Scottish Court of Session Decisions

In October 1901 John Alexander Boyce, as executor-dative of his mother the late Mrs Mary Ann Owens or Boyce, raised an action for £500 damages against Mrs Mary M'Dougall, wife of Daniel M'Dougall, and the said Daniel M'Dougall as his wife's curator and administrator-in-law and for any interest competent to him in the premises.

After averring that Mrs M'Dougall was proprietrix of a dwelling-house of two rooms at 5 Walker Street, Partick, Glasgow, and that Mrs Boyce was the tenant of said dwelling-house in December 1900, the pursuer stated—“(Cond. 2) On or about 18th December 1900 part of the ceiling of said house fell, and in falling it struck the said Mary Ann Owens or Boyce on the head and other parts of her person whereby she sustained the injuries after mentioned. (Cond. 3) For said occurrence the defender Mrs Mary M'Dougall was responsible. It was her duty to keep said ceiling in a safe condition, and the said Mary Ann Owens or Boyce relied, and was entitled to rely, on its being kept in such condition. Notwithstanding this the said defender allowed it to become insecure and a source of danger… . (Cond. 4) As a result of said ceiling falling on her the said Mrs Mary Ann Owens or Boyce sustained severe injuries. The falling plaster made an irregular contused wound on the top of her head. Her right arm and right leg were paralysed, and paresis of the muscles of phonation ensued. Shortly afterwards symptoms of insanity showed themselves, and she became insane. She did not know the members of her own family. The paralysis and the mental incapacity from which she suffered were entirely due to the fall of the said ceiling, as above condescended on… . (Cond. 5) On 22nd June 1901 the children of the said Mary Ann Owens or Boyce applied to the Lords of Council and Session for the appointment of a curator bonis to her, and their Lordships on 6th July 1901 appointed the said John Alexander Boyce to the office… . He having found caution in common form extracted his appointment. The curator bonis gave instructions for the raising of an action of damages against the defender on the grounds on which the present action is laid. Before, however, these instructions were carried out the said Mary Ann Owens or Boyce died. (Cond. 6) On 11th August 1901 the said Mary Ann Owens or Boyce, after great suffering, both bodily and mental, died in consequence of the injuries she had received when said ceiling fell on her. The pursuer is her executor-dative, conform to confirmation-dative by the Sheriff of the county of Lanark and Glasgow, dated 17th September 1901. The pursuer has confirmed to the deceased's claim for damages against the defender Mrs Mary M'Dougall for injuries sustained and outlays incurred owing to the fall of the said ceiling. (Cond. 7) After the fall of said ceiling and as a consequence thereof the said Mary Ann Owens or Boyce was put to considerable expense. Medical expenses have been incurred. The deceased was also put to expense in connection with nursing and household arrangements. Law accounts in connection with the said petition for curator bonis and the appointment, and the discharge of the curator bonis, and in connection with the obtaining of reparation for said injuries have been incurred, and will be incurred, and these accounts will be produced in the course of the process to follow hereon. The sum sued for by way of compensation and damages is fair and reasonable in view of the sufferings sustained by the deceased, and the expense and outlay incident to the injuries sustained by her in manner condescended on.”

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The pursuer pleaded—“(1) The said Mrs Mary Ann Owens or Boyce having been injured through the fault of the female defender, or of those for whom the female defender is responsible, the pursuer as executor of Mrs Mary Ann Owens or Boyce is entitled to reparation.”

The defender pleaded, inter alia—(1) “No title to sue.”

On 23rd October 1902 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Sustains the first plea-in-law for the defenders, dismisses the action, and decerns.”

Note.—“The decision of this case turns on a narrow point. The pursuer is John Alexander Boyce, son and executor-dative of the deceased Mrs Boyce, and he avers that on 18th December 1900 she suffered an injury through the fall of part of a ceiling on her head, the effect of which was that she became paralysed and insane, and died on 11th August 1901. It is averred, and must for the purposes of this judgment be assumed, that the injury was occasioned by the defender's fault. This is an action of damages for this injury to Mrs Boyce. The damages are claimed by the pursuer not as an individual but solely as her executor, and the question is whether he as such executor has a title to sue.

“It is averred that on 22nd June 1901 the pursuer, on the petition of himself and of the other children of Mrs Boyce, was appointed curator bonis to her, and extracted his appointment, and it is averred that as curator bonis he gave instructions for raising an action of damages against the defender in respect of the injury to Mrs Boyce his ward. But Mrs Boyce died before an action was raised.

It is further averred that Mrs Boyce was put to considerable expense ‘as a consequence’ of the fall of the ceiling, and also in connection with nursing and household arrangements. Further, that medical expenses had ‘been incurred,’ and that law expenses ‘have been incurred, and will be incurred,’ but it is not averred that any part of these expenses so incurred had been paid by Mrs Boyce.

There is no further averment that Mrs Boyce was possessed of any estate, and in the confirmation her estate is said to have consisted of the present claim.

The pursuer refers specially to his petition for a curator bonis, and in that petition there is this averment:—‘The said Mary Ann Owens or Boyce has no estate other than her claim for damages against the said Mrs Mary M'Dougall.’

I think there is no relevant averment that Mrs Boyce suffered any patrimonial damage or loss, or that her estate was diminished through the injury which she suffered, and I decide the case on that footing.

The defender pleads no title to sue, and I am of opinion that the plea to title must be sustained. The defender maintains that the maxim actio personalis moritur cum persona applies. It is true that that maxim has not been literally applied in our law where the injured party has raised an action and died pendente processu. In that case the right of his representatives to take up and follow out that action has been recognised— Neilson v. Rodger, December 24, 1853, 16 D. 325.

But in Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.) 31, Lord Watson in his opinion alluded to the case of a bare claim in respect of personal injuries when there had been no action brought by the party injured, and reserved his opinion on the question whether such a claim would constitute a debt due to the party which would pass on his death to his personal representatives.

But that question was solved in the case of Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859. In that case it was held that the executor of Mrs Bern had no title to sue an action of damages for injury to her. She was an inmate of the Montrose Asylum, and had sustained injuries for which it was maintained the asylum was responsible. But no action of damages had been raised while she lived, and there was no averment that she had suffered patrimonial loss. An action of damages was raised after her death by her husband as her executor-dative and also as an individual. In the Outer House I, as Lord Ordinary, sustained the pursuer's title as executor-dative, but granted absolvitor on the ground that the alleged fault of the servants in the asylum was not proved. I thought the case ruled on the question of title by Auld v. Shairp, December 16, 1874, 2 R. 191, where the title of a widow to sue for an injury to her husband was sustained, although no action had been raised by him.

In the Inner House the case of Bern was debated before seven judges, when the pursuer's title as executor was rejected. Four judges proceeded on the ground that the maxim personalis actio moritur cum persona was applicable in principle. Lord Young was also of opinion that the objection to the pursuer's title should be sustained, but on different grounds. The other two judges were for sustaining the pursuer's title. But the judgment decides the point reserved by Lord Watson that a bare claim would not pass to the representatives of a party injured. The judges in the majority distinguished the case from Auld v. Shairp, in respect that in Auld v. Shairp the pursuer had averred a definite patrimonial injury, which gave him a title to sue.

It is to be observed that in the case of Bern there was no room for the suggestion that the claim, which was certainly vested in Mrs Bern had been abandoned by her, because she was mentally incapable of doing so.

The defender maintained that the case of Bern was almost identical with this case, and that the judgment in it was conclusive. In this case as in Bern there was no action during the life of the party injured. In the case of Bern there was no question as to patrimonial injury, and in this case I hold that patrimonial injury is not relevantly averred. There was no

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room for implying abandonment of the claim in either case. The only difference seems to be this, that in this case a curator bonis was appointed, and it is averred that he intended to raise an action, and there was nothing of that sort in Bern.

The point of difference between this case and Bern is this, that although in Bern's case there was no room for holding the claim abandoned by the person injured, yet there was no proof of his intention to enforce it. Here the pursuer undertakes to prove that he, as representing the party injured, did intend to enforce the claim. Had he as curator raised an action, it would be difficult to affirm that, according to our practice, that action would fall on the death of the ward. Such a state of facts would raise a question of great nicety. Here, however, the curator had not raised an action, but only intended to do so, and the question is whether the averment of an intention to raise an action could be held equivalent to an action raised, so as to avoid the application of Bern's case. I am unable to hold that. I have considered carefully the grounds of the judgment of the majority in that case as expressed by Lord M'Laren, and I have come to think that they cover the present case, assuming the truth of the pursuer's statement that he intended, as curator bonis, to press his claim, which I see no reason to doubt.

I therefore am of opinion that I must follow the case of Bern, and I find that the pursuer has no title to sue.”

The pursuer reclaimed, and argued—This case possessed several features which distinguished it from the case of Bern's Executor, supra. In the present case a curator had been appointed to think and act for the lunatic. Legal proceedings against the defender might therefore be said to have commenced with the petition for the appointment of the curator. Besides, the curator had given instructions before the death of the ward to enforce the claim, so there could be no presumption in this case of implied discharge. Further, in condescendence 7 there was set forth a relevant averment of patrimonial loss.

Argued for the defenders and respondents—This case was ruled by that of Bern's Executor, supra. The rule that a claim for damages for personal injury was extinguished by the death of the person injured had only two exceptions—(1) where the claim had been judicially made by an action for damages having been raised before death, and (2) where there was patrimonial loss, or where the estate of the injured person had been diminished by reason of the injury. Neither of these exceptions applied here.

At advising—