Sommerville v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1963 |
| Date | 19 July 1963 |
| Docket Number | No. 64. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Johnston.
ProcessJudicial tenderDeath of pursuer before acceptance of tenderSubsequent acceptance by his executrixWithdrawal of tender by defendersLoss of future earnings material element in pursuer's claimWhether pursuer's death a material change of circumstancesWhether tender fell on death of pursuer.
A retired colliery worker brought an action of damages for personal injuries against his former employers. A material element in his claim was loss of future earnings.
The employers lodged a minute of tender. The worker died before acceptance of this tender and left a will appointing his widow executrix. The widow, as executrix, lodged a minute of acceptance of the tender. A motion for, inter alia, decree in terms of the minutes of tender and acceptance was enrolled, but was not moved, as the widow's confirmation as executrix had not been lodged in process and, before it was possible to move the motion, the employers lodged a minute withdrawing the tender. The executrix thereafter moved for decree for the sum of damages tendered.
Held (rev. judgment of Lord Johnston) that since it extinguished any further loss of earnings which was a material element in his claim, the death of the worker brought about a material change of circumstances, in consequence of which the tender no longer remained operative.
Rule laid down by Lord President Inglis in Macrae v. Edinburgh Street Tramways Co.UNK, (1885) 13 R. 265, at p. 269,applied.
Opinions reserved on the question whether the tender, as an offer, fell automatically on the death of the offeree.
David Sommerville brought an action of damages against the National Coal Board, his former employers, in respect of personal injuries sustained while in their employment, a material element in his claim being loss of future earnings.
The following narrative of facts is taken from the opinion of the Lord Ordinary (Johnston):"The facts are simple and are not in dispute. On 28th May 1962 the now deceased David Sommerville raised an action of reparation against the defenders. Immediately after the action was called, and before defences were lodged, the action was sisted on the unopposed motion of the pursuer pending negotiations for a settlement. On 31st August 1962 the sist was recalled and on 2nd October 1962 the defenders lodged defences and a minute of tender. On 28th October 1962 David Sommerville died, leaving a will in which he appointed his widow, Mrs Jeanie Sommerville, to be his executrix. On 5th November 1962 the action was sisted pending the grant of confirmation, which was granted on 20th February 1963. On 13th March 1963 minutes of sist and amendment, seeking leave to sist the executrix as pursuer in place of the deceased David Sommerville and to make consequential amendments, and a minute accepting the tender were lodged by the executrix. On the same date she enrolled a motion (a) to recall the sist, (b) to sist her as pursuer and (c) for decree in terms of the minutes of tender and acceptance. The motion was marked as opposed and was not moved when it appeared in the Motion Roll, because of the executrix's omission to lodge the confirmation certificate. On 19th March the defenders lodged a minute withdrawing the tender and enrolled a motion to allow the minute of withdrawal to be received. On 20th March 1963 the executrix re-enrolled her motion of 13th March 1963."
On 11th April 1963 the Lord Ordinary refused the defenders' motion to withdraw the tender, allowed the motions for the...
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