Scottish Court of Session Decisions

In October 1903 Mrs Mary Burt Allan or Broom, widow of the late John Broom, warehouseman, Glasgow, as an individual, and also as tutor and administrator-at-law for her three pupil children, raised an action against John Ritchie & Company, proprietors and publishers of the Scotsman, for payment of £500 to her as an individual and £250 to her on behalf of each of her three children.

The pursuer averred—“(Cond. 2) On 3rd July 1903 the said John Broom, who suffered from a weak heart, and also occasionally from insomnia, and who was in the habit of taking chloral to induce sleep, died at Watson's Temperance Hotel, Bannatyne Street, Lanark, from the effect of an accidental overdose of chloral acting on a weak heart, The said John Broom began to take chloral about nine months before his death. At first he bought the drug in quantities of 20 grains at a time, which he diluted with water and kept in a bottle. Afterwards he used to buy the drug in larger quantities, as he thought the smaller quantities were doing him no good. In taking a dose he never measured it in any way, merely pouring some into a glass and drinking it off, The letter mentioned in answer and the envelope in which the same was enclosed are produced and referred to. The said letter, which was written by the said John Broom at the Imperial Hotel, Helensburgh, while on his way from Shand on Hydropathic to Lanark, is a cheerful and affectionate letter, and makes reference to his improvement in health. The said envelope, on which the pursuer's name and address were written in ink, had written on it in pencil the French phrase ‘Je t'amie.’ This was in accordance with a usual habit of the deceased in writing letters to the pursuer. Admitted that there was in deceased's pocket a revolver which he occasionally carried. (Cond. 3) In the issue of the Scotsman newspaper of 4th July 1903, printed and published by the defenders, there appeared a paragraph in the following terms:—‘Determined Suicide at Lanark.—Yesterday afternoon, John Broom, warehouseman, carrying on business at 46 Gordon Street, Glasgow, was found to have committed suicide in a temperance hotel in Lanark. The deceased before retiring on Thursday night asked not to be disturbed on Friday as he wished to spend all day in bed, but one of the servants having noticed that the bed was not occupied informed her mistress, who ordered the door to be forced open. The deceased was found on the floor, and a glass which had contained chloral was standing near by. A revolver was also found in accused's possesion, but it had not been used.’ Said paragraph is of and concerning the said deceased John Broom, and the statement that he committed suicide is false and calumnious, and was written, printed, and published by the said defenders wrongfully and illegally. (Cond. 4) The pursuer has suffered grievously in her feelings and reputation, and she and her said children will continue to suffer therein owing to the wrongful and illegal publication of said false and calumnious statement.”

The pursuer pleaded—“(1) The defenders having wrongfully and illegally printed and published the false and calumnious statement condescended on, to the prejudice and damage of the pursuer and her said children, are liable to the pursuer in damages.”

The defenders pleaded—“(1) No title to sue. (2) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons. (3) The pursuer's averments, so far as material, being unfounded in fact, the defenders should be assoilzied. (4) The defenders should be assoilzied in respect that the statements in the paragraph complained of are true.”

On 8th March the Lord Ordinary (kincairney)

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pronounced the following interlocutor—“Sustains the first plea-in-law for the defenders: Assoilzies them from the conclusions of the action.”

Note.—“This case raises a question of interest, importance, and novelty. The pursuer is the widow of John Broom, warehouseman in Glasgow, who died suddenly on 3rd July 1903. On 4th July a paragraph appeared in the Scotsman which ascribed his death to suicide, and gave various particulars which made death by suicide appear probable. I need not repeat these particulars. The pursuer gives them no express denial, but on record she has explained that the state of her husband's health might explain his sudden death. She absolutely denies the allegation of suicide, and avers that the statement in the paragraph is false and calumnious. She does not, however, say that she complained of the paragraph or requested a correction of it, and she does not aver malice or even negligence. She avers that she has suffered in her feelings and reputation, but she does not say that she has suffered pecuniary loss.

The defenders plead that the pursuer has no title to sue, and that plea has been elaborately discussed.

On the assumption that the statement in the newspaper was untrue, I think it may be also assumed that it was defamatory of the deceased. It is unnecessary to discuss the moral quality of the act of suicide. But I think that, supposing it were averred mistakenly that a man had committed suicide when he had not, but was alive, he could maintain an action of damages for defamation, or if one were falsely charged with attempting to commit suicide, I have no doubt that the averment would be actionable. If the paragraph were not defamatory there would be no ground of action and nothing to discuss.

The question raised is therefore a question in the law of defamation.

The defamation was post mortem, and it signifies nothing that it was made immediately after the death of the person defamed. The legal question would have been the same had the statement—or for that matter any other defamatory statement—been made weeks or months afterwards. Neither does the fact that the publication was in a newspaper create any specialty of importance. In principle it would have been the same had it been a private statement sufficiently published. The question therefore comes to this—whether a widow has a title to sue for damages in solatium because of a defamatory statement made about her husband after his death, which has caused her mental suffering but not pecuniary loss.

Counsel referred at some length to Auld v. Shairp, December 16, 1874, 2 R. 191, 12 S.L.R. 177, and to Bern's Executor v. The Montrose Asylum, June 22, 1893, 20 R. 859, 30 S.L.R. 748. But these cases, whether consistent or inconsistent, have no bearing whatever on this case, and did not assist the debate. They related to injuries suffered by persons deceased while they were alive, but for which they had not claimed reparation, to the transmissibility of claims or action for such injuries, and to the title of their executors to sue as executors for damages on account of them. But here the deceased suffered no injury at all at the hands of the defenders. No right of action was vested in him which could be transmitted to his executor, and accordingly the pursuer does not sue as the executrix of her husband, but in her own right, for suffering caused to herself by the aspersion on his memory. These cases therefore need not be considered.

The defenders argued that the action is bad because it concludes for solatium only, and that is true. The pursuer does not aver patrimonial loss, and it is clear that there could be none, because the defenders had nothing to do with Broom's death, and nothing was said about him until after his death.

But our law admits actions for mere solatium, and actions of damages for the death of a relative, in which all possibility of pecuniary loss was excluded, have been freely admitted.

Actions of damages for defamation concluding for solatium only are quite common, also where nothing but vindication of character and solatium, and possibly pecuniary profit, are aimed at. So that it is no objection to this action that it concludes only for solatium.

But it is maintained by the defenders that no one can sue an action of damages for defamation except the person defamed, and that a libel on a dead man is unknown to the law, the second of which propositions seems to be merely an example of the first.

It cannot, however, be said to be a general rule that a pursuer may not sue an action on account of injury done to another. Probably the most numerous class of actions in Court are actions for the death of near relatives. But these actions are limited in their range and have been regarded as exceptional, and somewhat doubtful in point of principle, and great caution would require to be exercised before extending that practice to cases falling under a different category. The degrees of relationship which have been held to warrant such actions have been fixed by a long series of cases, and precautions have been taken by the Bench to establish rules or a practice in order to limit their number— Greenhorn v. Addie, June 13, 1855, 17 D. 860; Eisten v. North British Railway Co., July 13, 1870, 8 Macph. 980, 7 S.L.R. 638; Pollok v. Workman, January 9, 1900, 2 F. 354, 37 S.L.R. 270; Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.) 31, 29 S.L.R. 910. But while that has been so in regard to such actions, the same thing has not happened in practice in regard to actions of damages for defamation. In almost all such cases, if not in all recent cases of the kind, the action has been at the instance of the person defamed, and of him only, and the stereotyped form of issue has been whether the words objected to were spoken or written of the pursuer. I think that no

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modern case was cited in which an action of defamation was sustained at the instance of anyone but the person defamed or his executor in his right, and many difficulties would doubtless be experienced if the principle were admitted that a man had a title to sue for injury done to himself and to his own feelings by the defamation of one whose character he was morally bound to maintain.

Unless the practice in regard to actions on account of death, which limits the right to raise such actions to persons within certain degrees of consangunity, were adopted in actions for defamation, it would not be easy to find grounds for determining who should have and who should not have a title to sue in such a case. If a father were defamed after his death, it might not be easy to distinguish between a wife or a son in regard to title to sue.

But it would be still more difficult to determine the cases in which the title of the representative of a deceased man should be sustained in such a case. For it could never be held that a wife or a son should be entitled to take up every action for defamation which might have been open to the deceased. A man when alive may raise an action of damages for defamation on very trivial grounds, which perhaps he may magnify by means of a skilful innuendo, and the law must, perhaps sometimes reluctantly, sustain them, but I do not think that his widow could be allowed after his death to say that she had suffered pain by such an attack on the character of her husband. I confess I do not see how any rules could be laid down defining what slanders could justify an action of this sort, and unless an action of this kind is supported by authority I should not favour the introduction of it.

Now, as I have said, practice is quite against it. There have been no such cases in the Books for seventy or eighty years. In fact the only decisions on which the pursuer could rely seem to be two cases— Walker v. Robertson, July 17, 1821, 2 Murray 508. These cases are not very easy to follow. Provost Walker raised an action against the Rev. Mr Robertson for slander spoken of him in the pulpit. Walker died pendente processu, and the report bears that after his death the Court sustained the title of his son to pursue (whether as executor or otherwise does not appear). The result was that in that action Walker, the son, had a verdict with one shilling of damages. That case does not bear materially on this question, because the action had been begun by the person defamed. But it appears that Walker, the son, raised a second action claiming solatium for the injury to his feelings caused by the attack on his father's character. The action was sustained after discussion, and in it the pursuer obtained a verdict for £100. The age of the son does not appear from the report, but mention is made of his curator. I cannot think that the course there followed would be followed now, and I suppose that now the second action would have been wholly disallowed. We, I think, would never allow an action by the person defamed, and another and separate action at the instance of his son, and I therefore do not feel bound to follow that case.

There is another somewhat curious case in the first volume of Murray, p. 196, December 20, 1816, Shearlock v. Beardsworth, in which an action by a colonel for damages for defamation of his regiment was sustained, but I doubt whether that case would be followed now.

It is proper to notice that in Borthwick on Libel it is laid down that an heir may prosecute for disparagement of his father's memory if injurious to the heir or his descendants. That dictum appears founded mainly on Walker v. Robertson.

The defenders quoted the cases of Rex v. Topham, 1791, 4 T.R. 126, where Topham was charged with libelling the deceased Earl Cowper, and Regina v. Ensor, February 1887, 3 Times L.R. 366, where the charge was for libelling one Bachelor after he was dead. These were both indictments, and therefore criminal cases. It appears to me that neither supports the case for the pursuer; in both it seems to have been held that mere vilifying of the deceased was not enough to support an indictment. There must be injury or intended injury to the state or to the posterity of the person defamed. These cases proceed upon distinctions in English law which we have not followed.

The defenders cited an interesting case — Luckumsey Rowji v. Hurbun Nursey, Indian Law Reports, 5 Bombay 580 (September 6, 1881), in which it was laid down distinctly that an action for defamation can be brought only by the person defamed.

In the case of Regina v. Ensor Sir James Stephen said—‘To speak broadly, to libel the dead is not an offence known to our law.’ In saying so he was speaking no doubt of English criminal law, and it might be difficult to transfer the dictum to an action for civil reparation such as this, and I do not think it necessary to affirm that there can never be an action for defamation of the dead. Circumstances might be imagined in which such an action might be sustained—for example, if it were necessary in order to prevent the propagation of a slander. But there are no such exceptional reasons for this case. About the half of history consists of what might be called defamation of the dead, and there may be many cases where vindication of the character of the dead might be a very sacred and urgent duty indeed. But such a duty could be performed without calling in the aid of courts of law, and the exercise of it might assume a somewhat questionable aspect if it were coupled with a conclusion for payment of money as a solatium for wounded feelings.

On the whole it seems to me that this action rests on no clear or sufficient principle, the practice of our Courts for very many years past lends no support to it, and that the only precedent which can be adduced is of early date and is of doubtful authority. I shall therefore sustain the defenders' first plea and assoilzie the defenders.”

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The pursuer reclaimed, and argued—The Lord Ordinary was with him on the following points:—(1) That the cases of Auld v. Shairp, supra, and Bern's Executor v. The Montrose Asylum, supra, did not apply; and (2) that the fact that an action was for solatium alone did not make the action invalid— Eisten v. North British Railway Co., supra; Evans v. Steel, July 15, 1885, 12 R. 1295, 22 S.L.R. 872, opinion of Lord President Inglis, 1299. She quite conceded that the right to demand reparation for an injury done to a dead man was limited to parent and child or husband and wife. The present action was good, and the widow had a title to sue. The legal basis of the action was fault on the part of the defenders. To say a man committed suicide or self-murder was defamatory, and it was a fault on the part of a newspaper to publish a defamatory statement. The pursuer offered to prove that she and her children had suffered on account of the defamation of their husband and father's memory. Fault and damage being both averred, the action was relevant—Borthwick on Libel, p. 169; Folkard's Law of Libel (6th ed.), p. 19; Watson v. Smeaton, February 1805, Hume's Dec. 624; Walker v. Robertson, July 17, 1821, 2 Murray 516; Taylor v. Swinton, not reported, referred to in Walker, supra; White v. Tyrrell, 1856, 5 Irish Com. Law Rep. (N.S.) 498. There was a completeanalogy between the present action and an action raised by a widow for solatium for injury to feelings caused by post-mortem exhumation of her husband's body— Pollok v. Workman, supra. The wrong in the one case was done to the memory of the deceased, and in the other to his physical remains. In many cases the suffering caused by the first was more serious than that caused by the second.

Argued for the defenders and respondents—As the law stood the only case in which a person could get damages for injuries done to a deceased was where the action was raised by the deceased's husband or wife, parent, or child, and where the deceased died from the physical effects of the injury. The ground of this was that the husband or wife, parent or child, had suffered patrimonial or pecuniary loss by the death of their relative, there being a reciprocal duty of support between them— Greenhorn v. Addie, supra; Bern's Executor v. Montrose Asylum, supra. There was no recent authority that an action could be raised by anyone for libel of the dead. The authorities were the other way— Regina v. Ensor, supra; Luckumsey Rowji v. Hurbun Nursey, supra. Of the cases quoted on the other side, Watson, supra, was superseded by Bern's Executor, supra, and Walker, supra by Darling v. Gray & Sons, supra.