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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aitken v. Gourlay [1903] ScotLR 40_398 (04 March 1903)
URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0398.html
Cite as: [1903] ScotLR 40_398, [1903] SLR 40_398
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SCOTTISH_SLR_Court_of_Session
Page: 398↓
Court of Session Inner House Second Division.
[Sheriff Court at Stirling.
v.
Facts:
A woman whose husband had been divorced for desertion brought an action of damages for the death of their child. She averred that she did not know where the father was, or whether he was dead or alive, and that she had supported herself and her children without any assistance from him since he deserted her about five years before. Held that the father must be presumed to be alive, and ( diss. Lord Young) that while the father was in life the mother had no title to sue.
Page: 399↓
Mrs Janet Brand or Aitken raised an action in the Sheriff Court at Stirling against William Gourlay, builder, 13 Forth Crescent, Stirling, and Thomas M'Nab, joiner, Friar Street there, to recover damages for the death of her child James Brand Aitken, aged five years and five months, who was killed by an accident for which the pursuer alleged the defenders were responsible.
The pursuer averred—“(Cond. 1) The pursuer resides at 6 Viewfleld Place, Stirling, along with her family, which at the date of the accident after mentioned consisted of three boys and a girl. One of said boys died as the direct result of said accident, and another from shock as a result of his brother's death. The surviving girl and boy are aged respectively fourteen and twelve years. By decree of the Court of Session of 18th January 1902 the pursuer obtained divorce against Thomas Aitken, who was her husband, and also custody of the children of the marriage, and in particular of, inter alia, James Brand Aitken after mentioned. The said Thomas Aitken deserted the pursuer about five years ago, and she has no knowledge of where he is, and she does not know whether he is dead or alive. The pursuer has been the sole means of support of her children since her husband deserted her, both prior to and subsequent to the divorce.”
The pursuer pleaded—“(1) The pursuer's said child James Brand Aitken having been deprived of life through the fault and negligence of the defenders, or of those for whom they are responsible, the pursuer is entitled to damages and solatium from the defenders therefor, with expenses.”
Separate defences were lodged for Gourlay and M'Nab, and each of the defenders pleaded “No title to sue.”
On 12th June 1902 the Sheriff-Substitute ( Buntine) sustained the pleas of no title to sue, and dismissed the action.
Note.—“This is an action of damages brought by a mother against two parties whose negligence she avers was the cause of the death of her son.
It is admitted that the pursuer obtained a decree of divorce on the ground of desertion in January of this year. She states that she does not know whether her former husband is dead or alive. I must therefore assume that the father of this child is still alive. If that be so, then he is the person who has the primary right to recover damages for the death of his son.
That right is founded on the mutual obligation to aliment which exists between father and child. See Eiston, 8 Macph. 980.
That obligation does not cease by the divorce of the father. See the case of Foxwell, 2 F. 932, where a divorced father was held primarily liable for the aliment of his child.
It is, I think, clearly settled that the right of an action like the present cannot exist in two persons at the same time for the same injury. See Darling, L.R. 1892, App. Oases, 576, and the opinion of Lord M'Laren in the case of Whitehead, 20 R. 1049. That right of action remains with the father of a child while he lives, even after divorce, just as the obligation on the child to aliment his father is not removed by the divorce of his parents.
If, however, the father were to renounce his right of action, or if the pursuer could prove that he was dead, then I think that she would have a good title to sue. I have accordingly dismissed the present action instead of granting absolvitor to the defenders.”
On appeal the Sheriff ( Lees) by interlocutor dated 12th August 1902, adhered to the interlocutor of the Sheriff-Substitute.
Note.—“I concur throughout in the opinion of the Sheriff-Substitute. I was favoured with an able argument on the question of relevancy; but it would be improper to express any opinion on the point if the pursuer has no title to bring the action before the Court. And I agree with the learned Sheriff-Substitute that she has no title to sue.
It is not doubtful that in the ordinary case a married woman has no title to sue an action for the death of her child if her husband is alive and has not renounced his right to sue or assigned it to her. But in the present case the pursuer is not quite in the ordinary position. She was granted decree of divorce from her husband in January last on the ground of desertion, and she contends that this gives her a title to sue, especially as the custody of the children was given to her. Or, she says, at anyrate it gives her a right to sue if her husband is not alive, and that it is for the defenders to prove that he is alive.
I am unable to agree with either of these propositions. The decree granted did not affect the reciprocal relations and obligations of the father and his children, even if their custody was taken from him. If need be, he would have to support them or they him; and the law of succession to property obtaining between them would not be affected by the decree of divorce.
Thedecreeof divorce therefore does not, in my opinion, confer a title to sue on the pursuer, or indeed affect the matter at issue. If the father is alive he has the title to sue, if he is dead it does not matter whether he was divorced or not.
The next question is, on whom is the onus of proving the death of the pursuer's husband? The circumstances of the case do not yield any presumption of his death. Nothing is said of the husband's age, and the length of his disappearance would not yield any presumption of his death even under the Presumption of Life Act. The decree of divorce may be said to assume that he was then alive. Decree of divorce would not be granted against a deceased husband.
On whom then does the onus rest of proving that the pursuer's husband is dead? I think it rests on her. If under a contract or a-delict a right arises in favour of A and B, and B's right emerges only on the failure of A, it is plain that it is for B to prove that his conditional institution has emerged by the failure of A. That is just the position in the present case, and the pursuer
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does not aver that her husband is dead or ask to prove it. All that she says is that she does not know whether he is alive or dead, and to prove this state of knowledge on her part will not improve her position. I think, therefore, that the plea of no title to sue has been rightly sustained.”
The pursuer appealed to the Court of Session, and argued—By reason of her husband's desertion, and his whereabouts being unknown to her, the pursuer, who was maintaining herself and her family, was entitled to insist in the present action as in her own right— M'Kenzie v. Ewing, November 19, 1830, 9 S. 31; M'Quillan v. Smith, January 15, 1892, 19 R. 375, 29 S.L.R. 315. The mutual obligation to support, and nearness of relationship between a mother and her legitimate children gave the pursuer a good title to sue—Ersk. i. 6, 56; Bell's Prin. 1633; Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.) 63, 28 S.L.R. 950; Weir v. Coltness Iron Company, Limited, March 16, 1889, 16 R. 614, 26 S.L.R. 470. The pursuer was no longer the wife of the deceased child's father— White-head v. Blaik, July 20, 1893, 20 R. 1045, Lord Adam, p. 1049, 30 S.L.R. 916—and at least she would be entitled to sue if she called the father as a defender— Pollok v. Workman, January 9, 1900, 2 F. 354, 37 S.L.R. 270. The result of the judgment appealed against was that the pursuer could have no remedy for loss and injury which were hers alone.
Argued for the respondents—The present action was unprecedented. A father's desertion did not affect the mutual obligation of support between him and his children, and therefore the sole title to sue the present action was in the child's father— Eisten v. North British Railway Company, July 13, 1870, 8 Macph. 980, Lord President, p. 984, 7 S.L.R. 638; the mother's action was therefore incompetent— Darling v. Gray & Sons, July 14, 1891, 18 R. 1164, 28 S.L.R. 872, aff., 19 R. (H.L.) 31, 29 S.L.R. 910; Whitehead v. Blaik, cit. sup. Divorce did not affect the rights and obligations between a father and his children— Foxwell v. Robertson, May 31, 1900, 2 F. 932, 37 S.L.R. 726.
At advising—
The objection which your Lordship is for sustaining here, on grounds very clearly expressed by the learned Sheriff, is that the pursuer has no title to sue. Now, observe the circumstances in which the action is brought, and by whom. The wife and children are wilfully and maliciously deserted by the head of the family. The child who was killed was only five years old, and the father had been in desertion for five years, and had left his children destitute with their mother's industry as their only means of support. The question would have been precisely the same had the child been so injured as to be a cripple for life, deserted by his father, to be supported for life by the industry of his mother. I assume that there would have been a relevant ground of action at the instance of the mother who had to support her cripple child, her husband being divorced for wilful and malicious desertion. Although that divorce affects the rights of the husband and wife, yet they remain the father and mother of their children, and it is objected that the mother has no title to sue such an action as the present, the father being in life. Is there any law to the effect that he alone can sue for damages, although the damage is to the mother? If there is, it is common law, not statute law. It has been held that a deserting husband may lose his rights as head of the family. It was so held in a case of slander. While the husband is head of the family he alone has the right to sue for the slander of his wife, but it was held in the case of Cullen v. Ewing, November 19, 1830, 9 S. 31, that the wife herself had the right to sue for slander, her husband being in wilful and malicious desertion. Now here the injury is done to the child to the damage of the mother, whose duty to the child is not destroyed by the desertion of her husband—the burden of it is increased—and she sues the wrongdoer for damages. He maintains that the pursuer's husband, the child's father, who is in malicious desertion, alone has a title to sue. Now I think there is no authority whatever for the law which your Lordship says is well and clearly stated by the Sheriff. If the father is neglecting his duties and obligations as head of the family I do not think he or any other can plead his rights as such to maintain that the injured mother has no title to sue for this injury, because the right to do so is in the husband. Such desertion as is averred here, namely, desertion by a father of his pupil children, is by statute made a punishable crime, punishable by imprisonment and hard labour, which may be repeated as often as the crime is committed. Such desertion does not relieve a father of any of his obligations; my opinion is based solely on the ground that his rights cannot be pleaded. I am therefore of opinion that the objection to the title to sue ought to be repelled, and the mother allowed to prove what she has averred, and to show the extent of her injury or damage.
Page: 401↓
It was observed during the discussion that the case is unprecedented. Certainly the claim is unprecedented, and it is mainly that circumstance which in my opinion prevents us from sustaining the pursuer's title to sue.
Judicial opinion frequently and strongly expressed is against extending this class of actions, “unless they can be justified on some principle which has already been established.” The same tendency of opinion militates equally against novel developments, such as sustaining for the first time a title to sue, even although the pursuer of the action might in other circumstances have had a good title to sue according to established practice—Lord President Inglis in Eisten, 8 Macph. 984; Lord Watson in Darling, 19 R. (H.L.) 31; and Lord President (Robertson) in Whitehead, 20 R. 1048. We therefore approach the question with a presumption against the pursuer's title, and not as when dealing with an enabling statute with a predisposition towards a liberal construction.
I do not understand that it is maintained that if the marriage had still subsisted the pursuer would have had a title to sue. It is quite settled that there can only be one such action, and that the husband and father has the sole title to sue it, unless he renounces or assigns his right. He sues in his own name alone. He cannot be compelled to sue and he cannot be compelled to renounce his claim, and while he lives, unless he renounces, his wife has no title to sue. The rule no doubt was established at a time when the jus mariti had a wider application than it has now, but the rule is now settled, and notwithstanding the provisions of recent legislation in regard to the property of married women there is no indication in the decisions that the rule has been affected or modified. No stronger case could be found than the recent case of Whitehead v. Blaik, in which it was held that a mother had no title to sue in her own name for damages for the death of her son, even although she sued with the consent and concurrence of her husband who was out of the country. The Lord President (Robertson) said—“No one concerned with this case ever heard of an action of damages by a married woman for the death of her child, or of an action by a father and mother jointly for the death of their child.”
In this question the position of the mother is exceptional. Her mental suffering is presumably as acute as that of the father; and if the father dies without exercising the right or discharging the claim, the mother's right to sue emerges. But the law is settled that she cannot sue while the marriage subsists. Does divorce make any difference? I am of opinion that it does not, because, although divorce affects the relations of husband and wife, it does not affect the relations of parent and child; and as the title to sue in such cases depends upon relationship coupled with a reciprocal obligation to aliment, it follows I think that a father's title to sue, even where the divorce was due to his own fault, remains unaffected.
The recent unanimous judgment of this Division in Foxwell v. Robertson, 2 F. 932, affords a strong illustration. In that case the wife obtained a divorce from her husband in November 1890, made absolute in May 1891. The child of the marriage was left in the custody of the wife. From the date of the divorce until April 1896, when she married again, the entire cost of the child's aliment and education was defrayed by her, and after her second marriage the child was alimented in family with her and her second husband. In May 1899 she raised an action against her first husband concluding for payment of aliment at the rate of £15 yearly for the child from 1st November 1890, the date of the divorce. The defender, the first husband, pleaded that in any case he was only liable in one-half, the divorce having the effect of limiting his obligation as in the case of an illegitimate child; and he succeeded in persuading the Lord Ordinary to decide accordingly. But this Division of the Court unanimously held that the Lord Ordinary was wrong, and gave decree for aliment as concluded for, holding that divorce made no difference upon the father's obligation to defray the whole cost of the child's aliment and education. In that case the law told against the father. But if the child had been killed, would not the father by parity of reasoning have had the sole title to sue?
If, then, divorce does not per se affect the position of the father, what remains? The only ground suggested is that the father has neglected his obligation to aliment his children. Now, however hard upon the pursuer such conduct on the part of the husband may have been, it is not, in my opinion, a relevant ground for conferring upon her a title to sue which she would not otherwise possess. Failure to aliment might occur during marriage, and desertion might occur although the husband were living in the same town and his
Page: 402↓
In those cases in which a wife's title to sue by herself or with a curator ad litem has been sustained, the ground of action has always been one peculiarly personal to the wife, such as slander or assault upon her person.
Further, the cases in which one or more parties have been found entitled to sue in the absence of others are cases in which, if all the parties had appeared and concurred, they would have been all entitled to be conjoined as pursuers— M'Quillan v. Smith, 19 R. 375.
The Court dismissed the appeal, of new sustained the plea of no title to sue stated for both defenders, and dismissed the action.
Counsel for the Pursuer and Appellant— Watt, K.C.—Wilton. Agent— Alexander Bowie, S.S.C.
Counsel for the Defenders and Respondents— Constable. Agents— Mill, Bonar, & Hunter, W.S., and James Forsyth, S.S.C.