Scottish Court of Session Decisions

Mrs Agnes Douglas or Greig, pursuer, brought an action against the Trustees of the Widows' Fund of the Company of Merchants of the City of Edinburgh, defenders, (1) for declarator that her husband David Greig junior, a contributor to the defenders' Widows' Fund, “must be presumed to have died prior to 31st December 1900, that he must be held to have died on that date, and that the pursuer, his widow, is entitled to an annuity out of the said Fund of £40 sterling, and (2) for decree ordaining the defenders to make payment to the pursuer of the annuity of £40 as from Whitsunday 1901.” The pursuer's averments and the pleas-in-law of the parties are set forth in the previous report.

On 8th November 1918 the Lord Ordinary ( Blackburn) dismissed the action as irrelevant. His Lordship's opinion is reported ante ut supra. The pursuer reclaimed, and after hearing parties the Court on 8th March 1919 recalled the Lord Ordinary's interlocutor and allowed a proof before answer.

The following narrative of the facts and of the import of the evidence is taken from the opinion infra of the Lord Justice-Clerk:—“The question in this case is whether David Greig is dead or alive, and if dead, when he must be held to have died. The issue is one of fact. David Greig was born in 1857, and if still alive would now be about sixty-three. He was born in a respectable position, and ultimately became a partner with his father in his business as a builder. He married the pursuer in 1879 and there were four children of the marriage. About 1893 Greig gave way to drink, and this led to his ruin. His father dissolved the partnership, and the son soon thereafter executed a trust deed and was sequestrated. He was convicted more than once of assaulting his wife and of police offences. He had delirium tremens on two occasions, for I cannot accept the Lord Ordinary's view when he speaks of ‘alleged’ attacks of delirium tremens, and suggests that the evidence as to this has been exaggerated. I think they are sufficiently proved, and I cannot find any appearance of exaggeration. I think it is also proved that David Greig's heart was affected. His mother died of consumption. For while the Lord Ordinary says that he does not think there is any evidence ‘to support the statement that the pursuer's husband's mother had died at the age of fifty of consumption,’ there is, it seems to me, certainly some evidence, and there was no cross-examination on this point. Greig seems to have lost caste completely in Edinburgh,

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and ultimately left that city about 1896 or 1897, when apparently he went to the north of England. In 1896 the pursuer obtained a decree of judicial separation against him with a decree for aliment. After 1896 Greig seems to have maintained himself in England or elsewhere out of Edinburgh somewhat precariously for several years, paying occasional brief visits to Edinburgh to see his wife and children, to whom he seems to have been genuinely attached when he was sober, being then apparently kind and affectionate. While on these visits to Edinburgh he was in want of food, clothing, and money, all of which he got from his wife and probably also from others. He once wrote to his wife from Liverpool in 1896. The letter was a very penitent one, but showed that he was still in dire straits. The Lord Ordinary says that the pursuer ‘admits’ that she never answered this letter. What she does say is ‘I don't remember whether I sent any reply,’ and no wonder, for she was speaking of a letter received so long ago as 1896. Apart from this letter there is nothing but his own statements to show where he went to when he left Edinburgh. He was last heard of about 1900 or 1901. His brother says of him that his constitution before he left Edinburgh seemed to have been undermined. His wife says she thought he was dead. She thought so after two years, because he had always been coming back to see ‘us,’ and she does not know anybody who knows anything about him. William Mackay, who was in the employment of David Greig's father for forty-five or fifty years and who knew David well, last saw him ‘eighteen or twenty years ago if not more,’ and says that he and the other men in his father's employment ‘sometimes discussed what had become of him. We thought he was dead. The last time I saw him I never thought he would live two years. Twenty years ago I thought he was dying on his feet; he was just like a dying man.’ The Lord Ordinary disregards the evidence as to belief of Greig being dead. I cannot agree with this view. The authorities seem to establish that it is legitimate evidence and may be important. About 1896, on one of his visits to Edinburgh from Liverpool, he told an acquaintance John Adams, at whose house he got a wash-up and a breakfast, and whom he asked to take him to the House of Refuge, that drink had got so much hold on him that he could not do without it. Adams took him to the House of Refuge, and he was there for about a month—December 1896 and January 1897. Adams thought that if he stopped drink and kept steady he would be all right. There is no evidence, however, of any such reform. If he had reformed I think a reasonable inference is that he would have returned to see his wife and children. He did not do so, and made no communication to them or to anyone else in Edinburgh after 1900. He has been advertised for both in England and Scotland, and I think reasonable efforts have been made to find him, or any news of him, but without result. His law agent Mr Buohan has heard nothing of him since 1897, and formed the impression that he had died. Dr Chalmers Watson, examined as an expert regarding alcoholic patients, says he would regard him as an habitual drunkard given to chronic intemperance, and estimates his prospects of life after about 1900 as not exceeding six to ten years at the outside. He says he has never known a man of so pronounced habits as David Greig living longer than six or ten years. Dr James, the only witness examined for the defenders, says that ‘to say certainly he is dead is contrary to medical experience,’ and that may be assented to, but I do not think that is an accurate way of stating the problem. In cross-examination Dr James says of a man of Greig's description—‘What I would say is that you would expect none would recover, but you found here and there wonderful recoveries, and the men live to an old age.’”

It was also proved that Greig went to Australia in 1896 at the cost of his father, but returned within a few months.

On 10th December 1919 the Lord Ordinary ( Blackburn) assoilzied the defenders.

Opinion.—[ After dealing with the facts his Lordship proceeded]—“A number of most respectable witnesses, friends of the pursuer and her husband, entered the box and expressed their belief that her husband must be dead. This was pressed upon me by pursuer's counsel as evidence to rebut the presumption of life. In nearly every case the belief seemed to be founded on the fact that the witness had heard nothing of the husband for nearly twenty years. In so far as it was based on facts connected with the man's own history, I think I must draw my conclusions from the facts themselves, and not from the opinions of others. With regard to their evidence as to the missing man's loss of respectability after his sequestration no one suggested that he had led ‘a vagrant life,’ as is averred on record, or that he had reached the depths of the ‘Submerged Tenth.’ To cease to be an employer of labour and to become a working man, especially one addicted to drink, may well be regarded as a fall in the social scale, and I do not think that most of the witnesses meant more than this. But apart from the fact that he was addicted to drink I do not see that such a fall need necessarily prejudice the presumption of life.

Nor indeed does it appear to me that apart from this qualification as to his drinking habits, there is anything proved in connection with his personal history to suggest that it is not probable that he may be still alive. His age would be only sixty-one. His health and medical history are irreproachable. His character was good—hard working and industrious—and there was no particular risk in the circumstances under which he last disappeared. He was returning to Hornsea, or wherever it was that he was employed, where he seems to have been supporting himself for three or four years.

As to his drinking habits, there is no doubt that for a period of three years, between 1893 and 1896, they were excessive,

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and to some extent must have injured his prospects of life. But after his second conviction in November 1896 there is no evidence of any further outbreak of violence, and this suggests some moderation in his habits and possibly an attempt to reform. He must at all events have gained some control over himself between 1897 and his disappearance, as he managed to save money to come to Edinburgh to visit his family. That he had not completely mastered himself is clear from his conviction in June 1898, but the reception he got from his family on the occasions of his visits to Edinburgh was calculated to have had a bad and depressing effect upon him. I think the oral evidence and his letter from Liverpool show that he was fond of his family and very much ashamed of his habits, and if he was making an effort to reform himself while at Hornsea and hoping for a reconciliation he must have felt their reception of him acutely.

I do not think that the evidence with regard to his drinking habits removes ‘any reasonable doubt’ of his death, which in the case of Bruce v. Smith ( 10 Macph. at 133) was said by Lord Deas to be always the question in this class of case. Much depends on the extent of his drinking subsequent to his disappearance, and I think the evidence inclines to the view that he was gradually pulling up. Dr James, who was examined for the defenders, says ‘that to say certainly he is dead is contrary to medical experience.’ This witness also speaks to his own experience of cases where deterioration has gone far and yet complete recovery has been made, an experience which I think has been shared by most people. On the other hand, Dr Chalmers Watson gave evidence that the man could not have lived for more than six years after his conviction in 1896. I was not impressed by his evidence, which proceeded on many assumptions as to the man's history which do not appear to me to be established by the evidence in the case.

There remains to consider whether any inference can be drawn from the facts immediately preceding the disappearance to suggest that it was not intentional but involuntary. This is evidence to which the Court has always attached great importance. Where—as in the case of Rhind, 5 R. 527—a sailor in hospital in Jamaica wrote to his sister that if he lived and got out of hospital he would return to England where a legacy from an uncle was awaiting him, and nothing more was heard of him except that shortly afterwards he had been discharged from hospital, the presumption is strong that the disappearance of the man was not intentional. But in the present case there is no evidence to lead to any direct inference one way or the other. There was certainly no pecuniary reason to induce the pursuer's husband to return home, as there was a decree for aliment and expenses standing against him. His affection for his family might lead to a presumption that his disappearance was involuntary but for the cold reception he had met with on his most recent visits. It is not impossible that he had come to the conclusion that a reconciliation with them was hopeless, and that he quite deliberately made up his mind to sever all association with them. If so, he may by now have formed other ties, which would account for his continued silence. I do not feel that I can with confidence draw any inference as to the cause of his disappearance from the circumstances under which he disappeared.

I was referred to numerous reported cases in the course of the hearing after the proof. In nearly all of them the missing man when last heard of was either abroad or was starting on a voyage for a foreign country. I have only come across two cases which deal with the disappearance of a man in this country. In Bruce v. Robson, 1834, 12 Sh. 486, the commander of a trading vessel had disappeared at Portsmouth in January 1795, four months before his father's death. There was nothing to account for his disappearance, but although nothing had been heard of him for thirty-nine years, the Court refused to presume that he had predeceased his father. In Milne v. Wills, 1868, 40 Sc. Jur. 221, where a man had disappeared in this country two years before under circumstances clearly pointing to suicide, the Court refused to serve his heir until caution was found to repeat in case of reappearance.

But in another much more important respect this case differs from all the cases reported in the books. It is apparently the first time that an endeavour has been made to elide the presumption of life for the purpose of enforcing against a third party a contract conditional upon the missing man's life. All the reported cases arise out of claims of succession to estate to which the missing man if alive at a certain date would have been entitled. In a few cases where the Court has not been satisfied that the evidence is quite sufficient to elide the presumption, authority has been given to the missing man's heir to draw the interest of the fund without finding caution ( Campbell, 3 Sh. 145, and 12 Sh. 382) or to take possession of the fee on finding caution— Fettes v. Gordon, 4 Sh. 150; Garland v. Stewart, 4 D. 1. But in all cases dealing with succession, whether the decision of the Court be safeguarded by the finding of caution or not, the ultimate loss, if any, in the event of the reappearance of the missing man falls upon the man himself, who is the person primarily responsible for the position which has been created. In a case arising upon a contract with a third party the loss, if any, falls elsewhere. Now although the present case only relates to the payment of a widow's annuity, its decision will, I think, decide the question of liability under two policies of insurance on the missing man's life, one of which is fully paid, while the other is still being kept up by payment of premiums. In all claims under insurance policies, whether for payment of a widow's annuity or of a capital sum, the onus of proving death rests on the claimant, while the ultimate loss, if any, in the event of the reputed dead person's reappearance would fall not on him

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but on the insurers. For these reasons I think, to quote more fully the passage from Lord President Inglis' opinion in Williamson, 14 R. 226, which I referred to in my previous note, ‘such a case as this does not rest on a mere balancing of probabilities. We must be satisfied that he died.’ It may be that in cases of succession it is more accurate to say—‘The question really always is whether any reasonable doubt exists of the death,’ as stated by Lord Deas in Bruce v. Smith, 10 Macph. 133, but I do not think that evidence leading to such a conclusion would be sufficient in a case of contract. In my judgment the evidence in this case falls short of what is said to be necessary by both these learned Judges, and accordingly I shall assoilzie the defenders from the conclusions of the action.”

The pursuer reclaimed, and argued—The evidence warranted the presumption that the pursuer's husband was dead, and his death should be presumed to have taken place as at 31st December 1900. The onus of proving death was not now so heavy as formerly, because of the greatly increased facilities of communication—Dickson's Law of Evidence (3rd ed.), section 128. The following authorities were referred to— Greig v. Edinburgh Merchant Company's Widows' Fund Trustees, 1919, 56 S.L.R. 292; Rhind's Trustees v. Bell, 1878, 5 R. 527, per Lord Ordinary (Curriehill) at 529, 15 S.L.R. 271, at 272; Bruce v. Smith, 1871, 10 Macph. 130, per Lord Ordinary (Mackenzie) at p. 132, 9 S.L.R. 102; Sands v. Her Tenants, 1678, M. 12,645; French v. Earl of Wemyss, 1667, M. 12,644; Williams v. Scottish Widows' Fund Life Assurance Society, 1888, 4 T.L.R. 489; Doyle v. City of Glasgow Life Assurance Company, 1884, 53 L. J., Ch. Div. 527; Evanturel v. Evanturel, 1874, L.R., 6 P.C. 1, per Sir James W. Colville at p. 29; Beasney's Trustees in re, 1869, L.R., 7 Eq. 498, per Malins, V.-C., at 500; Stair's Institutions, book iv, tit. 45, sec. 17, Presumption 19th. [The Lord Justice-Clerk referred to Dickson's Law of Evidence (3rd ed.), sec. 116].

Argued for the respondents—The evidence did not warrant the presumption that the pursuer's husband was dead. The authorities stated that the presumption of life extended to one hundred years, with the exception of Bankton, who put it at eighty years— Bruce v. Smith ( cit.), per Lord Deas at 10 Macph. 133. It was the presumption of life which permitted decrees of divorce to be pronounced in many cases of desertion where the husband had disappeared, because were it not presumed that he was alive a divorce could not be granted. In the present case there was no evidence at all regarding the pursuer's husband after his disappearance in 1901, and the pursuer's case depended entirely on inferences and speculations flowing from facts as to his life and conduct prior to 1898. There was no case where mere absence and drink had been held sufficient to rebut the presumption of life, and in every case where the presumption had been overcome there had been proof as to where the missing person went to. The absence of correspondence in this case was not significant, because there had been no correspondence prior to the missing man's disappearance— M'Lay v. Borland, 1876, 3 R. 1124, per Lord Deas at 1128. In the present case it was sought by presuming death to obtain money due ex contractu. Such cases were different from those where it was sought by presuming death to obtain a succession. In any event the pursuer's averments were not relevant to support any other date than that set forth in the summons. The following authorities were referred to:— Williamson v. Williamson, 1886, 14 R. 226, 24 S.L.R. 170, per Lord President (Inglis) at 14 R. 228, 24 S.L.R. 171, Lord Shand at 14 R. 229, 24 S.L.R. 172, and Lord Adam at 14 R. 230, 24 S.L.R. 172; Rhind's Trustees v. Bell; Barstow (Maltman's Factor) v. Cook, 1874, 11 S.L.R. 363; Barstow v. Cook, 1862, 24 D. 790; Fairholme v. Fairholme's Trustees, 1858, 20 D. 813; Garland v. Stewart, 1841, 4 D. 1, where consignation ordered; Sands v. Her Tenants.