Scottish Court of Session Decisions

Mrs Jeanie Fowler M'Culloch or M'Nee, 21 Seymour Street, Glasgow, with consent of her husband James M'Nee junior, and James M'Nee junior for himself, and as tutor for his pupil child Jeanie Fowler M'Culloch M'Nee, brought an action in the Sheriff Court at Glasgow against the testamentary trustees of the late William Brownlie, 30 M'Culloch Street, Pollok-shields, Glasgow, for £200 damages on account of loss sustained by them owing to the defective condition of the drains of a house rented by them from the defenders.

The following were the material averments of the pursuer:—The premises, consisting of a shop and house behind, No. 78 North Woodside Road, Glasgow, were let by the defenders to James M'Nee for the year from Whitsunday 1886 till Whitsunday 1887. M'Nee and his family entered into possession about the beginning of May 1886, and remained therein until October 1888, the let being renewed from year to year by missive, or otherwise by tacit relocation. In October the pursuers were compelled to remove from said premises owing to the insanitary condition thereof, the same having become dangerous to health, and the defenders' attempts to remedy the evil having provedin effectual. In March 1888 the pursuers discovered disagreeable smells in said house and shop, arising as they averred from the defective condition of the sewage pipes and the drains, which were old, not properly jointed, and allowed the sewage and sewage gas to escape therefrom, and which were generally insufficient for the purpose for which they were being used. M'Nee in March, and on several occasions between then and October following, and in particular in the months of April, May, and September,

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made complaints to the defenders' factor in regard thereto, and the factor by himself or his clerk on such occasions promised to attend to the matter, and have the nuisance complained of removed, and did on certain occasions during said period instruct tradesmen to take steps ostensibly for that purpose, which were, however, unsuitable or insufficient for the purpose in view, or at any rate they were unsuccessful. In August 1888, and while the defenders were still professing to be able to have the evil complained of remedied, and were taking or causing to be taken unsuitable or insufficient steps in connection therewith, Mrs M'Nee was taken suddenly ill, and it was averred had been under medical treatment down to the date of the action. M'Nee and the child had also suffered, and in all cases the illness was produced by the insanitary condition of the house. The illness had caused M'Nee considerable expense. He had incurred a large account for medical attendance on his wife, and for her residence at the coast, and he had been compelled to engage a woman to discharge the duties, previously discharged by her, of attending to the shop. He had further been put to the expense of removing from the premises, and had also lost the profit on the sale of his goods in the shop for the unexpired period of the let.

The defenders denied that complaints had been made until September 1888, when they overhauled the pipes and drains, and put them in order where necessary.

The pursuers pleaded—“(1) It being an implied condition of the let by the defenders' factor to the male pursuer that defenders would keep the premises so let in a habitable and tenantable condition, and the pursuers and their said child having suffered in their health in consequence of their failure so to do, they are entitled to reparation from defenders therefor. (2) The male pursuer having incurred accounts and suffered loss as within condescended on, in respect of the insanitary and uninhabitable condition of the premises let, he is entitled to reimbursement and reparation from defenders therefor.”

The defenders pleaded—“(1) The action is irrelevant. (2) The pursuers having remained in the house for months after they believed the house to be in an insanitary condition, and the illness and others of which they complain having supervened after that event, they are not entitled to insist in the action. (3) The defenders, having so soon as possible after complaint was made to them that the house was in an insanitary condition, caused the sewage pipes and drains to be overhauled and put into proper order where necessary, are entitled to be assoilzied, with expenses.”

The Sheriff-Substitute ( Spens) on 28th February 1889 allowed a proof before answer.

“ Note.—I was referred to the case of Munn v. Henderson, 15 R. 859, and specially a dictum of Lord Young to the effect that there could be no claim of damages for an insanitary house against a landlord when the tenant had lived on in the knowledge that there was something sanitarily wrong. On the other hand, I have had before me the record in a case which was before the First Division” [ Gourlay v. Ferguson, decided 2nd November 1887], “although it is not reported, when (affirming a judgment of Sheriff Lees) damages were awarded to a tenant for damages caused by living in an insanitary house which the landlord had failed to put in proper order, although apparently all along the tenant was complaining of the house being in an insanitary and improper state. In view of this case I prefer to hear the facts of the case before pronouncing any final judgment.”

The defenders appealed to the Second Division of the Court of Session, and argued—There was here no issuable matter. The statements were irrelevant and insufficient to found a claim of damages. There was no fault on the part of the landlord competently alleged here. The pursuers relied on the unreported case of Gourlay v. Ferguson, but in that case the statements were much more specific, and there was no question of relevancy, and the matter came before the Court after a proof. This case was ruled by the more recent case of Munn v. Henderson, July 7, 1888, 15 R. 859. The pursuers' proper course was to leave the house, and decline to pay the rent— Scottish Heritable Security Company (Limited) v. Granger, January 28, 1881, 8 R. 459.

Argued for respondents—The statements were relevant. They were more specific than in the case of Munn. The particular defect in the drains complained of was here averred, viz., improper jointing. Notice had been given to the landlord, which was not done in the case of Munn. There was no acquiescence here, which Lord Young thought there had been in that case. In the case of Gourlay v. Ferguson, unreported, but decided upon 2nd November 1887, damages were awarded to a tenant in practically similar circumstances. That case ruled the present. [ Lord Young—Is a landlord liable for the sickness or death of his tenants caused by defective drainage in a house let by him, although there is no specific allegation of fault on his part?] He might be, and therefore the Sheriff-Substitute was right in allowing a proof— Kippen v. Oppenheim (beetles), December 13, 1847, 10 D. 242; Cleghorn v. Spittal's Trustees (chimney can), February 27, 1856, 18 D. 664; Reid v. Baird (defective roof), December 13, 1876, 4 R. 234; Moffat & Company v. Park (bursting of pipe), October 16, 1877, 5 R. 13; M'Monagle v. Baird & Company, December 17, 1881, 9 R. 364.

The Judges of the Second Division, in respect of the difficulty and importance of the question submitted for determination, appointed the case to be argued before them and three Judges of First Division.

The appellants argued as above.

Counsel for the respondents were not called upon.

At advising—