Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) in the Sheriff Court at Kirkcaldy, Annie Herd Shepherd or Wallace claimed compensation as an individual and as tutor for her child Jessie Agnes Wallace Shepherd, or alternatively as tutor for the child, from the Fife Coal Company, Limited, in respect of the death of David Wallace, whom the claimant alleged to be her husband, and who was killed by an accident arising out of and in the course of his employment with the Fife Coal Company. The Sheriff—Substitute (SHENNAN) awarded compensation, and at the request of the Fife Coal Company stated a case for appeal. The case gave the following facts:—“(1) On 14th July 1908 the said David Wallace, then residing at 22 Main Street, Lum—pliinnans, met with an accident in the course of his employment as a miner with defenders in their No. 11 pit at Lumphin—nans, and sustained injuries in consequence

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of which he died on the same day. (2) In September 1907 the pursuer Annie Herd Shepherd, who was then only fifteen and three-quarter years old, left Kirkcaldy with David Wallace, and they went to Hamilton, where they cohabited as man and wife. They had previously courted at Lumphinnans and Kirkcaldy. Wallace asked pursuer to go with him as his wife. About a month after going to Hamilton he gave pursuer a wedding ring, which she afterwards wore. Shortly thereafter they went to Blantyre, where they took a house and furnished it. All the time they were at Hamilton and Blantyre they behaved themselves as married persons. They held themselves out as married, and they were so regarded by all who came in contact with them. Wallace gave pursuer his wages, and she kept house for him; and they regarded each other as husband and wife. Wallace's mother visited them in Blantyre, and she states that she never would have done so had she not believed they were married. They returned to Lumphinnans in June 1908, and lived with Wallace's sister Mrs Innes, who states that she would not have admitted them to her house unless she believed that they were married. In Lumphinnans, Wallace and pursuer held themselves out as married persons, and they were so regarded by their neighbours. There is absolutely no evidence that either Wallace or the pursuer, or any one of their friends or the public had any doubt that they were married persons. Pursuer's father was dead, and as she had not had a happy home she did not keep up intercourse with her mother and brother. (3) Before the pursuer and deceased left Kirkcaldy there was some talk of having the marriage ceremony performed, and this was subsequently talked of between them, but Wallace wished to postpone it until he should be in better circumstances. Wallace had not been previously married. (4) Subsequent to Wallace's death a female child was born of the intercourse between him and pursuer on 26th July 1908. The child is still alive. Pursuer registered it as Jessie Agnes Wallace Shepherd, and described it as illegitimate, stating that she thought ‘they could do something’ to her if she registered it as legitimate, she not having been regularly married and the father being dead. She had no one to advise her at the time.… Evidence was given at the proof by relatives of the deceased David Wallace, but neither pursuer's mother nor her brother nor any relative of her own was examined. Pursuer deponed that she did not know the address of either her mother or her brother.”

On these facts the Sheriff—Substitute found that the claimant was married to the deceased David Wallace, and that Jessie Agnes Wallace Shepherd was his legitimate child; that the claimant and her child were wholly dependent on the earnings of David Wallace at the time, of his death, and he assessed the compensation at £280, 16s.

The questions of law for the opinion of the Court were:—“1. Was it competent for the Sheriff-Substitute in the present process to determine whether or not the pursuer Annie Herd Shepherd or Wallace was the widow of the said David Wallace? 2. Assuming question 1 to be answered in the affirmative, do the facts proved warrant the finding that the said Annie Herd Shepherd or Wallace was the widow of the said David Wallace, and that the said Jessie Agnes Wallace Shepherd was his child? 3. Was the said Jessie Agnes Wallace Shepherd wholly or partially dependent upon the said deceased David Wallace in the sense of the Workmen's Compensation Act 1906?”

Argued for the appellants—(1) It was not competent for the Sheriff to decide in this process a question of status as was involved here. In M'Donald v. M'Kenzie, February 6, 1891, 18 R. 502, 28 S.L.R. 404, where the Sheriff did decide such a question, he was not final on the facts. The case of Johnstone v. Spencer & Company, 1908 S.C. 1015, 45 S.L.R. 802, involved only the paternity of an illegitimate child, and no question of status. The Sheriff would be entitled to decide that the claimant and the deceased were married only if a certificate or a decree of declarator were produced. (2) In any event, the facts did not warrant the conclusion that the parties were married. That question was one of law. Cohabitation, habit and repute, did not constitute marriage, but might be founded on as proof that consent had been interchanged and marriage thereby constituted—Fraser, Husband and Wife, 2nd ed., i, 391; Lapsley v. Grierson, November 19, 1845, 8 D. 34, per Lord Moncreiff at p. 61. The cohabitation must be for a considerable time—Stair, iv, 45, 19; Fraser, op. cit., i, 400; and there was no case in which cohabitation for a period of only ten months had been held sufficient. Further, there were facts proved which negatived the view that consent had been interchanged. A ceremony was put off till the deceased should be in better circumstances. The claimant registered the child as illegitimate. The habit and repute was of no avail if the conduct of the parties themselves was inconsistent with marriage— Lapsley v. Grierson, cit., per Lord Justice-Clerk Hope at p. 47; [ Glass v. Glass's Trustees, December 20, 1907, 15 S.L.T. 716, was also referred to.] (3) Counsel also argued that there was not sufficient evidence that the deceased was the father of the child, and that in any event it was not wholly dependent on him, and cited Schofield v. Orrell Colliery Company, Limited, 1909, 1 K.B. 178, and in H.L. The Times, 15th May 1909.

Argued for the respondent—In deciding the question whether the claimant was a dependant in the sense of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), section 13, the Sheriff was not only entitled but bound to decide whether the claimant was married to the deceased—Workmen's Compensation Act 1906, section 1 (3), Schedule 1 (8); Johnstone v. Spencer & Company, cit. (2) The question whether the claimant was a dependant was a question of fact— Bowhill Colliery Company, Limited v. Smith, 1909 S.C. 252, 46 S.L.R. 250.

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In any event, the inference of marriage was warranted by the facts. The absence of a ceremony and the talk of having one did not negative the view that the parties meant marriage. The registration of the child as illegitimate was explained by the claimant in a way perfectly consistent with the idea of marriage. The other facts clearly indicated marriage, and it had never been laid down that any stated period of cohabitation was necessary. If the marriage was proved, it dated back to the commencement of the cohabitation— Campbell v. Campbell, July 16, 1867, 5 Macph. (H.L.) 115, 4 S.L.R. 214.