Scottish Court of Session Decisions

Lord President—In this case the father of a child who was killed by being run over by a waggon, intimated a claim of damages against the carting contractor who owned the horses and employed the driver. The contractor maintained that he was not liable, on the ground that the waggon, which was one of peculiar construction, belonged to another party, who had full control over the driver.

The father applied to that other party, who denied liability, alleging that he had no control over the driver. The father called both parties as defenders, but in the conclusions of the action asked decree against them conjunctly and severally, or severally. Both parties denied that there had been any negligence in fact. A trial ensued, in which a jury found that there had been negligence in fact on the part of the driver, and that he was in fact the servant of the carting contractor.

An application was made for a new trial. Counsel for both the defenders admitted that there had been negligence in fact, but they contended as between each other as to whose servant the driver actually was. Your Lordships thought the jury had come to a right conclusion, and refused to disturb their verdict. The effect of the verdict was to find the carting contractor liable and to assoilzie the other defender. The pursuer is clearly entitled to his expenses against the unsuccessful defender, and the question therefore is, whether the successful defender is to get his expenses from the pursuer or from the unsuccessful defender.

The question on which the rule in such cases depends is this—Whose fault was it that the additional defender was brought into Court? Of course, a pursuer who has a right of action is not entitled to bring all the world into Court, but there may be cases in which a pursuer is forced to call more than one party, owing to the action of another defender. The cases of Mackintosh v.Galbraith & Arthur, 3 F. 66, and Thomson v. Kerr, 3 F. 355, which were quoted to us, afford illustrations of that. For my own part I rather agree with the minority in the case of Mackintosh, but such cases must be determined on their own facts, and this seems very clearly a case in which the successful defender would not have been called into Court but for the action of the other defender, who maintained that the accident was due to the successful defender's fault, and who said so on a question of fact peculiarly within his own province and not within that of the pursuer—a question which no amount of inquiry on the pursuer's part might have been able to solve. This seems clearly a case for finding the successful defender entitled to expenses as against the other defender and not against the pursuer.

Lord M'Laren— Prima facie it is for a pursuer to find out who is responsible to him for a wrong which he considers he has sustained, and in general if he calls as a defender a party who is innocent of the alleged wrong he will be liable in expenses. But this rule is subject to exceptions, especially where the claim is made in the first instance against the party who is truly responsible, and it is at his request and instance that another party is called into the field. Here the question is who is responsible for bringing the successful defender into Court. In this case I have no doubt that it was the unsuccessful defender, who, as we see, from the beginning sought to shift the burden from his own shoulders and put it on the tramway contractor. I therefore concur with your Lordship that the unsuccessful defender must pay the costs of the successful defender.

Lord Kinnear—I agree. It is clear that the unsuccessful defenders were responsible for bringing the successful defender into Court. Mr Guthrie has argued that it lies with the pursuer to make inquiries and find out who is liable, and there can be no question that as a general rule that is the pursuer's duty before he brings anybody into Court. But the question is not whether the pursuer would be liable in expenses to the successful defenders with or without relief against the defenders who have failed, but whether the latter, against whom the claim is actually made, can throw upon the pursuer the consequences of their own action. They caused proceedings to be taken against a person who had no responsibility in the matter, by their allegation that he was in fact the responsible employer of a man who was really their own servant. That depended upon facts which were within their own knowledge, and of which the pursuer knew nothing, and they can hardlye heard now to complain that he did not find out before the trial that their statement was without foundation.

Page: 648↓