Steven v Broady Norman & Company
| Jurisdiction | Scotland |
| Judgment Date | 11 January 1928 |
| Date | 11 January 1928 |
| Docket Number | No. 32. |
| Court | Court of Session |
Ld. Constable, Lord Justice-Clerk (Alness), Lord Hunter, Lord Anderson.
ReparationTwo or more wrongdoersElection of remedyAction for personal injury against driver of motor carDecree in absence obtained but found worthlessSubsequent action against persons responsible for driverCompetencyPersonal Bar.
A father, whose son had died from injuries received in a motor car accident, brought an action of damages against the driver of the motor car, and obtained a decree in absence, which proved to be worthless. Having learned subsequently that the motor car belonged to a company, that the driver was a director of the company, and that, at the time of the accident, the motor car was being driven on the company's business, he brought an action against the company, in which he offered to assign to the defenders his decree against the driver. The company pleaded in defence that the pursuer, having already sued and obtained decree against the driver of the motor car, was barred from suing the second action.
Held that the fact that a decree has been obtained against one of a number of joint and several obligants does not preclude a fresh action being brought against the others, if satisfaction has not been got under the decree already obtained; and plea repelled.
On 25th February 1927 George Steven, creamery worker, Glebe Street, Stranraer, brought an action against Broady Norman & Company, Limited, incorporated under the Companies Acts, and having their registered office at No. 49 Victoria Street, Glasgow, in which he concluded for payment of 500. The Company having gone into liquidation on 8th June 1927, the liquidator, J. Cole Hamilton, chartered accountant, Glasgow, was sisted as a party to the action.
The following narrative of the facts is taken from the opinion of the Lord Ordinary:The pursuer in this case claims damages from the defenders for the death of his son, who died in consequence of a collision between a motor cycle which he was riding and a motor car belonging to the defenders. The point discussed before me was a plea of bar stated by the defenders in the following circumstances. At the time of the accident, which occurred in April 1926, the defenders' car was being driven by one of their directors named Isaac Krevitsky. In November 1926 the pursuer brought an action of damages against Krevitsky in the Court of Session for 500, on the ground that the accident was due to Krevitsky's negligence. The action was undefended, and on 11th December 1926 the pursuer obtained a decree in absence for the full amount claimed. He has now brought another action against the defenders on the ground that the car was being used on their business, and that they are liable for Krevitsky's fault. He explains that he has found it impossible to recover anything from Krevitsky, and he offers to assign his decree to the defenders. He further explains that, when he brought the first action, he did not know that Krevitsky was one of the defenders' directors, or that the car was being used on their business.
The defenders pleaded, inter alia:(4) The pursuer, having already obtained decree for the full amount of his alleged loss, injury, and damage against the said Isaac Krevitsky, is barred from suing the present action, and the defenders should, accordingly, be assoilzied from the conclusions of the summons.
On 25th June 1927 the Lord Ordinary (Constable) repelled the fourth plea in law for the defenders, and ordered issues.
Lord Constable'sopinion.[After the narrative quoted supra]If the pursuer's averments are well founded, Krevitsky and the defenders were jointly and severally liable to him for the consequences of Krevitsky's negligence; and the question is whether the taking of a decree against one of the joint and several obligants, upon which no satisfaction has been obtained, precludes a fresh action being raised against the others.
There seems to be no doubt that that would be the result of taking decree against one of two parties whose liability was properly alternative, as in the case of an agent for an undisclosed principalMeier & Co. v. KchenmeisterSC, (1881) 8 R. 642. But it is well settled that, in cases of delict or quasi delict for which several persons are jointly and severally responsible, differing in this respect from cases of joint and several contractual obligation not constituted by writingNeilson v. WilsonSC, (1890) 17 R. 608the party having a right of action may sue one delinquent without calling the othersLiquidators of Western Bank v. DouglasUNK, (1860) 22 D. 447; Croskery v. Gilmour's TrusteesSC, (1890) 17 R. 697and that, if he sues them all, he may discharge some of them on payment of sums which do not exhaust his claim and consent to their being assoilzied, without impairing his right to continue the action against the others for the balance of the sum claimedWestern Bank v. Bairds,UNK (1862) 24 D. 859; Douglas v. Hogarth, (1901) 4 F. 148. It was further held in Dillon v. Napier, Shanks, & Bell,UNK (1893) 30 S. L. R. 685, that the raising of an action against one of several wrongdoers, followed by the discharge of that particular obligant on payment of a modified sum, did not bar another action from being raised against another of the alleged delinquentsalthough, on the pursuer's averments, the second action was held to be irrelevant. Similarly in Morton's Trustees v. Robertson's Judicial FactorSC, (1892) 20 R. 72, where three partners of a firm had bound themselves, jointly and severally, for payment of a certain debt, and the firm had been dissolved by the death of one of the partners, it was held that the bondholder, who had assented to a trust-deed granted by the new firm, had lodged a claim for the full amount of the debt, and had accepted a dividend thereon, was not barred from claiming the balance of the debt from the estate of the deceased partner. This case was followed in Smith v. PatrickELR, (1901) 3 F. (H. L.) 14, [1901] A. C. 282.
These authorities seem to establish the principle that, in cases of joint and several liability, the creditor may pursue separate remedies against each of the obligants, so long as he neither discharges the debt nor affects the rights of relief of the obligants inter se. The only novelty in the present case is that the creditor, instead of accepting payment of a modified sum from a particular obligant or being ranked on and receiving a dividend from the estate of a particular obligant in the earlier proceedings by way of action or process of distribution, has obtained a formal decree for the full amount claimed which is worth nothing. I am unable to see any sufficient ground in principle for distinguishing such a case from the others. In particular, I am unable to see why a creditor, who has claimed the full amount due to him and obtained a decree for that amount in an action against a particular obligant, should be in any worse position than a creditor who has claimed the full amount due to him and obtained a ranking thereon in the sequestration of, or under a trust-deed granted by, a particular obligant. No doubt in the latter case the creditor can instantly verify the amount by which his claim against the other obligants falls to be reduced. But he could equally do so in the first case by sequestrating the obligant against whom he already holds a decree; and it would be unreasonable to compel him so to follow out his decree if he is in a position to show that it would be futile.
It was argued that, by taking decree against Krevitsky, the pursuer has elected to treat him as his sole debtor. But election implies a choice deliberately exercised between two alternative and mutually exclusive remedies. In the present case there was, if the pursuer's averments are well founded, no deliberate choice possible, because the pursuer was not aware of the relation between Krevitsky and the defenders. Nor was the claim against Krevitsky exclusive of a claim against the defenders, because both were liable in solidum. It was further argued that, if the pursuer obtains decrees both against Krevitsky and against the defenders, he will be in a position to recover his debt twice over. But, apart from his offer to assign the existing decree to the defenders, I have no doubt that any attempt on his part to enforce one decree without regard to what he had recovered under the other could be prevented by a suspension, in the same way as the creditor under a joint and several decree, while he is entitled to charge any of the obligants therein, can be prevented by a suspension from recovering more than the balance of his debt. The decree in the action against the defenders could, if necessary, be so expressed as to show that it related to the same debt as the decree against Krevitsky, even though the amounts in the two decrees were differentDuthie v. Caledonian Railway Co.SC, (1898) 25 R. 934. Finally, it was argued that to allow two separate actions to be taken would be contrary to the rule of procedure which forbids a multiplicity of actions in respect of the same wrong. There is a well-settled rule, illustrated by Stevenson v. Pontifex & WoodSC, (1887) 15 R. 125, that a single act amounting either to a delict or to a breach of contract cannot be made the ground of two or more actions against the same person. The same principle, that of protecting persons against successive actions arising from the same originating cause, underlies the rule that, where there is a claim of damages arising out of a wrong done, all the persons interested in that claim should sue in one actionDarling v. Gray & SonsELR, (1892) 19 R. (H. L.) 31, [1892] A. C. 576; Pollok v. WorkmanSC, (1900) 2 F. 354. The principle does not appear to me to be applicable to actions against separate debtors, in circumstances where it has been already recognised that the creditor can sue one without making the others parties.
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