Darling (Pauper) v. Gray and Sons [1892] UKHL 910
(Before the Lord Chancellor , Lord Watson , Lord Herschell , Lord Morris , and Lord Field .)29 SLR 910Darling (Pauper) v. Gray and Sons.( Ante , vol. xxviii. p. 872, and 18 R. 1164.)
Subject_ Reparation — Master and Servant — Injury to Workman resulting Fatally after Action brought — Solatium — Executor — Competency of New Action by Mother for Damages for same Injury. Facts:A workman died during the progress of an action of damages which he had brought against his employers for injuries sustained in their service, and his mother, as his executrix, was sisted as pursuer in the action. The mother afterwards brought an action of damages as an individual against her son's employers for the loss caused to herself by the death of her son.Held ( aff . judgment of the Second Division) that this second action was incompetent.This case is reported ante , vol. xxviii. p. 872, and 18 R. 1164.The pursuer Mrs Jane Wood or Darling appealed.At delivering judgment—
Lord Watson —I am of opinion that the unanimous decision of the Second Division of the Court of Session in this case is in strict accordance with the existing law. The reasons assigned for it, which were delivered by Lord Young, are not fully expressed, but it sufficiently appears that the judgment of the Court proceeded upon the ground that the appellant's action was unknown to the law, and was therefore incompetent. The maxim actio personalis moritur cum persona has a very limited application in the law of Scotland, and in evidence of that proposition I need do no more than refer to the elaborate opinions of Lord Neaves and other Judges in Auld v. Shairp . It is in my opinion unnecessary for the purposes of this appeal to examine that case or to consider how far a bare claim in respect of personal injuries occasioned by the negligence of another constitutes a debt due to the party injured, which will pass upon his death without having brought an action to his personal representatives. The law has long been settled that when the deceased has instituted an action to enforce his claim, his executor can take up and insist in the process to the effect of recovering the pecuniary damages to which the deceased was entitled. The Court of Session, by a series of decisions which trench somewhat closely upon the province of the Legislature, has, subject to certain limitations, sustained actions at the instance of relatives of the deceased in their own rights, and not in a strictly representative capacity, against the parties whose negligence occasioned his death for the loss which they personally suffered through that event. Your Lordships had recent occasion in Clarke v. Carfin Coal Company to consider the class of persons to whom such a right of action has been given, and it was there held, in accordance with the rule adopted in the Courts below, that it only comprehended those persons between whom and the deceased there existed a reciprocal obligation of support in the event of either of them becoming indigent. The practical effect of your Lordships' decision was to limit the class to persons standing in the legitimate relation of husband, father, wife, mother, or child to the deceased. In Eisten v. Eisten , which is the leading authority upon this branch of the law, the Lord President (Inglis) observed—“As the existence of such claims in our common law is a peculiarity of our system, it is not desirable to extend this class of actions unless they can be justified on some principle which has been already established.” In that observation, which has been repeatedly made in different terms by other Judges of the Court ofPage: 911 ↓
The Lord Chancellor , and Lords Herschell , Morris , and Field concurred.Their Lordships dismissed the appeal.Counsel for the Appellant— Rhind— Kennedy. Agents— Keeping & Gloag, for D. Howard Smith, Solicitor.Counsel for the Respondents— Sol.-Gen. Graham Murray, Q.C.— Johnston. Agents— Ingleden, Ince, & Colt, for T. & W. A. M'Laren, W.S.