Scottish Court of Session Decisions

This was an action to recover a sum of money under a policy of the Accident Insurance Company (Limited) under the following circumstances:—The company by the policy had undertaken with the pursuer, the assured, James Mac-Robbie, that if during its being in force the insured should sustain any personal injury within the intention of the policy, and provisions and conditions thereof, which should not be fatal, then, on proof of such injury, and of incapacity thereby caused, the company should be liable to pay compensation for total disablement at the rate of £3, 12s. per week while the incapacity should last. The policy contained a condition that it “should not extend to any injury. .. happening while the assured is under the influence of intoxicating liquors or drugs.”

On the 12th of June 1885 MacRobbie took the 11 p.m. train from Glasgow to Cambuslang, where he was at that time living. He got out at Cambuslang. He averred that in doing so he severely injured his ancle upon the platform in stepping down from the railway carriage, owing to an inequality in the platform, that his injury grew worse as he endeavoured to proceed home, and it subsequently proved that his leg had been fractured.

The defence at first stated was that the pursuer had failed to comply with the provisions of the policy. But on adjustment of record it was averred that the pursuer met his accident when under the influence of intoxicating liquor; that he was assisted out of the train without accident, and subsequently received his injury in some way which was never explained to the directors, as required by the conditions of the policy, so that he was not entitled to relief under the conditions of the policy.

The Lord Ordinary ( Fraser) allowed a proof, of which the import was as follows:—The pursuer swore that although he had had some drink that 12th of June, after business hours, he was quite sober when he entered the train at Glasgow, that he got down from the train at Cambuslang without assistance, and that he hurt his foot owing to some inequality in the platform, that he thought at the time that he had sprained his ancle, but as he endeavoured to walk home he became worse, and eventually fainted, and was conveyed home by two policemen who found him. A railway porter at Cambuslang deponed that he saw the pursuer, whom he knew, that night, and that (although he did not take any particular notice of him) he did not think he was intoxicated. Two policemen who found pursuer also swore that when they found him at three o'clock a.m. he was sober, although with the smell of drink on him.

For the defence the guard of the train from Glasgow to Cambuslang swore that he put another passenger into the same carriage with pursuer, that pursuer was then lying on the floor of the carriage, and that he locked the door, as he did not think pursuer was fit to take care of himself; that on the arrival of the train at Cambuslang the pursuer was assisted from the carriage by the guard and the booking-clerk; that he (witness) was not prepared to say that the pursuer would have been able to get down without assistance; and that he was of opinion that the pursuer was under the influence of liquor. This was corroborated by the booking-clerk at Cambuslang, who deponed that he and the guard had helped pursuer to alight, that he needed assistance, and was not sober.

The Lord Ordinary decerned against the defendersin terms of the conclusions of the summons.

“ Opinion.—The only defence insisted in against the claim of the pursuer is that he was under the influence of intoxicating liquor’ when he sustained the injury for which he now asks compensation under the policy of insurance. These words are very loose. Literally interpreted they would be held to justify this Insurance Company in not paying under their policy if the assured had had a glass of wine. But this cannot be the meaning of a contract of this nature, and the defenders did not conduct their case on that footing. They endeavoured to show that the assured here was in such a state of intoxication as to be incapable of taking care of himself, and to be very liable to suffer a fracture of the leg. Now, if one witness, David M'Walter, a railway guard, can be believed, there can be no doubt that the pursuer was in such a state of intoxication as the defenders have attempted to establish, for his evidence goes this length, that he saw the pursuer lying upon the floor of a railway carriage when he, the guard, opened the door of the locked compartment to let in another passenger; and he further says that when the train arrived at Cambuslang he and the booking-clerk helped the pursuer out of the carriage in a state of intoxication. The clerk does not quite corroborate this, and there is no further corroboration of M'Walter. The person who entered the compartment of the railway carriage in which the pursuer was at the Central Station in Glasgow has not been produced, perhaps because his name was unknown. His evidence would have been conclusive upon the subject.

Page: 392↓

Now, as against this evidence there is the pursuer's own statement, which was given with perfect frankness, and he made admissions as to having had whisky during the day of the 12th of June, which he need not have made if he intended to tell an untruth, for there was no one to contradict him. He admitted having ‘had about three glasses of whisky in the course of the whole day and that evening,’ but he said that this did not make him intoxicated, or in any way incapable of taking care of himself. James Campbell, a tobacco manufacturer in Glasgow, the last person whom he saw before he went on his journey to Cambuslang, parted with him at twenty minutes to eleven o'clock at the railway station (the train starting at eleven), and he swore that the pursuer then was sober. Edward Grant, the porter at the Central Station, and James Wallace, the porter at the Cambuslang Station, saw the pursuer, the one when he entered the train, and the other when he left it, and their opinion was that he was not intoxicated. Lastly, when he is found sitting on the Cambuslang Road at three o'clock in the morning, with a broken leg, and unable to walk home to his own house, which was only 150 yards distant, the two constables, Kelman and Gunning, found him to be sober, although they state that they did smell spirits on him. He himself admitted that before parting with James Campbell, the tobacco manufacturer in Glasgow, he had had half a glass of whisky with him.

I am unable to reconcile this evidence by supposing that M'Walter was under an error as to the identity of the man whom he saw in the railway carriage at the Central Station with the man whom he helped out of it at Cambuslang Station, because he swears positively that it was the same man, and he says he was the pursuer, whom, however, he admits he only slightly knew. I further cannot take upon me the responsibility of saying that M'Walter did not think that he was telling the truth. And a Judge therefore who has in these circumstances to cast the balance of irreconcileable evidence must decide against the person on whom is the onus probandi. It was incumbent on the defenders here to prove as clearly and without doubt that the pursuer was under the influence of intoxicating liquor at the time he met with the accident as it was upon him to prove that his leg was fractured. The defenders have not succeeded in doing so to my satisfaction, and I must therefore give judgment in favour of the pursuer.”

The defenders reclaimed, and argued—The pursuer was shown to have been under the influence of liquor when he received his injury, and that was enough to void his policy. It was not necessary for the defenders to show that the pursuer received his injury directly from the influence of drink if he was under the influence of liquor when he received it.

Authorities— Mair v. Railways Passengers Insurance Company, 37 Law Times, 365.

Argued for the pursuer—The pursuer's accident was not attributable to his being under the influence of liquor, but was owing to other circumstances. The claim on the Insurance Company had been made in the proper time, and he was entitled to the benefits under the policy. The evidence for the defence did not show that the pursuer was drunk at the time he received his accident. The guard's evidence was not given till fourteen months after the accident, and it was quite likely that he had made some mistake as to the person whom he had assisted from the train.