Scottish Court of Session Decisions

Sequel of the case reported ante, XV. 1304, which see. James Findlater, coal merchant in Perth, while driving a gig, at night, along the turnpike road between Dundee and Perth, by Inchture, was overturned by coming in contact with a large heap of stones, placed partly on the footpath and partly on the road. There was no light set up, or watchman posted, or any other precaution taken to warn travellers as to the state of the road. The stones had been placed on the road by persons in the service of the contractor employed by the road-trustees, and for the purpose of performing an operation under the authority of the trustees. None of the trustees had any direct or personal connexion with the conduct of the operation. The son of Findlater, who was in the gig along with him, received so much injury in consequence of the accident, that he died soon afterwards, and Findlater himself sustained considerable personal injury. Findlater raised an action of damages against the road-trustees, libelling that the obstruction on the road had been occasioned by the operations carried on by the road-trustees, “or their surveyors or contractors, or other person or persons for whom these trustees were and are responsible;” and that the trustees, “or their workmen, or others employed by them as aforesaid, did knowingly and most culpably permit that foresaid part of the north side of said road to remain in this state of danger till the following day, and did not use any means by which passengers travelling at night could be led to believe or suspect that there was any obstruction upon the said road.”

The road-trustees were sued through their treasurer, Thomas Duncan. They pleaded, inter alia, that they had employed a competent surveyor, whose duty it was to execute and superintend the operation in question, and who alone was responsible if any neglect was committed in the execution of it, by him, or his workmen, and damage occasioned thereby. In support of this plea they founded on the 16th section of their local road act, ¹ which was to this effect, “That at any of the stated general meetings of trustees it shall be lawful for the said trustees to direct the tolls arising at the gates or turnpikes, erected or to be erected on the said roads, to be applied towards making, repairing, upholding, and improving the aforesaid roads and bridges thereon, respectively, in such manner as the said trustees shall think fit; and paying the expense of management, interest of the money borrowed, advanced, and owing at the time, and the surplus shall be appropriated annually to extinguish the principal of the money so borrowed, advanced, and owing, and to no other purpose whatsoever.” An issue went to trial, whether the pursuer and his son “were overturned through the fault or negligence of the said trustees, or others in their employment, to the loss, injury, and damage of the pursuer.” At the trial, which took place before the Lord President, his Lordship “delivered to the jury, as his opinion and direction in point of law—‘That road-trustees on a public road, are liable for any injury which may happen to passengers in consequence of the negligence or improper conduct of labourers, or surveyors, or other persons employed by the trustees, or by the officers of the trustees, when engaged in any operation performed under authority of the trustees.’” The jury found a verdict for the pursuer, assessing the damages, on account of the death of the pursuer's son, at £500, and on account of the injury sustained by the pursuer himself, at £300. The defender took an exception against the direction above quoted, and, a bill of exceptions having been presented, cases were ordered.

Pleaded by the Defender,—

1. The office undertaken by the road-trustees was a gratuitous public office. So long as they acted within their powers, and in matters belonging to the trust, they could incur no liability for damages, either personally, or as trustees. The operation in question was one which it was within the proper province of the road-trustees to cause to be performed. They had employed a competent surveyor to perform it; and they were liable, neither as trustees nor as individuals, for any thing farther, as they themselves had no direct or personal connexion with the operation. If,

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¹ 2 W. IV. c. 82. Local Acts.

in the course of performing the operation, any neglect was committed, either by the surveyor, or by his servants, for whom he was responsible, an action for reparation would lie against him and his servants. But no action could lie against the trustees, either as trustees or personally, because they had neither done nor authorized any wrongful act whatever.

2. This view was strengthened by an express provision in the local road act, § 16, already quoted, which declared that the tolls should be applied to the specific purposes there enumerated, being the repair of the roads, &c., “and to no other purpose whatsoever.” There was thus an express statutory injunction against applying the trust-funds to any other than the trust-purposes. But if persons employed in the repair of the roads, should either through malice or negligence, carry on their operations so as to injure any of the lieges, neither the perpetration nor the reparation of such wrong was within the trust purposes; and it would be acting in the face of the statute to apply the funds for such reparation. Farther, it appeared from the General Turnpike Act for Scotland, 1 and 2 W. IV. c. 43, § 101, that the surveyor, or labourer, causing damage by negligence, was alone looked to as liable in reparation. It might be true that the surveyor and his servants might prove unable to satisfy heavy claims of damages; but that was no ground for subjecting other parties, who were not properly liable.

3. The decisions in Scotland, in similar cases, had not been such as to settle the law on this question; and, in England, where the office of road-trustees was of a similar nature, and the road acts were similar, there was a series rerum judicatarum which established the law on the footing contended for by the defender. ¹

Pleaded by the Pursuer.

1. It was admitted that there were no grounds for subjecting the trustees in personal liability, as they had no immediate connexion with the operation. But it was only as trustees that they had been subjected, so as to give the pursuer a claim on the trust-funds; and to that extent they were clearly liable. It was true that they were clothed by statute with the powers and character which enabled them to execute the operation in question. But still it was their operation; and they in executing it, were just as amenable, qua trustees, to the law of the country, as any private individual was, in executing an operation by which injury was done to one of the lieges.

If the operation was so recklessly executed as to occasion serious injury and damage to a person using the road, he was entitled to reparation for

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¹ Humphreys, Michaelmas term, 1827 (Manning and Ryland, p. 187)—Hall, May 28, 1824 (2 Bingh. Rep. 156)—Harris, April 15, 1815 (4 Maule and Sel, wyn, 28)—British Plate Glass Manufacturers, June 22, 1792 (4 Durnf. and East, 1794)—Bolton (4 Dowling and Ryland, 195).

the injury sustained by him; and the utmost protection which could, be claimed by the defenders was, that as they merely executed the operation qua trustees, they should only be subjected in liability qua trustees, and not otherwise. On the principle of mandate, the defenders, as trustees, were liable for the servants whom they employed to perform any operation: ¹ and the liability was not affected by the circumstance, that the servant immediately employed by the trustees did not do the work himself, but was a surveyor who employed other servants as labourers under him, for whom he was of course responsible.

2. The provision in the Local Road Act, § 16, was very general, and authorized the tolls to be applied to every thing connected with the making, repairing, or managing of the roads. These words, in their fair meaning, included the whole police of the roads; and as the tolls were taken under the implied condition of keeping the roads in good repair, it was equally implied that they should be applicable for indemnifying any party who was injured by the want of that repair. So that if the trust-funds would have been liable for the present claim, but for the above provision in the Act, there was nothing in its terms to exempt them; and the consequence of allowing any such exemption would be, that, after a party had suffered the severest injuries, as in the present case, and was found entitled to substantial reparation, amounting in this instance to £800, it would be only the mere day-labourers on the roads against whom he could make his claim. Such an interpretation of the law would be attended with gross hardship and injustice to the community.

3. The decisions in Scotland had completely settled the law as contended for by the pursuer; ² and accordingly it had been assumed in a large number of cases, without any attempt being made to raise a question on the subject. In regard to the English authorities referred to by the defender, it was almost always difficult to draw analogies from such decisions, which necessarily referred to the precise terms of English statutes, and the peculiar remedies allowed by English forms. And, in particular, it appeared that in England, the Court must have subjected the trustees personally, if at all, and had not the means which existed in Scotland, of subjecting the trustees, qua trustees only, so as to affect the trust-funds, while exempting the trustees personally. Any precedent from England, therefore, merely amounted to this, that the trustees should not be subjected personally; and the pursuer

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¹ 3 Ersk. 1, 15.

² Mitchell, Feb. 1, 1838 (ante, p. 409)—Strachan, Feb. 21, 1837 (ante, XV. 637)—Millar, July 17, 1828 (4 Murr. Rep. 563)—M‘Lauchlan, May 14, 1827 (4 Murr. Rep. 216)—Innes, Feb. 6, 1798 (13189)—Gunn, Feb. 28, 1820 (2 Murr. Rep. 194)—Nimmo, July 8, 1832 (ante, X. 844)—Kelly, Jan. 22, 1833 (ante, XL., 287)—Mitchell, Feb. 1, 1838 (ante, p. 409.)

had never concluded that the trustees in this case should be personally subjected.