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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Innes v. Ayr Harbour Trustees and Another [1902] ScotLR 40_24 (21 October 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/40SLR0024.html Cite as: [1902] SLR 40_24, [1902] ScotLR 40_24 |
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In an action of damages against A and B at the instance of the mother of a man who was killed in an accident for which, as she alleged, they were responsible, the conclusions of the action were for payment of £500 from the defenders jointly and severally or severally. The issue put the question whether the deceased met his death through the fault of the defenders or one or other and which of them, and the schedule was simply “damages claimed £500.” The jury found for the pursuer against both defenders, and assessed the damages at £110. The verdict then proceeded as follows:—“And they apportion the said sum, if they can competently do so, as follows: two-thirds thereof against” A, “and one-third thereof against” B. On a motion to apply the verdict, held that in view of the form of the conclusions of the action and of the issue the jury had no power to apportion the damages, but that their attempt to do so, in the words quoted above, did not invalidate the verdict, and verdict applied by decerning against both defenders jointly and severally for payment of £110.
The widow of the same pursuer brought an action against A, concluding for £1000 damages, and a supplementary action against B, also concluding for £1000. These actions were conjoined and tried under one issue, which put to the jury the question whether the deceased met his death through the fault of the defender or one or other and which of them. In the schedule of damages £500 was claimed from A and £500 from B. The jury found for the pursuer against both defenders, and added a clause of apportionment in the same terms as that quoted above. On a motion to apply this verdict, held that under the terms of this issue it was competent for the jury to apportion the damages, and verdict applied accordingly.
Duncan M'Innes, labourer, Ayr, was killed through the fall of a derrick at Ayr Harbour.
Mrs Helen Ford or M'Innes, his widow, brought an action of damages against the Home Trade Steam Carrying Company, Limited, concluding for £1000 damages. She subsequently brought a supplementary action against the Ayr Harbour Trustees. The conclusions of this latter action were that it should be conjoined with the action at her instance against the Home Trade Steam Carrying Company, and whether it should be conjoined or not that the defenders should be ordained to make payment to the pursuer of the sum of £1000. On the death of Mrs Helen M'Innes her executrix Miss Ford was sisted as pursuer in these actions.
Mrs Sarah M'Phail or M'Innes, the mother of Duncan M'Innes, also brought an action directed against the Home Trade Carrying Company and the Ayr Harbour Trustees. The conclusions of the action were that the defenders should be ordained “jointly and severally or severally, or otherwise as to our said Lords shall seem just, to make payment to the pursuer of the sum of £500.”
On 21st January 1902 the Lord Ordinary ( Kincairney) conjoined all these actions.
The issue approved of for the trial of the actions at the instance of Miss Ford (Mrs M'Innes' executrix) was in the following
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terms:—“Whether … the said deceased Duncan M'Innes met with his death through the fault of the defenders or one or other and which of them, to the loss, injury, and damage of the pursuer the said Helen Ford as executrix foresaid?” Damages claimed—From the Home Trade Steam Carrying Company, Limited, £500; and from the Trustees of the Ayr Harbour, £500. The issue in the action at the instance of Mrs Sarah M'Phail or M'Innes was, mutatis mutandis, in the same terms, but the schedule was simply “damages claimed, £500.”
The actions were tried on March 25th and 26th 1902 before Lord Pearson and a jury.
The verdicts returned were:—In the actions at the instance of Miss Ford (Mrs M'Innes' executrix) the jury “Find for the pursuer against both defenders, and assess the damages at £225 sterling, and they apportion the said sum, if they can competently do so, as follows, viz., two-thirds thereof against the Trustees of the Ayr Harbour, and one-third thereof against the Home Trade Steam Carrying Company, Limited.”
The verdict in the action at the instance of Mrs Sarah M'Phail or M'Innes was in the same terms, with the exception that the damages were assessed at £110.
After a motion for a rule on the ground that the verdict was contrary to evidence had been refused, the pursuers moved the Court to apply the verdict.
Counsel for the defenders argued that the verdict was incompetent and invalid. A jury had no power to apportion damages— Boettcher v. Carron Company, January 17, 1861, 23 D. 322. If they had known this their verdict might have been different—they might have let the Home Carrying Company off altogether.
But then the question comes to be, whether upon this issue the apportionment by the jury is not mere surplusage and cannot affect the first part of the verdict where, in so many words, they fix the damages at £110. I think nobody can doubt that if the verdict had stopped there it would have been a perfectly good verdict in the case; and does it make any difference that the jury has expressed an opinion, if they might competently do so—which they cannot—that it should be divided according to their apportionment? I think that any apportionment was beyond their power; but I do not think that that invalidates the first portion of the verdict, where they fix the amount of damages to which pursuer is entitled. Therefore so far as this action is concerned I think the pursuer is entitled to have the verdict applied.
But the other case arises in this way. It seems that this action was originally laid against the Home Trade Carrying Company only, and the conclusion in that action was that the Company should pay the sum of £1000. But it would appear that, from the nature of the defence stated in that action the pursuers saw the propriety of bringing into Court also the Ayr Harbour Trustees, and accordingly raised a supplementary action in which they concluded to have the first action, which was pending in Court, conjoined with the second action, and “whether the said action is conjoined or not the said trustees of Ayr Harbour ought to be decerned and ordained to make payment of £1000.”
There were therefore two actions brought by the pursuer in this case—the first against the Home Trade Steam Carrying Company, and the second against the Ayr Harbour Trustees. Now, as I understand, these actions were conjoined, and the issue which was sent to the jury was this—whether on the same spot the pursuer met his death through the fault of the defenders or one or other and which of them, to the loss, injury, and damage of the pursuer. Then the schedule of damages is put in this form—From the Home Trade Steam Carrying Company £500, and from the Trustees of Ayr Harbour £500. It appears to me that under that issue—whether it might competently be objected to or not I do not know, and it is not necessary to consider—it is quite clear that the jury are asked to assess how much the defenders the Home Trade Steam Carrying Company were to pay, and how much the Trustees of Ayr Harbour were to pay. And what the jury have said is just exactly in terms of the
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In the other claim at the instance of the widow of the deceased there were two conclusions, but in each of them a sum of money is claimed against each party alone, and I think no other issue could very well be taken after the actions were conjoined than an issue in which separate sums were claimed from each party, there being no conclusion for joint liability. The proper way of working that out was to have a schedule of damages with separate claims against several defenders. In that case, accordingly, I think the jury were quite right in distinguishing the liability of each of the parties. They were invited to do so by the form of the issue and I doubt whether it would have been a good verdict unless separate sums were awarded. I am quite satisfied that the verdict is good as it stands and that it ought to be applied.
The Court pronounced the following interlocutor:—
“The Lords, with the addition of Lord Pearson, who presided at the trial, Refuse the motion for a rule to show cause why the verdict should not be set aside and a new trial granted: And having heard counsel for the parties (1) in the action at the instance of Mrs Sarah M'Phail or M'Innes, apply the verdict found by the jury on the issue in this cause, and in respect thereof decern against both sets of defenders jointly and severally for payment to the pursuers of the sum of £110 sterling; … and (2) in the action at the instance of Jessie Ford, Helen M'Innes' executrix, apply the verdict found by the jury on the issue in this cause, and in respect thereof decern against the defenders the Trustees of the Ayr Harbour for payment to the pursuer of the sum of £150 sterling, being two-thirds of the sum of £225, and also decern against the defenders the Home Trade Steam Carrying Company, Limited, for payment to the pursuer of the sum of £75 sterling, being one-third of the said sum of £225.”
Counsel for the Pursuer— Salvesen, K.C.— A. S. D. Thomson. Agents— Whigham & M'Leod, S.S.C.
Counsel for the Defenders, the Ayr Harbour Trustees— Hunter. Agents— Gordon, Falconer, & Fairweather, W.S.
Counsel for the Defenders, the Home Trade Steam Carrying Company, Limited— Guthrie, K.C.— Spens. Agents— Boyd, Jameson, & Young, W.S.