Scottish Court of Session Decisions

Lord President observed that this was not an action of assythment, for no crime had been committed by the defenders, nor was there delict on their part on account of which damages could be claimed. The fault was that of a servant of the North-Eastern Railway Company; and the defenders came to be responsible because of the contract between the deceased and the North British Railway Company that they were to carry him safely to the end of his journey, and in order to do so they had to convey him over the line of the North-Eastern Railway Company. The action, therefore, lay upon the contract; and the action was just the actio injuriarum of the civil law. If Mr Eisten had survived the accident he could have claimed damages for bodily injury. But as he had not survived the accident the question was whether any one could now make this claim? Hitherto our law had only allowed the claim to be made by one who was the husband or wife, or an ascendant or descendant of the deceased; and in these cases reparation was allowed though the party claiming could not qualify pecuniary loss. The grounds on which such a claim was allowed were the nearness of relationship, and the mutual obligation of support in case of necessity between the claimant and the deceased. It was for the combination of these reasons that an action for reparation could be brought. In the case of collateral relationship there was no example in our law of an action being sustained on the one ground or on the other. In the case of Greenhorn, it was decisively settled that solatium could not be allowed to collateral relations of the deceased for the mental distress his death had caused. But if a claim for solatium could not be sustained, still less could one for pecuniary loss. It could not rest on the mere fact of the parties' affection for one another and their residence together; and it was settled law that in the case of collaterals there was no obligation for mutual support. His Lordship therefore thought, if the judges who decided the case of Greenhorn had also had to consider the question of damages for pecuniary loss, they would have held there was even less reason for affirming it than that for granting solatium for injured feelings. If people were to be liable in a further degree than they were at present, it was difficult to see where the practice was to stop. At present there was a clear line of distinction; but if those who were related in blood, and suffered pecuniarily and mentally, were to be held entitled to reparation, no one could see where the line was to be drawn. The affection between friends was often of the most tender description; and frequently there was affection of the strongest character between those who were related only by affinity. There was also often an artificial relationship, coupled with affection of an intense kind, and where the element of pecuniary injury was also present. Such was the case of a bastard child and its putative father, or a person and his adopted child. And in this last case the strength of the affection was generally the ground of the adoption. If the Court were to go the length asked in the present action, it could scarcely stop where between the claimant and the deceased there had subsisted a close affection, and where the death had caused mental distress and pecuniary loss to the claimant. At present, within the line where the law allowed a person to sue for reparation, it presumed the loss of the deceased was an injury to the claimant's affection, and would not allow it to be shown, and between the deceased and the claimant there was the mutual obligation of support. His Lordship, therefore, thought that the title of the claimants to sue must be negatived.

Lord Deas and Lord Ardmillan concurred.

Lord Kinloch—I think it clear that the present is not a case of assythment. For the action is not laid on crime, which is essential to support a claim of assythment. It may be doubtful whether such a claim can ever be prosecuted against a Company, which cannot as such commit a crime. But at any rate the action is not laid on crime. It is a civil action of reparation, and nothing else.

As such the action is not derivative or founded on any right possessed by the deceased, and transmitted to the pursuers. It is a proper personal action pursued by them in their own alleged right. They sue for damages as directly due to them in consequence of the loss of their brother, from his being killed on the railway represented by the defenders.

That such an action is competent by our law, though not recognised by some other systems of jurisprudence, is undoubted. But the privilege has been hitherto confined to relatives in the nearest degree—to husband and wife, to parent and child; perhaps generally to ascendants and descendants. Admittedly it is not extended to all relatives; and a limit must be fixed somewhere. I am of opinion that, both by principle and practice, the line must be held drawn so as to exclude collaterals, such as brother and sister. One reason for this may justly be stated to be that collaterals are not liable to a legal claim for support: and the loss of one of these is not therefore a patrimonial loss, in the sense of anything being lost to which a legal right was held. Another reason may lie in a due discrimination between the feelings possessed in the different cases. I think it is a wise arrangement of the law which confines the right to the nearest relatives, of the injury to whom there can be no doubt; and does not take cognisance of the very varying state of things which may exist in the circle beyond.

Whilst thus considering the present claim to be excluded in legal principle, I am further of opinion that its exclusion directly follows from the decision in the case of Greenhorns v. Millers. It is true that in that case nothing was in controversy but a solatium to wounded feelings; and that the Court did not decide any more than the point actually before them. But in sound legal inference I consider the exclusion of a legal claim for solatium to infer the exclusion of a claim for all other reparation. The principle of liability is the same in both cases; there are only involved two different

Page: 640↓