Scottish Court of Session Decisions

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Cite as: [1903] SLR 40_460, [1903] ScotLR 40_460

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SCOTTISH_SLR_Court_of_Session

Page: 460↓

Court of Session Inner House Second Division.

[Sheriff Court of Lanarkshire at Glasgow.

Tuesday, March 10. 1903.

40 SLR 460

Schmidt

v.

Caledonian Railway Company.

Subject_1Expenses
Subject_2Parties Liable
Subject_3Husband
Subject_4Action by Wife with Consent and Concurrence of Husband — Husband and Wife.
Facts:

In an action of damages for personal injury at the instance of a married woman, with consent and concurrence of her husband, who had been present when she sustained the injuries on account of which she sued, the case was tried by a jury, and at the trial the husband gave evidence in support of his wife's averments, and a verdict was returned for the defenders. Held that the husband and wife were liable jointly and severally in expenses.

Headnote:

Mrs Jessie Kemp or Schmidt, wife of Robert Schmidt, furrier, 3 Pettigrew Avenue, Shawlands, Glasgow, with consent and concurrence of her husband, raised an action against the Caledonian Railway Company, in which she sought to recover damages for personal injuries sustained by her, which were caused by an accident for which she alleged the defenders were responsible.

The case was tried before the Lord Justice-Clerk and a jury.

Robert Schmidt was present when the accident happened to his wife, and consequently was in a position to judge of her grounds of action. At the trial he gave evidence in support of her averments.

The jury returned a verdict for the defenders.

In moving the Court to apply the verdict and for expenses, the defenders maintained that the pursuer and her husband should be found jointly and severally liable in expenses.

Argued for the pursuer—The mere consent and concurrence of the husband was not sufficient ground for making him liable in expenses— Whitehead v. Blaik, July 20, 1893, 20 R. 1045, 30 S.L.R. 916; Fraser v. Cameron, March 8, 1892, 19 R. 564, 29 S.L.R. 446; White v. Steel, March 10, 1894, 21 R. 649, 31 S.L.R. 542; Macgown v. Cramb, February 19, 1898, 25 R. 634, 35 S.L.R. 494; Chalmers v. Douglas, February 19, 1790, M. 6083, revd. Baillie v. Chalmers, April 6, 1791, 3 Pat. App. 213; Maxwell v. Young, March 7, 1901, 3 F. 638, 38 S.L.R. 443; Picken v. Caledonian Railway Company, October 26, 1901, 4 F. 39, 39 S.L.R. 31. Apart from giving his consent the pursuer's husband had done nothing to identify himself with her action; at the trial he had taken no more active part than an ordinary witness.

Counsel for the defenders were not called upon to reply.

Page: 461↓

Judgment:

Lord Justice-Clerk—Mr Watt frankly admitted that he knew of no case until very lately in which, where a woman complained of personal injuries and sued with consent of her husband in respect of these injuries, the question had been raised whether the husband was liable in expenses. Now, in this particular case I think we have all the circumstances which tend to show that the husband was active in the matter. He was present at the time the accident took place, and therefore knew the circumstances in which it took place. He joined with his wife in making a statement in regard to these circumstances, and I am satisfied from what I heard at the trial that that statement was not true, and therefore he joined with her in endeavouring—I do not say by perjured evidence, but by that exaggerated and untrustworthy evidence which is so common in such cases—to set up a case against the defenders, and was unsuccessful. Now the Lord President in the case of Picken, 4 Fraser 39, made use of words which I may read and use as my own—“It appears to me that the jury must have thought, and I am not in the least surprised if they did think, that there was really no substance in the case. They must have considered that the evidence as to the condition of the wife's health was exaggerated and could not be relied upon, and if the husband initiated, or was a party to initiating, and supported by his evidence as well as by his instance, a case which proved not to be a substantial one, it seems to me that he should be held liable to the opposite party in expenses.” I think that expression is just exactly what my own view is, and I am in favour of granting decree here both against the wife and the husband.

Lord Trayner concurred.

Lord Moncreiff—I am of the same opinion. It is a very difficult thing to dissociate a husband's liability from that of his wife. There may be cases where that can be done, and Mr Watt has referred to some of them, but where a husband either knows the facts or should know them, and the proof of the facts averred entirely fails, I see no reason for absolving him from joint liability with the wife for expenses.

Lord Young was absent.

The Court applied the verdict, and found the pursuer and her husband jointly and severally liable to the defenders in expenses.

Counsel:

Counsel for the Pursuer— Watt, K.C.—Burt. Agents— M. J. Brown, Son, & Co., S.S.C.

Counsel for the Defenders— Clyde, K.C.— MacRobert. Agents— Hope, Todd, & Kirk, W.S.
1903