Scottish Court of Session Decisions

The weekly periodical entitled Tit-Bits advertised as follows:—“£100 will be paid by the Ocean Accident and Guarantee Corporation, Limited, 40, 42, and 44 Moorgate Street, London, E.C., to the person whom the proprietors of Tit-Bits may decide to be the next-of-kin of anyone who is killed in a railway accident in the United Kingdom, provided a copy of the current issue of Tit-Bits is found upon the deceased at the time of the catastrophe, or if it is proved that he or she is a subscriber through a news-agent or through the publishers. This sum will not be paid in the event of an accident to a railway servant when on duty, nor of a suicide. No claim will be paid in the case of the death of a child under ten years of age.”

On 28th July 1893 Robert Law, painter, Causewayside, Edinburgh, was injured by a railway accident at the Tay Bridge Station, Dundee, and died from the effects of his injuries upon 4th August 1893.

It appeared that Law had been a subscriber to Tit-Bits for many years, and had obtained his copies regularly from a newsagent in Edinburgh. His widow therefore upon 12th August made a formal claim upon the editor of Tit-Bits for the sum in the advertisement, in consequence of the death of her husband through a railway accident. Upon 19th August 1893 a letter was sent to her in these terms “Dear Madam,—I desire to inform you that, after full inquiries have been made into the circumstances

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attending the sad accident which caused the death of your husband at Tay Bridge Station, it has been found that you are entitled to the benefits of the Tit-Bits system of insurance. A cheque for £100 will be sent you during the course of next week. Pray receive my sincere sympathy in the great loss which you have sustained. Yours truly,

“ For The Editor,

J. A. S.”

And upon 23rd August this letter was sent:—“Madam,—As intimated in my letter of last week, the particulars which you sent forward as to the sad accident which resulted in the death of your husband at the Tay Bridge Station, Dundee, have been considered satisfactory, and you are entitled as next-of-kin to the £100 insurance which is extended to readers of this paper. Herewith I send you a cheque for this amount. Kindly sign the enclosed receipt and return to me in course of post.”

Upon 21st August the agents for certain children of the deceased Robert Law by a former wife sent a telegram to Newnes, Limited, the proprietors of the paper, in these terms—“Robert Law's Insurance Claim—Writing on behalf of next-of-kin. Please wait letter.”

The letter was in these terms and of the same date:—“Dear Sirs,—With reference to the claim for £100 insurance money made on behalf of the widow, as mentioned in your issue of the 19th curt., we are instructed by the whole children of the deceased to make application for their shares. We may state that our clients are the parties who would be entitled to be appointed executors and uplift the estate, but we shall be glad to learn your conditions, if any, of payment. Meantime we have to ask the favour of your retaining the money until we write you further on hearing from you.” Upon 23rd August Mr Newnes wrote in reply—“In reply to your letter I have paid the insurance money to Mrs Law. You will observe that the conditions are that the money will be paid to the person I decide to be the next-of-kin, and having decided this in favour of Mrs Law, I regret I cannot accede to the application of the children.” Mr Newnes, who sanctioned the correspondence and the payment, was the governing director of the defenders' company.

Upon 22nd December 1893, Henry Law, tailor, Dalkeith, and his brothers and sisters, the children of the deceased Robert Law by a former marriage, brought an action against George Newnes, Limited, for the sum of £100.

They averred—“(Cond. 6) In so acting and deciding that the deceased's widow is the next-of-kin of the deceased, the defenders acted and decided illegally and wrongfully and in bad faith, and in complete disregard of the terms of their said offer, and of the rights acquired thereunder by the pursuers, among whom there are no competing claims, and against whom no other person has or could intimate to the defenders that such person claimed as next-of-kin of the deceased. The defenders were not only well aware, before resolving to prefer the deceased's widow to the said sum of £100, that she was not, and did not claim as one of the next-of-kin of the deceased, but were also aware that the pursuers were his only next-of-kin.”

The defenders averred—“(Stat. 4) By the defenders' system of insurance, and under the terms and conditions thereof as stipulated by them, it is not contemplated or intended that the benefits of the insurance should be confined to the nearest blood relations of the deceased, and in coming to the decision that the deceased's widow was the party entitled to the £100 payable on the deceased's death as aforesaid, and in making payment of that amount to her the defenders acted in perfect good faith, in accordance with their usual practice, and also in accordance with the provisions of the advertisement founded on by the pursuers.”

The pursuers pleaded—“(1) The defenders having contracted with the deceased Robert Law to pay the sum of £100 to his next-of-kin in the event, as such has occurred, all as condescended on, and the pursuers being the sole next-of-kin of the deceased, are entitled to decree against the defenders for payment thereof, with interest and expenses as craved. (2) The defenders having illegally and wrongfully paid, or caused to be paid, the said sum of £100 to a person not being one of the next-of-kin of said subscriber, the pursuers are entitled to decree as concluded for with interest and expenses.”

The defenders pleaded—“(1) No title to sue. (2) The pursuers' averments are irrelevant. (3) Under the conditions of the insurance in question the defenders were entitled to pay the amount insured to the deceased's widow, and having in good faith decided that she was the party entitled to the said payment, and paid the amount to her, they have discharged their obligation under the said insurance.”

Upon 21st February 1894 the Lord Ordinary pronounced this interlocutor:—“Sustains the second plea-in-law for the defenders, assoilzies them from the conclusions of the action, and decerns, &c.

“ Opinion.—This is an action brought by the children and sole next-of-kin of the late Robert Law, to recover from the proprietors of the newspaper called Tit-Bits the sum of £100, for which sum it is alleged the deceased had effected an insurance with the defenders under what is called the Tit-Bits System of Insurance. The facts as set forth on record, and which are not in dispute, appear to be these:—The proprietors of Tit-Bits have for some time advertised in their paper that they, or a certain insurance company on their behalf, will pay the sum of £100 ‘to the person whom’ they, the proprietors, ‘may decide to be the next-of-kin of anyone who is killed in a railway accident in the United Kingdom, provided a copy of the current issue of Tit-Bits is found upon the deceased at the time of the catastrophe, or if it is proved that he or she is a subscriber through a newsagent or through the publishers.

The late Robert Law was a regular subscriber

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of Tit-Bits through a certain newsagent in Edinburgh. In July last he was killed at Dundee by what is admitted to have been a railway accident. He left a widow and certain children of a previous marriage, who are the present pursuers. The insurance money was claimed by the widow on the footing apparently that she was the next-of-kin in the sense of the advertisement. It was subsequently claimed by the pursuers as being the only next-of-kin, of the deceased in the legal sense. The defenders decided to pay to the widow, intimating to her that the particulars of the accident had been considered satisfactory, and that she was entitled as next-of-kin to the insurance money, for which, accordingly, they enclosed a cheque. The pursuers challenge that this payment was illegal and wrongful, and maintain that the defenders are still bound to pay to them as the true next-of-kin.

I am of opinion that the pursuers have no title to sue, or at least, that their title is excluded by the decision of the defenders in favour of the widow. The defenders' obligation was not to pay to the next-of-kin but to such persons as the defenders might decide to be the next-of-kin. Prima facie, therefore, their decision was a condition-precedent of the right to sue, and although it may probably be true that if they delayed or refused to decide, or decided in bad faith, or otherwise acted in the matter dishonestly, the next-of-kin might have a right of action to enforce the contract, there is plainly no room in the present case for any suggestion of that kind. The widow was certainly not the next-of-kin, or one of the next-of-kin according to the law of Scotland, or, so far as I know, according to the law of England; but the question after all was what the defenders meant by the expression as used in their advertisement, and of that they reserved to themselves to be the sole judges. They decided in favour of the widow, so far as appears, from no interested motive, and quite honestly, and that being so, they cannot, in my opinion, be required to pay over again to the pursuers. I propose, therefore, to find that the pursuers' statements are irrelevant, and assoilzie the defenders from the action.”

The pursuers reclaimed, and argued—It was ultra vires of the defenders to pay the money to the widow of the deceased when it was admitted that a wife was not one of the next-of-kin either by English or Scottish law. All that the defender could do was to name which of the next-of-kin was entitled to the sum offered, but he could not choose a person who was not next-of-kin at all. . Upon the proof it was shown that information that the real next-of-kin were applying was given to the defenders before they paid to the widow— Smokeball Company's case, L.R., 1893, 12 B. 256.

The respondents argued—Newnes had intimated to the widow that he had preferred her to this insurance money before he received any intimation that the next-of-kin of the deceased were claiming in the matter. He had therefore exercised his discretion, and had selected the widow as the person who was to receive the money. He was therefore bound to pay it to her. Under the Intestate Succession Act the widow became one of the heirs in mobili—bas, and it had been decided that the next-of-kin were the heirs in mobilibus, so that Newnes was within his right when he selected her— Tronsons v. Tronson, November 2, 1884, 12 R. 155. Even if the widow was not next-of-kin, the defender was entitled to choose her, because he exercised his discretion in the way in which he said he would do in the advertisement, and acted without fraud— Martins v. M'Dou—gall's Trustees, December 5, 1885, 13 D. 274; Ramsay v. United, Colleges of St Andrews, June 28, 1860, 22 D. 1328, aff. June 4, 1861, 23 D. (H. of L.) 8. The decision of the proprietors was a condition-precedent of the pursuers suing under this contract at all, and they had not that decision in their favour, therefore they had no title— Caledonian Railway Company v. Gilmour, December 16, 1892, 20 R. (H. of L.) 13.

At advising—