Kerr v R & W. Ferguson
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1931 |
| Docket Number | No. 88. |
| Date | 12 July 1931 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION., 1ST DIVISION with four consulted Judges.
Ld. Moncrieff.
ArrestmentJurisdictionis fundand causaArrestment in hands of insurance company liable to indemnity defenderliability contingent upon pursuer obtaining decree.
In an action of damages against a defender resident abroad, based on his negligent driving of a motor car while on a visit to Scotland, the pursuers, in order to found jurisdiction, used arrestments in the hands of an insurance company with whom the defender was insured. The insurance policy covered damage to the defender's own car, and liability for damage to third parties and for legal expenses. Before the date when the arrestments were laid on, the insurance company had indemnified the defender for the damage to his own car in the accident giving rise to the action. They had also received from him intimation of the claim which had been made against him by the pursuers, and were themselves defending the action.
Held (dub. Lord Blackburn) that the arrestments were ineffectual to found jurisdiction, in respect that, at the date when they were laid on, there was no present liability on the part of the insurance company to account to the defender.
JurisdictionDomicileDomiciled Scotsman resident abroadDelict committed in ScotlandNo personal citation.
A defender, whose domicile of origin was Scottish but who had resided abroad for some years without, however, losing his Scottish domicile, was sued in respect of a delict committed while on a visit to Scotland. The delict consisted in the negligent driving of his motor car, resulting in a collision with another motor car, the owners of which were also cited as defenders. At the date when the action was brought against him he had gone abroad again and he was not personally cited, but he had intimated the claim to an insurance company with whom he was insured against third-party risks and they were themselves conducting the defence.
Held, by a Court of seven judges (diss. Lord Hunter and Lord Blackburn), that the defender's Scottish domicile of origin, coupled with the commission of a delict in Scotland, did not suffice to found jurisdiction against him in the absence of personal citation in Scotland.
Authorities reviewed. Corporation of Glasgow v. Johnston, 1915 S. C. 555, overruled.
Peter Kerr, 12 Portugal Street, Glasgow (as an individual, and as tutor and administrator-in-law for his pupil children), and Mrs Sarah Malone or Kerr, his wife, brought an action against (first) R. & W. Ferguson, motor omnibus proprietors, Victoria Garage, Renfrew, and (second) Thomas Armstrong M'Gregor, care of Lago Steamship Company, Limited, Aruba, Dutch East Indies. The conclusions of the summons were for damages for personal injuries sustained in a collision between an omnibus belonging to the first-named defenders, in which the pursuers were passengers, and a motor car owned and driven by the second-named defender, on 17th August 1930, on the road between Glasgow and Greenock. The summons as originally framed was brought against the first-named defenders only, and was signeted on 24th October 1930. The second-named defender, M'Gregor, was made a party to the action by amendment dated 9th December 1930.
The averments of the parties, so far as the subject of this report is concerned, were as follows (the portions printed in italics being added by amendment when the case was in the Inner House):(Cond. 1.) "The first-named pursuer is an iron-dresser, residing at 12 Portugal Street, Glasgow, and sues this action for himself as an individual, and as tutor and administrator-in-law for his pupil children, John and Thomas, aged seven years and six months respectively. The second-named pursuer is the wife of, and resides with, the said Peter Kerr. The first-named defenders are R. & W. Ferguson, motor bus proprietors, Victoria Garage, Renfrew. The second-named defender sometime resided care of Donnachie, Drinhill, Broomberry Avenue, Gourock, or at 199 Bath Street, Glasgow, and is now believed to be in South America. With reference to the averments in answer by the second-named defender, admitted that on or about 5th December 1930 the pursuers lodged arrestments in the hands of the Motor Union Insurance Company, Limited, to found jurisdiction against the second-named defender. It is believed and averred that in terms and by virtue of a contract of insurance between the second-named defender and the said Motor Union Insurance Company, Limited, which was in force at the date of the aftermentioned accident, the said insurance company were bound to indemnify the second-named defender from all third party claims arising out of an accident, and all expenses in connexion therewith, and in respect of damage to his motor car. The pursuers intimated their claim against the second-named defender on or about 29th August 1930, and the second-named defender thereupon called upon the said insurance company to deal with said claim under the said contract of insurance. At the date of the said arrestment the said insurance company was liable to account to the second-named defender in respect of the pursuers' claim and a claim made against him by the first defenders, and the said arrestment attached the said claims and liability to account. Jurisdiction has been competently established against the second-named defender by said arrestment. The second-named defender is a domiciled Scotsman who has not acquired any domicile elsewhere. Letter from the Motor Union Insurance Company, Limited, to the Omnibus and General Insurance Company, Limited, the insurance companies of the first and second defenders respectively, dated 28th August 1930, is produced. The second defender is called on to produce the said policy of insurance. Quoad ultra denied. (Ans. 1 for first-named defenders.) The first-named defenders' name and designation are admitted. Quoad ultra not known and not admitted. (Ans. 1 for second-named defender.) A copy of the said contract of insurance is produced and referred to.1The said letters are referred to for their terms. Admitted that this defender's domicile of origin is Scottish and that he has not acquired a domicile of choice elsewhere. The averments regarding this defender are denied. Quoad ultra not known and not admitted. Explained that 199 Bath Street is the business address of Mr Donnachie, electrical engineer, and that this defender never resided there. This defender has no residence in Scotland. He is a sea-going engineer, and was in Scotland for a time on holiday during the summer of 1930. He left Scotland to rejoin his ship on or about 19th August 1930.He has not resided in Scotland for more than a few days at a time during the last ten years. When not at sea he resides in Aruba, Dutch East Indies. On 5th December 1930 the pursuers purported to arrest in the hands of the Motor Union Insurance Company, Limited, 247 West George Street, Glasgow, 1000, more or less, due and addebted by them to this defender, jurisdictionis fundand causa, and a copy of the record in this case was thereafter sent to the said insurance company. No sum was due by the said company to this defender at the date of the said arrestment, and accordingly this defender is not subject to the jurisdiction of the Scottish Courts.This defender made a claim against the said insurance company in respect of damage to his car arising out of the said accident, but this claim was settled by a payment of40, 13s. 4d. which was made on 13th October 1930." (Cond. 2.) "On or about 17th August 1930, whilst the pursuers and their pupil children, John and Thomas, were travelling as passengers in a motor omnibus belonging to the first-named defenders, which was being driven eastwards on the main Greenock-Glasgow Road by a servant in the employment of said first-named defenders, and for whose actings the said defenders are responsible, the said omnibus came into violent collision with a motor car which emerged from the Erskine Ferry Road. (Ans. 2 for first-named defenders.) Admitted that on 17th August 1930 a motor bus belonging to the first-named defenders was being driven eastwards on the main road from Greenock to Glasgow, by a servant of the first-named defenders in the course of his employment, and that a motor car, which emerged from the Erskine Ferry Road, collided with the said motor bus. Quoad ultra denied. (Ans. 2 for second-named defender.) Admitted that a motor omnibus belonging to the other defenders was being driven along the Greenock-Glasgow Road and that it came into collision with a motor car which emerged from the Erskine Ferry Road. Quoad ultra not known and not admitted." [Cond. 4 contained averments of fault and negligence against the driver of the first defenders' omnibus. Ans. 4 for the first defenders contained averments that the accident was due solely to the fault and negligence of the second defender.] (Cond. 5.) "The
said accident was also caused or contributed to by the fault and negligence of the second-named defender, as averred by the first-named defenders.
The second-named defender, M'Gregor, pleaded, inter alia;"(1) No jurisdiction."
On 27th January 1931 the Lord Ordinary (Moncrieff) sustained the first plea in law for the second-named defender, M'Gregor, and dismissed the action as regarded him.
At advising on 12th June 1931,
Lord President (Clyde).This is an action of damages for personal injuries by two omnibus passengers. It was originally brought against the omnibus proprietor in respect of his negligence in colliding with a motor car. The omnibus proprietor denied all negligence on his part, and alleged that the collision was due to the fault of the driver (and then
owner) of the motor car. The pursuers thereupon amended their summons and condescendence to the effect of charging, not merely the omnibus proprietor, but also the owner of the motor car, with liability for alleged negligence causing or contributing to the...
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