Scottish Court of Session Decisions

In March 1888 Mrs Helen Street Stewart or Henderson brought in the Sheriff Court at Rothesay an action against “William Munn for £1000 damages. The pursuer and her deceased husband Mr W. D. Henderson had been tenants from year to year of a house belonging to the defender in Demerara Place, 32 Ardbeg Road, Rothesay, from “Whitsunday 1883. After her husband's death, which took place on 11th November 1887, the pursuer continued to be tenant of the said house under the defender, her landlord.

The parties having been allowed to revise their pleadings, the pursuer averred—“It was a special or implied condition of the occupancy of said house by the late W. Dunlop Henderson and the pursuer that it was habitable, and that the drains and general condition of the house as regards sanitary arrangements were satisfactory and unobjectionable. In or about the month of August 1887 the pursuer and her family experienced most disagreeable smells in the house, and it was discovered that the sanitary arrangements and drains were defective. Intimation of this was at once made to the defender, who was several times called upon to have the matter remedied, but notwithstanding of the repeated complaints by the pursuer defender maintained that there was nothing requiring attention, and he did nothing to remedy the defects complained of. The said deceased “W. D. Henderson had occasion more than a year ago to complain to the defender of the condition of the house, and the defender pretended to the said deceased and the pursuer that he had made the drains good and sufficient, and pursuer was thereby induced to remain in possession. As the disagreeable smells still continued, and defender having refused, or at least failed, to get the same properly looked after and attended to, the pursuer in the month of September 1887 lodged a complaint with the sanitary authorities in Rothesay, and the complaint was intimated to defender. Pursuer believes and avers that defender paid no, or at least insufficient attention to these complaints—suggestions of the authorities, and of other tradesmen, as to what was necessary to put said drains in proper condition, having been altogether disregarded. Through the effects of the insanitary condition of said house the pursuer and family suffered in health, and her three children became ill of diphtheria, whereof two of them died. The pursuer specially took the house in question for the purpose of adding to her own income by letting out the same with attendance, and she did so for her own interest, and on her own behalf, but some of the families to whom pursuer had let her apartments for the summer months of 1887 had to leave the house. The pursuer has also been deprived of the use of the house, and has been under the necessity of removing from it. This was all directly caused by and attributable to the insanitary state of said house. From the effects of the insanitary condition of said house as before mentioned the pursuer has suffered loss and damage in doctor's bills, medicines, want of boarders, and expenses of removing, &c., and solatium for the loss of her two children, to the extent of at least £1000.”

The pursuer pleaded—“(1) The defender not having fulfilled the terms of said let, and thereby committed a breach of contract, the pursuer is entitled to decree as craved, with costs. (2) The pursuer, by defender's breach of duty and negligence in failing to have and keep said house in a sanitary condition, having suffered loss and damage to the amount sued for, decree ought to be granted as craved, with interest and expenses. (3) The deaths of the pursuer's children and the loss mentioned on record having been caused by the fault of the defender, all as condescended on, the pursuer is entitled to solatium and reparation, and to decree as concluded for.”

The defender pleaded—“(2) Defender not being responsible for the alleged loss and damage and expenses and solatium, or any of these, and these not being due in any part to the condition of his said house, or to his fault, he is entitled to absolvitor, with expenses. (3) Defender having paid punctual attention to every complaint, and promptly done everything in his power to put and keep the drainage and premises in proper sanitary order, is not liable in loss or damage alleged. In any case the pursuer's claim is excessive.”

Upon 3rd May 1888 the Sheriff-Substitute ( Orr), at Rothesay, allowed parties a proof of their averments.

The pursuer appealed for jury trial, and proposed the following issue:—“Whether the defender, in breach or wrongful neglect of his obligations as landlord of a house in Demerara Place, 32 Ardbeg Road, Rothesay, for the year from Whitsunday 1887 to Whitsunday 1888, failed to keep the sanitary arrangements and drains of said house in proper order and repair, to the loss, injury, and damage of the pursuer? Damages laid at £1000.”

The defender objected to the relevancy, in respect the nature of the defects in the drainage

Page: 620↓

and of the complaints to the landlord were not set forth. The pursuer should have left the house and sued for damages.

Authorities— Fraser v. Hood, December 16, 1887, 15 R. 187; Scottish Heritable Security Company (Limited) v. Granger, January 28, 1881, 8 R. 459.

The pursuer maintained that there was sufficient specification. She had been induced to stay on in the house owing to the representations of the defender that the drains would be put right.

At advising—