £1063 4s 3d for board and lodging apd nursing—Mr A. B. Haggitt appeared for plaintiff, and Mr T. M. Macdonald for the Public Trustee.

The case was tried by the following jury :—W. Timpany (foreman), G. Batchelor, A. Thompson, W. J. Robinson, J. Darragh, J. Fraser, J. A. Nisbet, F. Cole, A. Fraser, P. Dawson, G. Lawrence, and A, Thompson. Mr Haggitt explained that the amount of the claim was the balance due for board and lodging, and also for nursing the deceased during his lifetime and during a very long and protracted illness which he had while residlng_with plaintiff. The facts were that deceased (George McGregor) and his brother, Charles McGregor, both bachelors, resided near the residence of the plaintiff at Balfour, and lived there by themselves. The brother Charles died some years ago, and then George, who was in a very bad state of health, was talcen by the doctor who was attending him to the house of Mrs Kay to be taken caro of. That occurred on 12th March, 1902. From that date until the day of his death on 13tn November, lyuo a period of four years and eight months, deceased continued to reside in plaintiff's house. At first no arrangements wore made for payment, but after the deceased had been in plaintiff’s house for a year, it was arranged that McGregor should pay 30s a week for his board and lodging. Pursuant to that arrangement claimant had received £277 5u 9d. being for board and lodging for three years and eight months at 30s a week. As time went on Mrs Kay found that the duties of nursing deceased were becoming very arduous, and she had to ask him for more payment. His condition was so bad that he was quite helpless, and could not attend to himself in any particular whatever. The eviiD'." would show that Mrs Kay’s duties v.mi- very unpleasant indeed. When Mrs Kav made this suggestion to him, he asked Mrs Kay to continue to keep him there and not send him to a private hospital. Ho then said that if Mrs Kay would do the nursing between them ho would see that she got the same remuneration ns he would have had to pay for similar attention in a private hospital. Unfortunately, that statement, made to claimant alone, would not bo corroborated in evidence. The fact remained that the nursing services had been performed, and Mrs Kay was entitled to fair and reasonable payment for what Hie had done. He thought that when the jury heard the evidence, they would not consider the claim of £1 a week an extravagant one. The defendant's case was a general denial of liability, and It would be staled that the late George McGregor left a legacy of £3OO to Mrs Kay, which was to be in full satisfaction of all claims Mrs Kay might have against him for services rendered. This was, however, probably not intended Mrs Kay had been in the habit of doing little services for the two brothers long before George came to live at her house, and counsel suggested that this £209 was meant as recompense for her kindness. As evidence of that he would show that tho will was dated ISth March, 1302, and he came to reside with M.rs Kay on i2th March. 1302. Ho thought that the Jury must find that some reward was duo to Mrs Kay, Janet Lindsay Kay. plaintiff, detailed the circumstances under which George McGregor came to live at her house. No arrangement was made about payment until deceased had been a year in witness’ house. George McGregor had once suggested geting a man into witness' house to do the nursing, but witness said that she did not wisli to have a man In the house. Besides, It would cost him about £1 a week. After consideration lie replied, " Well, if you do tiic work amongst you, you may a well have the money amongst you." Witness detailed the routine of dutie which had to bo performed every day In caring for deceased. She considered £1 a week a fair and reasonabh charge to make for the services she had rendered. To Mr Macdonald : Before coming to live at witness’ house George McGregor was attended to by his brother. Charles McGregor did no work on the farm. Isabella Moars slated that she had been a, frequent visitor at Mrs Kay’: house. She corroborated claimant's evidence as to tho unpleasant and arduous nature qf tho work of caring for McO rogor. ,ino. o-aig farm labourer, alio had been employed al Mrs Kay's farm, and James Lymbuni, Presbyterian minister at Luiusdeii. gar.; similar evidence Tho hitter uilnes slated that McGregot had always been very carefully tended, and lie. considered that (lie work ol looking after him was more than one woman could do. John McFctridge, Lumsdeii, slated (hat McGregor hud always been perfectly happy and contented at Mrs Kay's He did not think £1 per week an unreasonable charge for boarding and housing him. Duncan McLean and M.argar ;t Me Fetridgo also gave evidence. This closed the case for plaintiff.

Mr T. M. Macdona'd, for the defendaot, explained that *he Public Trust--. did not dispute the Claim, but ho tv a bound, in order to do Justice to tf, beneficiaries in the fatale to allow titcase to come into court, whore thi claimant wotjld bo required to provi her claim to the satisfaction of a jun The claim was first for the sum of £■■• for board and lodging for the first ye.;: that deceased stayed with Mrs K- : Tac whole of the rest of the si;.owing for board and lodging up to l October, 1906 had been paid. For tin s)x weeks following Ist October, immediately preceding his death, thenwould be no dispute as to liability. !> was certainly very peculiar that claimant should have received payment 1m the rest of the period and not for that first year. lie submitted Unit mcharge for nursing was an extraord.nary one. Robert Grant stated that he was George McGregor’s authorised agent and that be paid to Mrs Kay certain moneys which he understood were for board and lodging. Ellen E. Sproullc stated that she kept a private hospital, and that the tegular charge made was £3 3s per week. Under certain circumstances she might charge £1 Is per week. To his Honour : > case such as the evidence showed this one to be might bo by one nurse, but could not be tended for any length of time. This closed the case, and Mr T. M. Macdonald addressed the jury. He pointed out defects in the case and the fact that two important witnesses had not been called. He would suggest that the evidence as to McGregor’s conditio; conveyed an exaggerated idea of the amount of care and attention he required, and the only persons who could have given corroborative cvldem-.- had not been called. The two qm- b-ms Tvere : Wore the nurse's services ineluded in the 30s a week? and, if not, what would be a reasonable charge to make In addition ? Mr Hagglt said that he was satisfied

that the jury must find from' the evidence that Mrs Kay ought to receive the full amount. Mr Macdonald had assured the Jury that the Public Trustee had no interest In the case, and was submitting the case to the court simply in the course of his duty, but as a matter of fact he had been at some pains to discredit claimant’s story. He submitted that the jury would be convinced of the truth of Mra Kay’s testimony from the manner in which It was given, and If her story were believed, the jury must find for her in the matter of the claim. His Honour then presented the case to the Jury. As to board and lodging, fnere were two items In the claim One for the six months preceding McGregor's death was not disputed, but the other for £7B for the first • tr of his stay with Mrs Kay was di The contention on behalf of - blic Trustee was that this tva . I:, was fairly clear that wh XcGrcgor first went to claimant's , " went there as a guest, whici -w. "hip would cease at the t. . ion the agreement for payment ' The ■fact that McGregor we. qaJ those conditions, and that they luo „acquiesced in, seemed to b T almost to preclude any 10... .ii an" implied contract to pay. The claim for nursing was on quite a different, footing. Mrs Kay had said that within the first six months an arrangement wa--. made by which payment was to be made. The circumstances were in a manner a corroboration of this statement, because the deceased had ashed claimant to do certain tilings which in: would not expect to have done for him without payment. He also direclod the attention of the jury to the evidem • bearing on the question of whether the amount claimed was or was not reasonable. The jury retired at 1.27 pin.. and returned at 5,7 p.m. They found for plaintiff for £385 4s 3d. and judgment \tas entered accordingly.