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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scorgie v. Hunter [1872] ScotLR 9_292_1 (22 February 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0292_1.html
Cite as: [1872] ScotLR 9_292_1, [1872] SLR 9_292_1
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SCOTTISH_SLR_Court_of_Session
Page: 292↓
Court of Session Inner House First Division.
v.
Facts:
The rule that a husband is not liable for the wife's slander does not apply to a case in which he is present and joins approvingly in the wife's abusive language.
Where a husband and wife had joined in a slander, although the wife had taken the leading part, the husband was found liable in £5 of damages, and the wife in 5s. The husband was also found liable in expenses.
Form of decerniture against a married woman.
This was an appeal from the Sheriff-court of Aberdeen.
Eliza Scorgie brought an action of damages against Leslie Hunter and Catherine Hunter for verbal slander and ill-treatment, concluding against each of the defenders for £20.
The defenders raised a counter action of damages against Scorgie, also for verbal slander.
Both actions arose out of circumstances which took place on 3d July 1871, and which are set forth in the interlocutor pronounced by the Court.
The Sheriff-Substitute ( Comrie Thomson) conjoined the actions, and afterwards (8th August 1871) pronounced an interlocutor, which, after findings in fact, proceeds—“Finds, as matter of law, that Mrs Hunter represented her husband in the shop at the time, and that he so identified himself with her actings that he is liable in damages along with her, and as taking burden on himself for her; therefore finds the said defenders, Mr and Mrs Hunter, liable in damages to the pursuer Scorgie; assesses the amount thereof at £5, 5s. sterling, and decerns therefor against the said defenders in terms of the libel; finds the pursuer Scorgie entitled to expenses of process; allows an account,” &c.
On appeal, the Sheriff ( Guthrie Smith), on 6th November, affirmed the interlocutor appealed against.
On 24th November 1871 the Sheriff-Substitute decerned for £22, 16s. 5d., as the taxed amount of expenses, against the defenders Leslie Hunter and Mrs Catherine Matthew or Hunter.
Mr and Mrs Hunter appealed to the Court of Session.
Rhind, for them, argued that, in any view, the husband was not liable for the wife's slander.
Jameson for the respondent.
The case of Barr v. Neilson, March 20, 1868, 6 Macph. 651, was referred to.
The Court had no doubt that the interlocutor of the Sheriff-Substitute correctly expressed the facts of the case. In perfectly unconnected acts of slander there could be no joint liability. But here the husband joined approvingly in the wife's abusive language, and finally laid hands on the pursuer, and attempted to push her out, and therefore must be held to have adopted his wife's improper proceedings. The only difficulty is the precise form in which decree should go out.
The case was again put out to-day, February 22.
To meet the difficulty that damages against the wife could only be recovered during the subsistence of the marriage from her separate estate, if she had any, Jameson, for pursuer, asked for decree against the husband only.
The Court considered that this would involve absolvitor of the wife, which would be inappropriate, as she was the worst offender; and accordingly proposed to divide the damages into two unequal parts, finding the husband liable in much the larger part, and the wife (under reservation) in the other part.
The following interlocutor was pronounced:—
“ Edinburgh, 22 d February 1872.—Recal the interlocutor of the Sheriff-Substitute of 8th August 1871, the interlocutor of the Sheriff of 6th November 1871, and the interlocutor of the Sheriff-Substitute of 24th November 1871, and in lieu thereof Find, in point of fact—1st, that on the occasion libelled, in the public bar of the tavern in Aberdeen, then kept by Leslie Hunter and Catherine Matthew or Hunter, his wife, defenders in the original action, the said female defender, in presence and hearing of the said other defender, her husband, and of the persons named in the libel, or some of them, accused the pursuer in the said original action, Eliza Scorgie, of being drunk, said she was a dirty trull or trail, ordered her out and to go home and dress herself, and used towards her other approbrious and abusive epithets, meaning
Page: 293↓
thereby that the pursuer was in a state of intoxication, was insufficiently and indecently dressed, and was dirty and disreputable in her appearance. 2d, That the said male defender joined approvingly in the abusive language used by his said wife on the said occasion, and said he thought the pursuer was some girl from the street, that she was drunk, and ought to go home and sleep herself sober, and violently pushed her towards the door, to the injury of her person, by all which she was hurt in her feelings, and for some time suffered in her health. 3d, That on the occasion libelled the said pursuer was perfectly sober, decently and properly dressed, respectable in her appearance, and did not use the epithets or approbrious language of and concerning the said defenders, or either of them, set forth in the counter action at their instance against the said pursuer, and did not say or do anything to account for and justify the language and conduct of the said defenders towards her; and in these circumstances find, in point of law, that the said Eliza Scorgie is not liable to the said Leslie Hunter and his said wife in damages, but that they are respectively liable to the said Eliza Scorgie in damages. But find that such damages, so far as regards the said female defender, cannot affect her person nor her means and estate falling under the jus mariti during the standing of her present marriage, but only her person and means or estate after the dissolution of the said marriage, or her separate means and estate, if she has any, during the standing of the said marriage which do not fall under the jus mariti; and subject to these findings assoilzie the said Eliza Scorgie from the conclusions of the said counter action, and decern; and in the said original action assess the damages due by the said Leslie Hunter at the sum of £5 sterling, and the damages due by the said Catherine Matthew or Hunter at the sum of 5s. sterling, and decern therefor accordingly; find the said Leslie Hunter liable to the pursuer Eliza Scorgie in the expenses of process in the conjoined actions in the Inferior Court; and decern against the said Leslie Hunter for payment to the said Eliza Scorgie of the sum of £22, 16s. 5d. sterling, being the amount of said expenses as taxed in the Inferior Court; find the said Leslie Hunter liable in expenses to the said Eliza Scorgie in this Court; allow an account,” &c.
Solicitors: Agent for Appellants— Wm. Officer, S.S.C.
Agents for Respondent— Steuart & Cheyne, W.S.