Scottish Court of Session Decisions

On 11th September 1891 Helen Brown or Fowlis, the widow of David Fowlis, lumper, Grangemouth, and their six children, raised an action against the Wick and Pulteneytown Steam Shipping Company, Limited, concluding for damages to them on account of the death of her husband and their father, who was killed while assisting to unload the said Shipping Company's steamer “St Fergus” at Grangemouth on the morning of the 23rd April 1891. His death was caused by his having been hit upon the head by a

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heel block or pulley, which formed part of the tackle of a derrick crane connected with the ship, in consequence of the hook of the heel block suddenly giving way. The fault alleged was that the tackle used, and in particular the block and hook, were defective, and insufficient for the purpose to which they were put.

In their defences the Shipping Company alleged that if anyone was to blame for the accident, it was the stevedore George Palmer, who must in that case have handled the crane and tackle in a negligent manner.

On seeing the nature of the defence Mrs Fowlis and her children raised a supplementary action against George Palmer, the stevedore. On 24th November 1891 the two actions were conjoined, and following the course adopted in the case of Dacres, 27 S.L.R. 230, an issue was granted against each of the defenders, the issues being in the following terms:—“1. Whether on or about 23rd April 1891, at Grangemouth harbour, the deceased David Fowlis, the husband of the pursuer Helen Brown or Fowlis, and father of the other pursuers, was struck on the head by an iron block or pulley, and fatally injured, through the fault of the defenders, the Wick and Pulteneytown Steam Shipping Company, Limited, to the loss, injury, and damage of the pursuers? 2. Whether on or about 23rd April 1891, at Grangemouth harbour, the deceased David Fowlis, the husband of the pursuer Helen Brown or Fowlis, and father of the other pursuers, was struck on the head by an iron block or pulley, and fatally injured, through the fault of the defender George Palmer, to the loss, injury, and damage of the pursuers?”

The case was tried before Lord Wellwood with a jury on 8th and 9th March 1892, and the jury returned a unanimous verdict for the pursuers in the conjoined actions on both issues, and assessed the total damages at £600, payable among Mrs Fowlis and her children in certain proportions.

On 17th March 1892 the verdict was applied, and the Shipping Company and George Palmer were decerned and ordained to make payment conjunctly and severally to Mrs Fowlis and her children of the said damages, and by a subsequent interlocutor of 29th May 1892, decree passed in similar terms against the Shipping Company and George Palmer for £239, 4s. 1d., consisting of expenses in the action and dues of extract.

Mrs Fowlis and her children extracted their decree, and on 10th June 1892 charged the Shipping Company to make payment to them of the whole sums, damages, and expenses. The Shipping Company paid the said sums and received from Mrs Fowlis and her children a receipt and assignation of the sums so paid, together with the extract decree. The receipt and assignation proceeded on the narrative that the Shipping Company and George Palmer being both liable jointly and severally for the sums mentioned in the extract decree, “We, the parties foresaid (Mrs Fowlis and her children), resolved to charge the defenders, the said Wick and Pulteneytown Steam Shipping Company, Limited, for payment of the whole sums due in terms of the said extract decree;” and further, considering that on the 10th day of June 1892 they charged the Shipping Company to make payment of the said sums, and that the latter had made payment to Mrs Fowlis and her children of the damages and expenses decerned for, they acknowledge receipt of the said sums; “and now seeing that the said Wick and Pulteneytown Steam Shipping Company, Limited, have requested us, as a condition of the foresaid payment, to grant them the assignation hereinafter written, which (although advised that we are under no legal obligation to grant the same) we have agreed to do,” therefore they assign the principal sums mentioned in the decree, and whole interest due and to become due thereon, and the expenses and dues of extract, “together with the said extract decree and execution themselves, and whole tenor and contents thereof, for all force and effect, if any, which the same may have after payment to us as aforesaid of the foresaid sums by the said Wick and Pulteneytown Steam Shipping Company, Limited: But declaring, as it is hereby expressly provided and declared, that no warrandice of any kind whatever is granted or to be implied by the foresaid assignation.”

Thereafter the Shipping Company applied to George Palmer to relieve them of one-half of the damages and expenses paid by them, but he refused to do so, maintaining that by law there was no right of relief or contribution among wrongdoers, and that as the Shipping Company had paid the debt in full he was discharged, and the assignation was worthless.

The Shipping Company raised an action against George Palmer to have it declared that the defender was bound to free and relieve the pursuers of the sum of £423, 13s. 5d., being one-half of the damages and expenses paid by them to Mrs Foulis and her children, and to have the defender ordained to make payment to the pursuers of the said sum with interest.

The pursuers pleaded—“(1) The pursuers having paid the whole debt constituted by the said extract-decree, for which debt the defender was bound conjunctly and severally with them, the defender is bound to free and relieve the pursuers of one-half of the said debt by making payment to them of the sums concluded for. (2) The pursuers and defender being inter se liable each for one-half of the said debt, and the pursuers having paid the whole debt and obtained an assignation to the said extract-decree constituting same, the defender is bound to repay the pursuers, as assignees foresaid, the sums concluded for, being the half of said debt.”

The defenders pleaded—“(1) The action is incompetent. (2) The pursuers' statements are irrelevant and insufficient to support the conclusions of the summons.”

On 25th November 1892 the Lord Ordinary

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( Wellwood) sustained the second plea-in-law for the defender, and dismissed the action.

“Note.—This case raises an interesting question as to the right or absence of right of relief among co-delinquents.” His Lordship then stated the facts as above—“To a certain point I do not think that the case is attended with much difficulty. By the law of Scotland, following the civil law, there is no relief among wrongdoers or co-delinquents. The person injured may proceed against anyone of the wrongdoers and recover the whole of the damages from him; in which case the others are free, and the one who is compelled to pay has no right of relief against the others—Ersk. i. 3, 15. The result is the same if the person injured sued all the wrongdoers and obtains decree against them conjunctly and severally, but only gives one of them a charge for the damages found due.

The right of relief, when it exists, will always be found to depend upon contract or quasi-contract. Where the right does not form the subject of express stipulation, the law will on equitable grounds infer it from the nature of the transaction in which the parties have joined. Thus a cautioner has a right of total relief against the principal debtor ex mandato, and a partner who is called upon to pay has a right of relief against copartners ex socio. And generally in the case of co-obligants or correi debendi the one who is obliged to pay is entitled to an assignation of the debt to enable him to operate his relief according to its nature against the other correi or co-obligants.

But there is no room for such equitable right in the case of wrongdoers. There is no contract or quasi-contract among them that the damages exacted for the wrong shall be borne pro rata, and the law in their case will not infer any such right. It is the general policy of the law not to assist a wrongdoer to enforce an illegal transaction, or help to restore him against the consequences of such a transaction if he has paid in respect of it; the law leaves the loss where it falls.

Some pertinent remarks by Baron Hume on the principle of this rule in cases of delinquency as distinguished from cases of contract or quasi-contract will be found in his report of the case of Smith v. O'Reilly and Others, February 13, 1890, Hume's Decisions, 605.

I do not think that any distinction can properly be drawn between delicts which contain a criminal element and would form the subject of a criminal prosecution and quasi-delicts which only ground a civil action for pecuniary damages. Causing the loss of life by gross negligence, which was the ground of action against the present pursuers and the defender, falls under the head of delinquency, although the facts might not warrant a criminal prosecution—see Stair, i. 9, 4, and 5. This matter is so fully and authoritatively treated by Lord Justice-Clerk Inglis in the case of The Liquidators of the Western Bank Company v. Douglas & Company, 1860, 22 D. 447, that I need only refer to his opinion on pages 475 to 478.

The pursuers also maintain that the rule that there is no relief among wrongdoers does not apply where the party seeking relief is a wrongdoer by inference of law merely, that is, through a servant or agent, and that being a public company they necessarily conducted their business through their officials and servants. One curious result of this contention, if well founded, would be that while the pursuers would have a good claim of relief against the defender Palmer, Palmer, who I believe superintended the work of unloading himself, would not have had a good claim of relief against the pursuers if he had been compelled to pay damages. It is also to be observed that the fault here alleged, viz., the neglect to provide proper machinery and plant, is the fault of the owners and employers, and not that of their servants, and therefore supposing the distinction contended for were well founded it would not avail the pursuers. No Scottish authority was quoted in support of this contention, and the English cases quoted do not when examined bear it out. Three of the cases— Adamson v. Jarvis, 4 Bingham 66; Betts v. Gibbins, 2 A. & E. 57; and Dugdale v. Lovering, L.R., 10 C.P. 196—go no further than this, that when one person has been induced by another to do some wrongful act in respect of which he is compelled to pay damages to the person wronged, he will be entitled to indemnity against the person who induced him to do the wrong, provided it appear from the facts of the case that the act was not in itself necessarily wrongful, and that the party seeking relief was not aware that he was committing any wrong. In such a case a contract to indemnify may be inferred. The principle to which effect was given in those cases was thus expressed in Toplis v. Grane, 1839, 5 Bingham N. C. 650, in the judgment of Chief-Justice Tindall—‘And we think this evidence brings the case before us within the principle laid down by the Court of Queen's Bench in Betts and Another v. Gibbins, that where an act has been done by the plaintiff under the express directions of the defendant, which occasions an injury to the rights of third persons, yet if such act is not apparently illegal in itself, but is done honestly and bona fide in compliance with the defendant's directions, he shall be bound to indemnify the plaintiff against the consequences thereof.’

The only other case quoted, Pearson v. Skelton, 1836, 1 M. & W. 504, is very shortly and badly reported. The tort in that case consisted in the coachman employed by a coaching firm having occasioned the death of a horse belonging to a person of the name of Pickles. Pickles brought an action of damages against Pearson, one of the partners or joint adventurers, and recovered damages, and Pearson brought an action for contribution against Skelton the defendant, another partner. It was maintained on the part of the plaintiff that the rule laid down in Merryweather v. Nixan only applies

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where both parties are actually employed in the commission of the tort, and does not apply where a party has been made a tortfeasor by inference of law for the act of his servant. In support of this the case of Adamson v. Jarvis was quoted, but, as I have said, I do not think it supports the proposition. In regard to this point all that Baron Park says is—‘The first objection made at the trial’ (that is, that there is no contribution among wrongdoers) ‘does not apply.’ In the end the case seems to have been decided against the plaintiff on the ground that there was a partnership fund out of which expenses fell to be paid, and therefore the non-suit directed by the judge who tried the case was held to be right. On the whole I am not satisfied of the soundness of the distinction which the pursuers seek to draw.

If, then, the present pursuers had simply relied on the fact that they were singled out and compelled to pay the whole of the damages found due, I should have held without much difficulty that they had no right of relief against the defender. The pursuers, however, found upon two special points. First, they say that owing to the pursuers in the conjoined actions having taken decree against them, the present pursuers and the defender, conjunctly and severally, a change has been effected as to their right of relief against the defender. I cannot adopt this view. The decree was taken in that shape simply for the convenience of the persons injured, and I do not see how its form can possibly affect the rights of the present pursuers and defenders inter se. It enabled the original pursuers to recover from both or either of the defenders—that was all.

A plea with more substance is that the pursuers are entitled to recover as assignees of the original pursuers to the decree in their favour. This plea raises a difficult question, and it is not without hesitation that I have come to the conclusion that it is not well founded. It is plausibly put in this way. The original pursuers were ex hypothesi entitled to enforce their decree against either of the original defenders. They might have enforced it against the present defender George Palmer, and entirely liberated the present pursuers; and they have practically done the same thing, because although they have taken payment from the present pursuers, they have assigned their decree to them, which they in their turn may enforce against the present defender, either in their own name or in the name of the original pursuers. In short, it is said the original pursuers were masters of the situation, and it was in their power to liberate either of the defenders in whole or in part, in any way they pleased.

There is much force in this contention, but this does not convince me. For one matter it goes too far. As assignees the pursuers are entitled ex facie of the assignation to total relief, although they do not demand this. I much doubt whether one co-delinquent can, by any transaction with the creditor, keep alive the debt if he once pays it up; and I think further, that looking to the terms of the receipt and assignation granted to the present pursuers, the debt was on payment by them finally extinguished to all effects, and there was thereafter nothing to assign.

If a debt is paid in full by a debtor who is bound in solidum, and who has no right of relief, it seems to me that the debt is extinguished; and that it would be entirely contrary to such a debtor's legal rights and position that he should be able by means of an assignation to keep the debt alive and obtain total or partial relief against a codelinquent. A creditor may no doubt make a present of his debt to his debtor if he pleases; but can he accept payment from the debtor and thereafter keep the debt alive by assignation? The cases in which an assignation may be demanded, and is effectual, are cases in which the person who gets the assignation is not the true debtor, or at least is not the true full debtor, although he may be so in a question with the creditor. But in the case of delinquency, not only is each delinquent liable in solidum in a question with the creditor, but each co-delinquent is the true debtor, there is no relief; and once payment is made the debt is extinguished.

But to come to the particulars of the assignation in the present case. As I have already said, the original pursuers at the outset selected the present pursuers, and directed their action against them alone. On the suggestion of the present pursuers they brought the present defender also into the field. They obtained decree against both defenders in terms which enabled them to recover the whole sum from either, and they again selected the present pursuers, and charged them to make payment of the whole damages and expenses. To that charge there was no stateable defence, and no ground has been suggested upon which it could have been suspended. The original pursuers could not more emphatically have made their selection.

Being threatened with a charge for the whole damages and expenses, the present pursuers were not unnaturally extremely anxious to come to some arrangement by which they should only have to pay one-half. But the original pursuers rejected their proposals and finally gave them a charge for the whole. The receipt and assignation which is annexed to the extract decree is very curiously framed.”—[His Lordship read portions of the receipt and assignation as quoted supra.]

It seems to me that the substance of this transaction is simply this—that being charged to pay the debt in full, the present pursuers did the only thing they could do, they paid it; the creditors would accept nothing less, and there was no defence. The money having been paid, I think the debt was extinguished, because although the money is said to have been paid on condition of getting an assignation, it was quite plain that there was no real condition in the matter, and that all that the creditors intended to do and did was, having got payment in full, to assign their exhausted decree to the present pursuers for any legal

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force and effect it might have after payment, which was simply none.

I am therefore of opinion that the pursuers are not entitled to succeed. At first sight there may seem to be some hardship in this, but it is not so great as it appears to be. The defender, no doubt, has escaped in a way which he had no right to expect. But the pursuers are no worse off than they would have been if they had not, when first sued, induced the original pursuers to bring the present defender into the field, on the averment that he alone was to blame for the accident. If the original pursuers had proceeded and recovered against the present pursuers alone, the latter would not have had any right of relief against Palmer. So far as I am aware, such a claim would have been unprecedented in our Courts, and in the view which I have expressed above would, if made, have been untenable. It would be strange if the pursuers, by getting the defender made a party to the suit on the ground that he alone was responsible for the accident, which has been negatived by the verdict of the jury, and thereafter obtaining an assignation to the decree pronounced against themselves as well as the defender, should succeed in escaping the whole, or at least the half of the liability which would otherwise have attached to them.”

The pursuers reclaimed, and argued—The action was competent. Unless it could be shown that the accident was caused by wilful delict, there was no rule of law which excluded an action of contribution. The fault here was not a personal fault; it was merely an imputed fault. In order to exclude the right of relief, the wrongdoing must be equal to evildoing. This argument was founded on the civil law—Digest, 9, 3, 1 (10), 2, 3, and 4; and Digest, 27, 3, 1 (13), (14), and (15). Kames in his Principles of Equity, 1, 1, 3, 1, holds that a creditor must act impartially, whether the correi debendi were bound for a civil debt or ex delicto, and although this statement might be too wide, it supported the proposition contended for. They demurred to the dictum of Hume in Smith v. O'Reilly, February 13, 1800, Hume's Decisions, 605, that there must be a contract, expressed or implied, in order to found an action of relief. The case of Hay v. La Neve, June 15, 1824, 2 Shaw's Appeals, 395, decided otherwise. In both cases of Western Bank v. Douglas, March 20, 1860, 22 D. 447, and Western Bank v. Bairds, March 20, 1862, 24 D. 859, there was fraud alleged, so these cases did not apply. They quite admitted that where an action was raised against one of two wrongdoers, he could not take the exception that all parties were not called, for this reason, that the law would not in such a case do anything to delay the injured party getting his remedy — Crockery v. Gilmour's Trustees, March 18, 1890, 17 R. 697. But Lord Shand in that case (p. 701) remarked that if he thought he was prejudicing the question whether, if there was no fraud, there would be an action of relief by the one trustee against the others, it might have been different, and indicated that in his opinion there was such relief. The only case cited in support of the defence which was at all in point was Merryweather v. Nixon, April 13, 1799, 8 Term Reports, 186. This was very shortly reported, and doubts had been thrown on its soundness in subsequent English cases— Adamson v. Jarvis, February 5, 1827, 4 Bingham's Reports, remarks of Best, C.-J., pp. 72 and 73; Betts v. Gibbins, November 11, 1834, 2 A. & E., remarks of Lord Denman, p. 74; Pearson v. Skelton, 1836, 1 M. & W. 504; Wooley v. Butte, March 10, 1826, 2 Carrington & Payne, 417; Pollock on Torts (3rd ed.), p. 183.

Argued for the defender—The decision of the Lord Ordinary was right, and the legal arguments in his note were sound. The principle of the law was that it showed no favour to delinquents, and where a joint wrong was done it was no part of the duty of the Court to adjust the rights and interests of the wrongdoers among themselves. In short, the Court would not appraise a wrong. As soon as the damage for the wrong was paid, the obligation founded on the damage was extinguished—Erskine, iii. 1, 15. In all cases, quite irrespective of whether the act was criminal or negligent, no contribution could be claimed as between joint wrongdoers—Addison on Torts, p. 96; Colbain v. Patmore, 1834, 1 C. M. & R. 73, Lord Lyndhurst's opinion, 83; Western Bank v. Bairds, supra, 24 D. 859, Lord Justice-Clerk Inglis' opinion, 901. This was also the law in America— Churchill v. Holt, April 1881, 41 American Reports, 191. The obligation founded on the injury having been extinguished by the payment of the damages found due, the injured party was deprived of all his right to sue, and his assignation was valueless. The contention of the defender also found support in the civil law—Digest, 9, 2, 11, 2; Hunter's Roman Law, 707.

At advising—