Scottish Court of Session Decisions

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Cite as: [1891] SLR 28_872, [1891] ScotLR 28_872

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SCOTTISH_SLR_Court_of_Session

Page: 872↓

Court of Session Inner House First Division.

[Sheriff of the Lothians and Peebles.

Tuesday, July 14. 1891.

28 SLR 872

Darling

v.

Gray & Sons.

Subject_1Reparation
Subject_2Title to Sue
Subject_3Two Actions for Same Injury.
Facts:

A workman died during the progress of an action of damages which he had brought against his employers for injuries sustained in their service, and his mother, as his executrix, was sisted as pursuer in the action. The mother afterwards brought an action of damages as an individual against her son's employers for the loss caused to herself by the death of her son. Held that this second action was incompetent.

Headnote:

Alexander Darling, a mason in the employment of Messrs William Gray & Sons, builders, raised an action against his employers in the Court of Session to recover damages in respect of injuries which he had received while in their employment, and, as he alleged, through their carelessness. He died on 6th January 1891, during the progress of the action, after issues had been adjusted, and his mother, as his executrix, lodged a minute sisting herself as the pursuer in the action.

On 30th April 1891 she raised another action in the Sheriff Court at Edinburgh as an individual against the same defenders, in which she sought to recover damages from them as solatium to herself and as reparation for the loss which she had sustained by the death of her son.

The defenders pleaded, inter alia, that the action was incompetent.

The pursuer having mentioned that she intended to appeal the case to the Court of Session with the view of having it conjoined with the action brought against the defenders by Alexander Darling before his death, the Sheriff-Substitute ( Hamilton) on 6th June 1891 pronounced an interlocutor allowing a proof before answer without disposing of the defenders' pleas in so far as preliminary.

Page: 873↓

The pursuer appealed to the Second Division of the Court of Session, and argued—In the first action the executrix could only recover damages for injuries done to the dead man himself, while in the present one she claimed for injuries done to her through his death. She had suffered pecuniary loss for which she demanded recompense, as well as solatium for her wounded feelings. Even if her son's claim for damages had been settled in full, and he had subsequently died of his injuries, she would not have been barred from suing for damages for her loss. This case should therefore be conjoined with the first action, and remitted to the Lord Ordinary to be tried conjointly with it— Eisten v. North British Railway Company, July 13, 1870, 8 Macph. 980.

The defenders argued—The present action was incompetent and unnecessary. It was enough for the defenders to have to meet one action for the one injury. There was no authority for allowing a second action to be raised to obtain further damages for the same injury as was covered by the first. This was clearly established in England by Lord Campbell's Act— Stevenson v. Pontifex & Wood, December 7, 1887, 15 R. 125; Macmaster v. Caledonian Railway Company, November 27, 1885, 13 R. 252; Addison on Torts, 454.

At advising—

Judgment:

Lord Young—The question argued before us in this case was represented as being one of interest and importance, and also of a novel character. I quite allow that it is so; I cannot, however, allow that it presents any difficulty. The facts are quite clear. Alexander Darling, a workman employed by Messrs William Gray & Son, builders, raised an action of damages against them for injuries sustained by him in their service, and, as he alleged, through their fault. He died in the course of the action—after the serving of the summons—and his mother, qua his executrix, sisted herself as pursuer, a proceeding quite within her rights. Thinking, however, it was a favourable opportunity, she brought a second action as an individual, on the view that she was a separate sufferer by her son's death, and as such was entitled to damages for her loss and her injuries apart from his. I am not considering the special facts of this case, but will take a general view. The question is quite a novel one, and I am clearly of opinion that the course adopted by the mother was incompetent, and that the action should be dismissed as incompetent, with expenses in both Courts.

The Lord Justice-Clerk and Lord Rutherfurd Clark concurred.

The Court dismissed the action as incompetent.

Counsel:

Counsel for the Appellant— Rhind. Agent— D. Howard Smith, Solicitor.

Counsel for the Respondent— C. N. Johnstone. Agents— T. & W. A. M'Laren, W.S
1891