United Kingdom House of Lords Decisions

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Cite as: [1821] UKHL 1_Shaw_20

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SCOTTISH_HoL_JURY_COURT

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(1821) 1 Shaw 20

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

1 st Division.

No. 6.

Mrs. Linwood and Children, Appellants.—Baird—Fullerton

v.

V. Hathorn, Respondent.—Romilly—A. Bell

Mar. 19. 1821.

Lord Craigie.

Subject_Reparation — Assythment. —

A landed proprietor residing at a distance from his estate, held not liable in assythment to the widow and children of a person who was killed by the fall of a tree growing on his property, and which his servants were cutting without his orders.

On the 27th of November 1812, while John Linwood was riding along the highway from the Mull of Galloway to Stranraer in company with several other persons, he was killed by the fall of a tree. This tree was upon the estate of Gartland, belonging to Mr. Vans Hathorn, writer to the signet, who resided in Edinburgh. The road ran from north to south, and the tree was on the east side of it, with an inclination in the same direction. At the time when Linwood and his party were approaching on horseback, (which was about mid-day,) Matthew Graham was employed in cutting the tree, under the inspection of one Mackie, who was the servant of Mr. Hathorn. He had cut it in part with a hatchet on the east side, and when the party were passing, he was occupied in cutting it on the west side. At this moment, the tree, by the effect of the wind, which was blowing from the east, fell towards the west, across the road, upon Mr. Linwood, and bruised him so, that he expired within an hour thereafter. No precaution had been taken by ropes or otherwise to make the tree fall in any particular direction; but the operation was perceptible to all who were passing along the road, and it had been expected from the inclination of the tree, that it would have fallen towards the east, or from the road. Graham was indicted at the Ayr Circuit for culpable homicide, but was acquitted in consequence of a verdict of not guilty. Thereafter the widow of Linwood and his children brought an action against Mackie, Graham, and certain other persons alleged to have been directly concerned in

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the cutting of the tree, and also against Mr. Hathorn, the proprietor of the estate, as responsible for these persons. Appearance was made for all the parties, but the litigation took place chiefly with Mr. Hathorn. In defence he stated, that although Mackie was his servant, yet Graham was not; that he had given no orders to cut the tree, and that Linwood's death had been occasioned by a casus fortuitus, for which no person could be responsible; and he pleaded, that even if it were established that any negligence was imputable to the persons who were cutting the tree, no responsibility could attach to him. Lord Craigie, after allowing a proof, and issuing a note in which he expressed an opinion that negligence was imputable, and that Mr. Hathorn was liable, reported the case on informations. In support of their claim against Mr. Hathorn, Mrs. Linwood and her children pleaded, that the death of Mr. Linwood had been occasioned in consequence of no precautions having been taken to prevent the tree from falling towards the road, and no notice being given that the operation was going on: That when a proprietor employs other persons under him to do his work, he is bound to select those who will do it properly, and use every possible precaution to prevent injury to third parties: That this is an implied contract, under which every man acts and possesses, and that his obligation to the public is not merely that he personally shall not commit injury, but that his acts of administration shall be so exercised, that injury shall not be sustained. To this it was answered, 1. That noblame or negligence was imputable to the persons cutting the tree, and consequently Mr. Hathorn could not be responsible for what was a pure accident; and, 2. That even supposing negligence were established, still he could not be made liable, because he neither knew of, nor authorized the cutting of this particular tree, nor of any other tree on his property; and if he had known of any design to do so, he would not have allowed it; that he gave no general discretionary permission or authority to cut down trees in his absence; and that he could not be made liable for the delict of his servants, by which the misfortune had. been occasioned. The Court, by a majority, on the 19th of November 1816 and 14th of May 1817, assoilzied all the defenders. ^* Mrs. Linwood and her children having thereupon entered an appeal on the above grounds, the House of Lords “Ordered and adjudged that the appeal be dismissed, and the interlocutors complained of affirmed.”

_________________ Footnote _________________

* See Fac. Coll. Vol. 1815—1819, No. 115.—Lords Justice-Clerk, Glenlee, and Robertson concurred in the judgment; Lords Bannatyne and Craigie dissented.

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Appellant's Authorities.—9. Dig. 3.1; 1. Blackstone, c. 14. ad fin.; 1669, c. 16; Innes, Feb. 6. 1798, (13189); Black, Feb. 9. 1804, (13905); Brown. Feb. 26 1813, (F. C.); L. Keith, June 10. 1812, (F. C.); M'Manus, Nov. 26. 1800, (East's Hep.)
Respondent's Authorities.—9. Dig. 2. 30; 1. Bank. 2.30; 1. St. 9. 5.

Solicitors: J. Chalmer,— Spottiswoode and Robertson,—Solicitors.

( Ap. Ca. No. 13.)

1821