Scottish Court of Session Decisions

This was an action brought by Mrs Duffy, draper and general merchant, Mid-Calder, against Alexander Mungle, farmer, Muirhouse Mains, concluding for damages in respect of injury sustained by the pursuer through certain operations of the defender upon the house and shop occupied by the pursuer, and of which the defender was the landlord.

The circumstances of the case sufficiently appear from the following interlocutor and note of the Lord Ordinary ( Ormidale):—

“ Edinburgh, 20 th March 1871.—The Lord Ordinary having heard counsel for the parties in the case, and considered the argument and proceedings, including the proof,—Finds, as matter of fact, that the defender, in or about the months of October and November 1870, wrongously executed certain operations on the west gable of the house in West Calder then in the lawful possession and occupation of the pursuer, as sub-tenant thereof, to her loss, injury and damage: Finds therefore, in point of law, that the defender is liable in damages to the pursuer; assesses said damages at the sum of £40; and decerns therefor against the defender: Finds the pursuer entitled to expenses; allows her to lodge an account thereof, and remits it, when lodged, to the Auditor to tax and report.

Note.—Although the proof in this case is somewhat voluminous, the circumstances necessary now to be noticed may be shortly stated.

The defender, in the course of last year, purchased the house in question, which was then in the possession and occupation of the pursuer, as sub-tenant thereof under the principal tenant, Mr Hunter. Her right as sub-tenant extended to Whitsunday next 1871. The house consisted of two apartments, one to the front and one to the back. The front apartment was occupied by the pursuer as a shop, and she kept in it her stock of goods, consisting of clothes of various kinds and ironmongery. The pursuer's back apartment was used by the pursuer and her family as their dwelling place, and it is alluded to in the proof as the kitchen.

The defender also purchased some ground adjoining the pursuer's house, and on that ground he took measures for building another house, a storey higher than the pursuer's; and he proposed to avail himself of the existing west gable of the pursuer's house by making it answer as one of the ends or gables of the new house. He accordingly obtained from Mr Hunter, the principal tenant, the missive No. 7 of process, whereby that individual agreed, for the consideration therein stated, to the defender ‘building upon the wester gable’ of the pursuer's house. But in this missive no mention is made of any intention on the part of the defender to break into the existing gable of the pursuer's house, or otherwise to interfere with it, further than to build upon it. Nor did Mr Hunter, either by the missive or otherwise, undertake anything for the pursuer. It does not appear, indeed, that Mr Hunter had any right to authorise operations injurious to the pursuer, or inconsistent with the right of possession vested in her as sub-tenant; and he did not do so. The defender was, for anything disclosed in the proof, left to make his own terms with the pursuer.

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But the defender did not apply for or obtain any consent from the pursuer for his building operations, nor was any explanation or notice regarding them made to her before they were commenced. Not only, however, did the defender build his new house in connection with that occupied by her, but in doing so he slapped out places in the west gable of her house for two fire-places, nearly opposite to the fire-places in her house—one being opposite to the fire-place in her kitchen or back apartment, and the other opposite to the fire-place in her shop or front apartment. A new vent was also formed in the pursuer's gable by the defender, from his fire-place opposite the pursuer's kitchen, for a height of about 8 feet from the ground, where it joined or intersected the pursuer's vent. The vent from the defender's fire-place opposite the fire-place in the pursuer's shop or front apartment was formed by connecting it at once with the existing vent from the fire-place in the pursuer's shop or front apartment.

In addition to these operations, the defender, in raising his new house a storey higher than the pursuer's house, cut through part of her house, where the roof commenced, thus exposing her premises, more or less, to the fall of rain, dust, lime, and other materials.

The consequence of the defender's operations altogether was to prevent the smoke getting away from the fire-place in the pursuer's kitchen or back apartment, and to cause her loss and damage in the various ways after alluded to.

The Lord Ordinary cannot see any room for reasonable doubt on the proof that such are the circumstances of this case; and if so, there can be as little doubt, he thinks, that the defender is liable in damages to the pursuer.

It was contended, however, for the defender, as the Lord Ordinary understood the argument of his counsel,—1 st, That the pursuer's claim, if she had any at all, was not maintainable against him, but against Mr Hunter, the principal tenant, from and under whom the pursuer had her right to the premises. The Lord Ordinary cannot assent to this view. The pursuer was in the lawful occupation of her house as sub-tenant thereof when the defender commenced, and during the whole time he carried on, his operations; and the proof shows that he was all along quite aware of this. And yet he proceeded with his operations without leave asked or given, so far as the pursuer was concerned. If, therefore, these operations were wrongous, either in themselves or owing to the negligent or unskilful way they were executed by the defender, it appears to the Lord Ordinary that the defender must be answerable to the pursuer for the consequences, and Mr Hunter might also be answerable to the defender for these consequences if he had authorised the operations which caused them. But there is no evidence that Mr Hunter did authorise them. He stated, in the course of his examination as a witness, that he never did authorise them; and the Lord Ordinary cannot read the letter or missive, No. 7 of process, on which exclusively the defender relies, as containing any such authority. The result, therefore, of holding that the defender is not liable, would be to leave the pursuer without a remedy.

The defender maintained, 2 dly, that his operations were in no sense wrongous, as he was the proprietor of the pursuer's house and adjoining ground, within the limits of which all the operations in question were carried on; and therefore, that he was entitled to deal as he pleased with what belonged to himself. But the Lord Ordinary cannot assent to this proposition, which, in the circumstances of the present case, he holds to be quite untenable. The defender might perhaps have operated on the house in question as he pleased if the pursuer had had no right to it, and had not been in the lawful occupation of it. But she had for the time a perfectly valid right to the house as sub-tenant thereof, and was, as such, in the lawful possession and occupation of it. The defender was therefore no more entitled to operate or carve on her gable, so as to cause her injury and damage, than he would have been entitled to pull down her house about her ears. The Lord Ordinary, therefore, cannot doubt that the operations complained of by the pursuer were wrongous, so far as she was concerned.

But, 3 dly, the defender contended that as the operations complained of were executed not by him personally, but by a contractor, the latter is alone liable. It appears to the Lord Ordinary that in the circumstances of the present case, there is no room for this view of the matter. He holds it to be unquestionable law that, although a person employing a contractor to do a lawful act is not responsible for the negligence or misconduct of the contractor or servants in executing that act, yet, if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that wrong. Such was the law given effect to in the case of Ellis v. The Sheffield Gas Company, 2 E. and B. 767, cited in argument for the defender himself. In that case, accordingly, Lord Campbell (C.-J.) said, with reference to the argument addressed to the Court for the wrong-doer:—‘Mr Jones argues for a proposition absolutely untenable, viz., that in no case can a man be responsible for the act of a person with whom he made a contract. I am clearly of opinion, that if the contractor does the thing which he is employed to do, the employer is responsible for that thing, as if he did it himself.’ Now in the present case it appears very clearly from the proof that the operations complained of were authorised by the defender, and that the necessary consequences of their being executed, however skilfully and carefully, were just those which occurred. The testimony of the defender's architect, Mr Waddell, and of his builder, Mr Mitchell, is plainly and unmistakeably to this effect.

The pursuer maintained, in the last place, that it had not been proved that the damage sustained by the pursuer was occasioned by his operations. This being entirely a question of fact on the proof, the Lord Ordinary need only refer to the proof, which he thinks amply supports the contention that she has sustained loss, injury, and damage by and through the defender's operations.

The only question that remains is the amount of damages to which the pursuer is entitled. That her stock of new soft goods was injured to the extent of £19, 6s. 11 1 2d. is proved by her witnesses M'Gregor and Forrest, who appeared to the Lord Ordinary to be persons of intelligence and skill in the matters spoken to by them. But besides the loss and damage spoken to and proved by M'Gregor and Forrest, the Lord Ordinary thinks there is sufficient evidence to show that

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the pursuer must also have sustained loss and damage in consequence of the defender's operations—1 st, In goods which were not examined or spoken to by M'Gregor and Forrest, viz., soft goods, consisting partly of what had been sold by her before their inspection took place, and partly of old or second-hand things which they did not examine; 2 dly, In ironmongery goods, and the furniture of the house; 3 dly, In loss of custom arising from the condition in which the premises were for some time; and 4 thly, In the discomfort and inconvenience to which she and her family were subjected. It would be difficult, perhaps impossible, to estimate with exactness the amount of loss and damage sustained by the pursuer in these various ways; but, judging of the matter as a jury would probably do, the Lord Ordinary believes he is within rather than beyond very moderate limits when he assesses them at £20, 13s. 0 1 2d., which, with £19, 6s. 11 1 2d. spoken to by M'Gregor and Forrest, make £40, being the amount of damage decerned for.”

The defender reclaimed.

Guthrie Smith for him.

Black, for the pursuer, was not called on.