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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'enaney v. The Caledonian Railway Co. [1913] ScotLR 555 (19 March 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0555.html Cite as: [1913] ScotLR 555, [1913] SLR 555 |
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On 25th December 1911 a man was knocked down in a street by a van belonging to a railway company. On 28th December 1911 the law agents of the injured man wrote to the railway company intimating that he held them liable for his injuries. On 5th January 1912 he executed a will in favour of a certain lady whom he appointed his executrix, and the will contained a declaration that the said lady was to be entitled to any sum of money which the Company might pay in name of damages or otherwise. On 6th January 1912 the injured man died.
Held (rev. Lord Hunter, Ordinary) that though no action had been raised in the lifetime of the injured man his executrix had a title to sue the railway company for damages.
Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859, 30 S.L.R. 748, distinguished.
Kathleen M'Enaney, as executrix nominate of the deceased Ernest Leigh, Charing Cross Road, London, and as an individual, pursuer, brought an action against the Caledonian Railway Company, defenders, concluding for £1500 as damages for personal injuries sustained by Mr Leigh.
The following narrative of facts is taken from the opinion of the Lord Ordinary ( Hunter)—“This is an action brought by the executrix-nominate of the late Mr Leigh to recover damages from the defenders in respect of personal injuries sustained by him owing to the fault of the defenders or their servants. On 25th December 1911 Mr Leigh was knocked down in a Glasgow street by a two-horse van belonging to the defenders. On 6th January 1912 he died in consequence of the physical injuries which he then sustained. Prior to his death Mr Leigh had, on 28th December 1911, in a letter written by his agents to the defenders intimated that he held them liable for the injuries he had sustained, and on 5th January 1912 he had
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executed a will in favour of the pursuer which, inter alia, contains the following declaration—‘I also declare that she (the pursuer) is to be entitled to and to get any sum of money which may be paid in name of damages or otherwise by the Caledonian Railway Company in respect of the accident I have sustained.’ For the purposes of this action the defenders admit that they are responsible for the accident, but they maintain that, as no action was raised against them by the deceased in his lifetime, the pursuer has no title to sue the present action.” The letter by the pursuer's agents to the defenders was in these terms:— Messrs The Caledonian Railway Co.,
302 Buchanan Street.
Dear Sirs—We have been consulted on behalf of Mr Ernest Leigh, 122 Charing Cross Road, London, who, on the morning of Christmas Day, was knocked down in West Nile Street by a van belonging to you, the horses of which had run away through, we understand, having been left unattended in the street. We have made full enquiries into the whole circumstances connected with the matter, and are quite satisfied that you are liable. Our client was removed to the Royal Infirmary immediately, where he still is and will be for some considerable time. We understand that both his knees have been fractured, and that he has sustained serious internal injuries. We shall be glad to hear from you at your earliest convenience, and after you have made enquiries, whether or not liability is admitted.—Yours faithfully,
“Angus Campbell & Cochran.”
The pursuer pleaded, inter alia—“(1) The now deceased Ernest Leigh having suffered loss, injury, and damage in his person through the fault of the defenders, or of those for whom they are responsible, the defenders are liable in reparation therefor. (2) The pursuer having good and undoubted right to sue the present action as executor duly nominated to the said Ernest Leigh, decree should be pronounced in terms of the conclusions of the action. (3) The pursuer, as universal legatory and assignee of the said Ernest Leigh, having good and undoubted right to sue the present action, decree should be pronounced in terms of the conclusions of the action.”
The defenders pleaded, inter alia—“(1) Any right to make the present claim having ceased on the death of the said Ernest Leigh, the pursuer has no title to sue, and the action is irrevelant. (2) The averments of the pursuer being irrevelant and insufficient to support the conclusions of the summons, the action should be dismissed.”
On 13th November 1912 the Lord Ordinary ( Hunter) sustained the first plea-in-law for the defenders, dismissed the action and decerned.
Opinion.—… In the case of Bern's Executor v. Montrose Asylum, 20 R. 859, it was held by a majority of a Court of seven Judges that an executor has no title to institute an action of damages for personal injuries to the deceased person whom he represents. It is true that the deceased in that case had not only not raised an action but he had not by any public act indicated his intention of making a claim. Lord M'Laren's opinion does not, however, appear to me to proceed upon this distinction but upon general grounds. He treats the case of executors following out and insisting in an action raised by the injured party as a recognised exception to the rule against the transmissibility of an action for personal injuries where no patrimonial loss has been sustained— Neilson v. Rodger, 16 D. 325, and Darling v. Gray, 19
R. (H. L.) 31.
Mr Mackay, in a learned argument submitted to me, asked me to treat Bern's case as only excluding the action where the injured party had given no public indication of his intention to prosecute the claim. He referred me to the opinion of Lord Shaw in the case of Hendry v. United Collieries, 1909, S.C. (H.L.) 19, at p. 24, and to the opinion of Lord Kinnear in Traill & Son, 6 F. 798. Neither of these learned Judges express disapproval of the decision in Bern's Executor, and in neither case was it necessary for the decision of the case to consider to what extent Bern's case excluded a claim like the present.
In the case of Boyce's Executor, 1903, 5 F. 452, the executor who raised the action stated that, as curator bonis of the injured party he had given instructions to raise an action for damages on account of the injuries, but that the ward had died before the action was raised. The action was dismissed. In giving judgment in that case Lord Moncreiff said, ‘I have read the whole opinions in Bern's case over again, and I think, having regard to the grounds of judgment on the part of the majority of the Court, they involve this—that an action of this kind will not transmit to an executor unless the action has been actually raised during the lifetime of the party injured. On these grounds, I think the Lord Ordinary had no alternative but to give effect to the case of Bern and dismiss the action.’
“The cases of Bern and Boyce are binding upon me, and I therefore sustain the first plea-in-law for the defenders, and dismiss the action.”
The pursuer reclaimed, and argued—The brocard actio personalis moritur cum persona was not part of the law of Scotland— Auld v. Shairp, December 16,1874, 2 R. 191, 12 S.L.R. 177; Neilson v. Rodger, December 24,1853, 16 D. 325; Darling v.Gray & Sons, May 31, 1892, 19 R. (H.L.) 31, 29 S.L.R. 910; Hendry v. United Collieries Limited, 1908 S. C. 1215, Lord Kinnear at p. 1218,45 S.L.R. 944; 1909 S.C. (H.L.) 19, Lord Shaw at p. 124, 46 S.L.R. 780. Nor did the brocard express what was the law of Rome. By Roman law penal actions did not transmit passively but did transmit actively, but the actio injuriarum did not transmit either actively or passively—Just. Inst. iv. 12, 1. The actio injuriarum, however, was not for personal injuries but only for contumelia (slander in the widest sense), injustice, and denial of justice—Just. Inst.
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iv. 4 ( proemium), and thus where an “injuria” was done to a slave jointly owned the damages were assessed not with reference to the respective shares of the co-owners but with respect to their rank—Just. Inst. iv. 4, 4. In England alone of civilised countries had the maxim been accepted as law, but even there it had apparently no authoritative source, and had been much pared away. As to its application in England, reference was made to Broom's Maxims, 8th ed., p. 701-2; Chamberlain v.Williamson, 1814, 2 Maule & Sel. 408; Finlay v. Chirney, 1888, 20 Q.B.D. 494, at 502. The doctrine of the maxim was not accepted in the law of France — Pothier, Des Obligations, sections 673-674 (Eng. tr. by Evans, sections 637–638). The decision in Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859, 30 S.L.R. 748, did not proceed on the recognition of the brocard as sound in the law of Scotland ( Hendry v. United Collieries Limited ( cit. sup.), per Lord M'Laren at 1223), although apparently Lord M'Laren thought the actio injuriarum included an action for personal injuries. Assuming Bern was rightly decided, it did not rule the present case, because there the injury was of the nature of contumelia, here the action was reparatory and not penal — Black North British Railway, 1908 S.C. 444; Palmer Wick and Pulteneytoiw Steam Shipping Company, Limited, June 5, 1894, 21 R. (H.L.) 39, 31 S.L.R. 937. And moreover there was not in Bern as there was here an intimation of claim made by the injured person and an express assignation by will of the claim to the executor. The case of Boyce's Executor M'Dougall, February 18, 1903, 5 F. 452, 40 S.L.R. 361, merely followed that of Bern. Where an action had been actually raised by the injured person prior to his death his executor was entitled to carry it on— Neilson v. Rodger (cit. sup.); Darling v. Gray & Sons (cit. sup.). The ratio appeared to be that when an action was raised or a claim made an election to claim damages was then made and the right to an accounting then vested— Riley v. Ellis, 1910 S.C. 934, Lord President at 942, 47 S.L.R. 788 ( sub nomine General Billposting Company v. Youde). In any case no sound distinction could be made in principle between a claim made by an action actually raised and the present formal intimation of a claim and the assignation of it by will. The latter showed as much as the former that there was no intention of waiving the right to damages. A right of action for personal injuries could be validly assigned inter vivos even before the action was raised— Traill & Sons v. Aktiesselskabet Dalbeattie, Limited, June 7, 1904, 6 F. 798, 41 S.L.R. 614; it was also arrestable— Riley v. Ellis ( cit. sup.), and they submitted it could also be assigned mortis causa. Where an executor had a right to sue an action of damages for personal injuries to the testator that right was preferable to any right of dependants— Darling v. Gray ( cit. sup.). Reference was also made to Milne v. Gauld's Trustees, January 14,1841, 3 D. 345. Argued for the defenders and respondents—As to Roman law, even if an action of damages for personal injuries was not an actio injuriarum it was covered by the general words following “injuria” in Just. Inst. iv. 4, 1. As to the law of England, they referred to Broom's Maxims at pp. 704–5, and Finlay v. Chirney (cit. sup). In any case Lord M'Laren's judgment in Bern (cit. sup.) was founded really on the law of Scotland,and the cases of Bern and of Boyce's Executor (cit. sup.) decided that where no action was raised in the lifetime of the injured person his executor could not raise an action after his death. In Boyce's Executor the curator bonis had actually given instructions in the lifetime of the injured person for an action to be raised, and yet it was held that the executor could not raise an action. It was not necessary for them to dispute the passing of the right of action to the executor when the action had already been raised, but it was to be noted that Neilson v. Rodger (cit. sup.) appeared to proceed on the ground or assumption that there could be two actions arising out of the same injury, which was contrary to the opinion of Lord Watson in Darling v. Gray & Sons—the only other case recognising the transmission to an executor. They submitted that mere election to raise an action was not sufficient, and that nothing short of the action having been raised in the lifetime of the deceased would give the injured person's executor a title to pursue the action. In Traill (cit. sup.) there was not merely an indication of election, but also an actual assignation for onerous causes, both in the lifetime of the injured person, and the soundness of Bern or of Boyce's Executor was not then questioned.
At advising—
After the accident had happened, and while he was ill, Mr Leigh executed a will in which he made the present pursuer his executrix and universal legatory, and in the will he inserted the following declaration—“I also declare that she”—the pursuer—“is to be entitled to and to get any sum of money which may be paid in name of damages or otherwise by the Caledonian Railway Company in respect of the accident I have sustained.” While he was still alive he instructed his solicitors to take proceedings to recover a sum of money for damages from the defenders, and a letter was written on his behalf in general terms asking what the railway company would do. The defenders declined to admit any liability in the meantime, and before anything further was done in that matter Mr Leigh died. This action having been raised, the defenders admit that the accident
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We had a very elaborate argument from the learned counsel for the pursuer, which was chiefly based on a discussion of the brocard actio personalis moritur cum persona, and especially with regard to what actio injuriarum really was in the Roman law, and a distinction was sought to be drawn between this case and Bern's case upon that matter. Bern's case was a case where the husband of a deceased wife sued the proprietors of an asylum for injury and—as the pursuer's counsel put it, indignity—offered to his wife while she was an inmate of the asylum, and the action was dismissed as incompetent. Speaking for myself, I am not inclined to follow the learned counsel for the pursuer in his discussion upon this matter. I doubt whether we can get any great assistance from the Roman law in such a matter, and I very gravely doubt whether the term actio injuriarum as used in Scots law can be taken to be limited by a strict view of what actio injuriarum was in the Roman law.
Upon the merits of the case I have found the matter attended with great difficulty, because no recorded instance of such an action being allowed to go on has been found in the books. That is to say, there is no instance where an executor has raised for the first time an action in respect of personal injuries to a dead man. But so far as I am concerned I am really concluded by what I said in Riley v. Ellis (1910 S.C. 934), and—with great deference to my learned brethren who did not agree with me in that case—I may say that a repeated consideration of Riley v. Ellis has only confirmed me in my opinion. What was actually decided in Riley v. Ellis has not any application here, but the topics discussed have a great deal to do with this matter. In that case I was speaking of claims arising out of delicts and of the question of arrestment, and I said that actions in respect of slander might be added to actions that would not transmit, and, though not so obviously, yet I thought equally safely, a claim of damages for personal injuries. Now why is this? It will not do to say because the claim arises out of delict, because admittedly if action was raised for seduction or slander or damages for personal injury an arrestment in the hands of the defenders to such an action would be good, and the quality of the claim i.e., as arising out of delict and not out of contract, is obviously not affected by the fact that action is raised. I think, if I may say so, that I did two things in Riley. I disposed of the idea that the matter was decided by the judgment in the case of Auld v. Shairp (2 R. 940), but I equally clearly said that the opinion of some of the Judges who took part in Auld v. Shairp was adverse to the judgment in Bern's case.
The extreme case is undoubtedly the opinion of Lord Neaves in Auld v. Shairp. He holds that the moment that a delict has taken place a civil right is at once vested in the person who is the sufferer by the delict, and that that is part of his patrimony and transmits just as any other part of his property transmits. I am of opinion that that is unsound law, and I think it is quite clear that that law, in its extreme form, cannot live with the law of Bern's Exr. But then, while I do not go that length, I did in Riley go the length of saying that in the case of a delict there is a transmissible right when a claim is made or an action is raised. That there is a transmissible right after the action is raised is admitted by every one, because there is no question that, if an action has been raised by a man and he dies before the termination of that action, his executors can be sisted as parties. I personally think, for the reasons that I gave in Riley, that the same thing happens when a claim is made. The injured man has then elected to say that he means to enforce a claim for damages. Now that being my view, it follows that Bern's Exr. does not cover this case. In Bern's Exr. there had been no action by the lady which treated her injuries as giving rise to a claim of damages. She had died without saying anything upon the subject; and therefore the decision in that case is quite consistent with my opinion in Riley. I said in Riley that I thought the case of Bern's Exr. was rightly decided, and all the considerations of good sense, I think, point very strongly the same way. Whenever you come to a liability which depends upon reparation that is to be made for personal suffering—whether the suffering is of the purely bodily class, as in the case of injury by accident, or of the mental class, which is represented by slander, or of that still more delicate and still more mixed class which may be represented by seduction—it is, I think, very evident that, if the persons themselves affected do not choose to make a claim it is very right that nobody else should make it. But if the person has elected to make a claim, then I see no reason why that claim should not transmit like any other estate of the injured person. Accordingly I am of opinion that the Lord Ordinary was wrong in dismissing the action.
I think there is a very delicate inquiry in front of us here, especially considering the possible application of what was laid down by the House of Lords in the case of Darling v. Gray & Sons ( 19 R. (H.L.) 31), and accordingly I think it would be inexpedient to go into that matter ab ante. I think the proper course will be to recall the Lord Ordinary's interlocutor, and remit to his Lordship with instructions to allow a proof.
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The fundamental proposition which Lord Wood lays down, and which I hold to be not only sound in law but obvious, is that a claim for damages or solatium for injury to the person or feelings vests ipso jure in the injured person. So far as he is concerned I apprehend there can be no doubt. If it did not so vest he could have no action at all, for an action is brought for the purpose of constituting and enforcing rights already vested in the pursuer. If he has no right he has no action. Well then, his Lordship goes on to say that the right vests prior to any proceedings for decree for its constitution. And then he says that it is a moveable claim and assignable either by positive evidence or implied legal assignation, and passes to personal representatives. Now if Lord Wood meant only that the action once instituted may pass to the representative of the pursuer on his death, that proposition is abundantly supported by the authority of decisions of this Court and by the authority of the House of Lords in Darling v. Gray (1892, 19 R. (H.L.) 31), because in that case the House of Lords expressed no doubt whatever that the deceased pursuer's mother was entitled to be sisted in his room as executor and to carry on the action instituted by him. And he says the law has long been settled that, when the deceased has instituted an action to enforce his claim his executor can take up and insist in the process to the effect of recovering damages to which the deceased was entitled. Therefore so far, I think, Lord Wood's proposition is beyond doubt. He then goes on to say that it is also assignable, and I must say that I remain of opinion that if a right is transmissible to executors by law, it is, according to our well-settled legal principles, of necessity assignable by the person from whom it may be legally transmitted.
Our law on this subject divides claims into two categories— transmissible, and personal and intransmissible—but there is not to be found in our books the trace of a suggestion that there is a third category—transmissible but not assignable. According to our system, rights of action are assignable; and if a man's right of action will pass to his executors if he does not deal with it himself, it seems to me to follow that he may deal with it himself during his life, or the law would be that the legal executors of a man have the absolute right to take through him against his will, and excluding his assignees or legatees.
So far, therefore, I think there is really no question. But then there does arise the difficulty to which the Lord President has referred. If the injured person has said nothing about his injury, and intimated no intention of raising an action for it, it is very reasonable to say that his executors and personal representatives have not had an action transmitted to them, because they cannot assume that he treated or intended to treat the act of which they complain as a cause of action at all. I think the assumption which may reasonably arise from the possibility of a man having a claim for personal injury, ex delicto or quasi ex delicto, is totally different from that which arises from his having a claim for an ordinary civil debt. On the death of a creditor it must be assumed that he intended to enforce payment of his debts unless he has done something to waive his right, and the person who affirms waiver has to prove it. But then I think there may be a very reasonable assumption the other way when an executor proposes to sue for an injury to the personal feelings of the deceased which he has indicated no intention of complaining about at all, because it may very well be the case that a man may have suffered a legal injury in respect of which he would never think of bringing an action. If he did not choose to complain, why should his executor be entitled to do so? Therefore, if Lord Wood meant that a right of action transmits absolutely without reference to anything that may have been done by the injured person to establish his own intention to constitute his claim, I think the case of Bern would be an authority the other way. On the other hand, his doctrine that the right vests although it may not be actually constituted is borne out by Darling v. Gray, because a claim is not constituted by raising an action but by obtaining a decree.
The question, therefore, comes to be whether the only way in which the injured person can intimate his intention to enforce his right to recover damages is by raising an action. For the reasons which I have ventured to give in the case of Traill ( 6 F. 798) I think the true principle is as put by his Lordship in the Chair in the case of Riley ( 1910 S.C. 934), when he asks, Why is it that the institution of an action is necessary? and answers that question by saying, Because that determines the intention of the injured person to claim the damages due to him.
I think with his Lordship that the argument is not much affected one way or the other by Mr Mackay's very interesting excursus on the Roman law. I cannot say that I entertain any doubt that when the
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On the remaining matter to be considered I agree entirely with your Lordship that this is a kind of case which, when it proceeds, will involve very delicate questions as to the amount or measure of damages. I think that was foreseen, and is thoroughly discussed by Lord Wood in the case of Neilson. I think they are all questions which can be more satisfactorily decided by a judge than by a jury. They can be brought under the consideration of a court of appeal in the former case when they could not be in the latter case, because the jury would have to decide them without giving the reasons, whereas we shall have the reasons of the judge who tries the case for whatever course he takes.
Now the principle upon which the rule laid down in the case of Bern rests is that an injured person may have excellent reasons for refraining from bringing an action for reparation for bodily injuries. As Lord M'Laren points out (20 R. at p. 863) —“The injured party often refrains from pressing his claim, or accepts an inadequate sum of compensation, because of his unwillingness to set his face to an inquiry involving the disclosure of facts connected with infirmity of health, losses in business, and the like, disclosures which may be very painful even when not discreditable.” The reason therefore why it was held that the executor in Bern's case had no right, title, or interest to sue for the personal injuries alleged to have been suffered by his wife is absent here. If an injured person has himself begun the action, the ground of objection to the executor's title as explained in the passage quoted above to a large extent disappears. That is because the injured person has indicated in the clearest way possible, viz., by raising an action, that he intends to make the claim. He may, however, indicate in a perfectly clear manner his intention to insist on the claim short of the actual signeting or service of a summons. I refer to what Lord Kinnear says in the case of Traill ( 6 F. 798, at p. 806)—“All that was decided in Bern's case is that if a person who has sustained bodily injury through the fault of another dies without taking any step to vindicate a right to reparation his executor cannot make a claim which during his life he abstained from making. This makes the title of a representative to sue depend upon the intention of the injured person himself to vindicate his right. But the institution of an action is not the only means of manifesting that intention.”
The question raised in Traill's case was as to the right of an assignee of a claim by a widow and children for damages for the death of the husband and father, arising ex delicto to bring an action in his own name. His title to do so was sustained. The ground of judgment was that the assignation by the injured person was just as plain an assertion of his right to demand reparation as if he had brought an action in his own name. So in the present case I think that the letter written by the agent, and received by the Railway Company,
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The Court recalled the Lord Ordinary's interlocutor of 13th November 1912 and allowed a proof.
Counsel for the Pursuer and Reclaimer— Moncrieff,K.C.—A.M. Mackay. Agents— Hill, Murray & Brydon,S.S.C.
Counsel for the Defenders and Respondents— Clyde,K.C.—Blackburn,K.C.— Hon. Wm. Watson. Agents— Hope, Todd & Kirk,W.S.
