Scottish Court of Session Decisions

Stephen Conway, a labourer in the employment of Messrs J. & A. Mitchell, builders, Glasgow, was injured by a stone falling on his head while engaged in his work. He brought an action of damages against his employers, but died during the course of it. The action was continued by his widow as his executrix, and the defenders were ultimately assoilzied.

Subsequently the present action was raised by the widow Mrs Conway, and by Conway's children. It was directed against Doctors Dalziel and Buchanan, both of Glasgow, Messrs J. & A. Mitchell, and Thomas M'Lelland, writer in Glasgow, and concluded that the defenders should be ordained “to make payment, jointly and severally, or severally, to the pursuers of the sum of £500 sterling.”

In this action the pursuers, after narrating the facts above mentioned, made the following averments:—“(Cond. 4) By instructions of the said J. & A. Mitchell and of their agent the said Thomas M'Lelland, or one or other of them, the said Doctors Dalziel and Buchanan, on the day after the death of the said Stephen Conway, went to the said Mrs Conway's house and made a post-mortem examination of the said Stephen Conway's body. No intimation of any kind was given to pursuers, or any of them, or to any one on their behalf, of the intention of the said doctors to call and make a post-mortem examination of the deceased, nor did the said doctors when they called to make said examination, or at any other time, ask or receive the consent or authority of the pursuers, or of anyone else on their behalf, to make such an examination. The said two doctors made no explanation whatever to the pursuers, nor to anyone on their behalf, of their intention, but simply took possession of the body, and ordered Mrs Conway and those of her family who were present to leave the room. Mrs Conway not knowing the purpose of the doctors, made no opposition. The said post-mortem examination was made by the said two doctors wrongfully, no legal authority to make the same having been received by them or by those who instructed them.… Explained that Dr Connor (a medical man who had attended the deceased up to the time of his death, and who was present at the post-mortem examination), called on the said Mrs Conway with reference to a post-mortem examination of the deceased. Mrs Conway told Dr Connor that she objected to any post-mortem examination of the deceased.… In any event she never consented to the removal of portions of her husband's body.… (Cond. 5) A considerable time after said examination was made the pursuers learned that the said two doctors, when they made the said post-mortem examination, cut out and abstracted from the body several internal organs, namely, the liver, the gall bladder, and parts adjacent. These organs were taken away by them, and are still in their possession. The said organs were cut out and taken away without the consent of the pursuers. The said Dr Connor had no mandate from the pursuers to acquiesce on their behalf in the abstraction and removal of said organs. In point of fact he did not so acquiesce. (Cond. 6) The action of the defenders in causing a post-mortem examination of the said Stephen Conway's body to be made hurt the feelings of the pursuers. Had the pursuers been aware of what was proposed to be done they would have taken steps to prevent the said examination from taking place. The pursuers would never have consented to the said examination, the idea of the body of the deceased being subjected to a post-mortem examination being repellant to them. Since they learned of the internal organs having been abstracted, their feelings have been much more hurt and wounded. The pursuers are all the persons who are entitled to sue for reparation in respect of said unauthorised post-mortem examination.”

The defenders pleaded, inter alia, (1) “The action is incompetent as laid.”

On 15th November 1900 the Lord Ordinary ( Kincairney) pronounced an interlocutor by which he sustained the first plea-in-law for the defenders, and dismissed the action as incompetent.

Opinion.—“This is an action of damages brought by the widow and children of Stephen Conway, who suffered an injury while in the employment of the defenders

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J. & A. Mitchell, builders, Glasgow. He raised an action of damages against his employers, and in the course of the action he died. His widow and executrix was sisted in his stead as pursuer. She appealed for jury trial, which took place and resulted in a verdict for the defenders J. & A. Mitchell, who were found entitled to expenses, which have not been paid.

The damages concluded for in this action are for injury to the feelings of the pursuers caused by the unauthorised post-mortem examination of the body of Stephen Conway and the abstraction of certain internal organs. The action is directed against (1) Drs Dalziel and Buchanan, who made the post-mortem examination; (2) Messrs J. & A. Mitchell; and (3) Thomas M'Lelland, writer, the agent employed by them. It is averred that Drs Dalziel and Buchanan in making the post-mortem examination acted on the instructions of J. & A. Mitchell and of their agent Thomas M'Lelland, ‘or one or other of them.’ The conclusion is for decree for £500 against these defenders, ‘jointly and severally, or severally.’ …

But the defenders have objected to the competency of the action on the ground that it concludes for one sum of damages against three separate sets of defenders for different wrongs, which was held to be incompetent in Barr v. Neilsons, March 20, 1868, 6 Macph. 651; Taylor v. M'Dougal, July 12, 1885, 12 R. 1304; and Sinclair v. Caithness Flagstone Company, March 4, 1898, 25 R. 703. That objection was open in the case of Pollok v. Workman, (January 9, 1900, 2 F. 354), and was, I suppose, taken, and if taken was repelled, on the ground, I presume, that only one wrong was alleged, namely, the post-mortem examination, in which wrong all the parties were participant; and I consider that that answer would be sufficient in this case also but for one singular but important specialty, which did not, so far as appears, occur in the case of Pollock. It is this, that in condescendence 5 the pursuers aver that a considerable time after the examination was made the pursuers learned that the doctors had cut out and abstracted from the body certain internal organs mentioned, and that these organs were taken away by the doctors and were still in their possession. In condescendence 4 the pursuers say that ‘in any event she never consented to the removal of portions of her husband's body.’ These words signify, I think, that although Mrs Conway might be held to have consented to the post-mortem examination, yet that the pursuers' action would remain good because of the abstraction of the organs of the body; and further, in condescendence 6, they say, that ‘since they learned of the internal organs having been abstracted, their feelings have been much more hurt and wounded,’ meaning thereby that the amount sued for would have been less had the internal organs not been abstracted. The pursuers have thus stated this abstraction and retention of the internal organs as a distinct and separate wrong. But who are charged with that wrong? No one, as I read the record, except the doctors. The pursuers have not said that they were instructed by the other defenders to remove these organs or to retain them. The averment is made against the doctors alone, and it is unconnected with the jury trial. As made, the pursuers would be entitled to prove that the doctors had committed this wrong for their own private purposes. Suppose they did so, could the other defenders be made liable for that wrong? I do not think they could on this record. If that be so, then the cases of Barr, Taylor, and Sinclair apply, and on the principle of these cases the action must be dismissed as incompetent.”

The pursuers reclaimed, and argued that the case was distinguished from the authorities on which the Lord Ordinary had proceeded, in respect that the removal of parts of the body was impliedly authorised by the order to make a post-mortem examination. They suggested that, if the Court was against them on this point, they should be allowed to amend their record by deleting the averments relative to the removal of parts of the body, but they did not table any definite amendment.

Counsel for the respondent were not called upon.