Murphy v Smith
| Jurisdiction | Scotland |
| Judgment Date | 28 November 1919 |
| Docket Number | No. 17. |
| Date | 28 November 1919 |
| Court | Court of Session |
Lord President, Lord Mackenzie, Lord Skerrington, Lord Cullen.
Process—Extrajudicial settlement—Tender—Acceptance—Repudiation of acceptance—Contract—Locus Pœnitentice—Action of damages by widow on behalf of herself and pupil children—Acceptance of lump sum without allocation among pursuers.
Minor and Pupil—Parent and Child—Right of parent to grant valid discharge of child's claim of damages.
A widow, as an individual and as tutrix of her pupil children, brought an action of damages against the owner and the driver of a motor car which had run over and killed her husband, concluding for separate sums of damages for herself and for each of the children. An issue for the trial of the action was approved, but before the case was tried the defenders lodged a minute of tender offering a lump sum in settlement of the action. The pursuer's agents, after consultation with her, believed that she had instructed them to accept the offer, and accordingly they wrote on 24th January 1919 to the defenders' agents accepting it, and asking for the draft of a joint minute to take the action out of Court. On 19th February they again wrote to the defenders' agents intimating that the pursuer repudiated the instructions she had given them to accept the offer.
In a note by the defenders craving the Court to allow a proof of their averments as to the settlement of the action, held that, as the minute of tender contained no apportionment among the pursuers of the sum offered in settlement, there was no concluded bargain and the pursuer was entitled to resile.
Opinion (per the Lord President) that a mother could grant a valid discharge of a claim of damages by her pupil child.
On 23rd April 1918 Mrs Alice M'Gill or Murphy, widow of William Joseph Murphy, private in the Royal Highlanders (Black Watch), for herself and as tutrix and administatrix-in-law of her pupil children—Agnes, William, Mary, Charles, and Francis—brought an action against David Smith and Edwin Heath Smith, who were the owner and driver respectively of a motor car which knocked down and killed her husband. The summons concluded for payment of separate sums of damages to the pursuer and each child, viz., to the pursuer herself £750, to Agnes £90, to William £105, to Mary £150, to Charles £200, and to Francis £250—in all £1545.
On 22nd November 1918 the Lord Ordinary (Sands) approved of an issue for the trial of the cause. On 29th November the defenders gave notice of motion to vary the issue, and the case was sent to the Summar Roll of the First Division.
On 20th January 1919, before the case had been heard, the defenders lodged a minute of tender in the following terms:—
‘Forbes for the defenders, and under reservation of all their rights and pleas, hereby tenders the sum of £150 sterling, with expenses of process in full of the conclusions of the action.’
On 23rd January the pursuer along with her brother-in-law discussed the tender at a meeting with her counsel and agents, and the agents understood that she had instructed them to accept the tender. Accordingly, on 24th January, they wrote to the defenders' agents as follows:—
‘Edinburgh, 24th Jan. 1919.
‘Messrs Menzies, Bruce-Low, & Thomson, W.S.,
23 York Place, Edinburgh.
‘Murphy v. Smith.
‘Dear Sirs,—We have been instructed to accept the defenders' tender of £150 and expenses, and we shall be obliged if you will send us a draft of the joint minute for disposing of the action at your early convenience.—Yours faithfully, Rainy & Cameron.’
The same day the pursuer wrote to her agents:—
‘Jan. 24th 1919.
‘Dear Sir,—Regarding your offer for my husband, Wm. Murphy, I regret to say that I have to consider same, as its a ridiculous sum to offer a woman with five children who has all her life before her. —Yours respectfully, Mrs Murphy.’
After sundry correspondence the pursuers' agents wrote to the defenders' agents:—
‘Edinburgh, 19th Feb. 1919.
‘Messrs Menzies, Bruce-Low, & Thomson, W.S.,
23 York Place, Edinburgh.
‘Murphy v. Smith.
‘Dear Sirs,—We duly received your letter of 14th inst. We regret the delay in writing you definitely with reference to this matter...
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