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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hunter v Hunter [1904] ScotCS CSIH_5 (24 November 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/1904_7_F_136.html
Cite as: [1904] ScotCS CSIH_5, (1904) 12 SLT 444, (1904) 7 F 136

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JISCBAILII_CASE_SCOT_CONTRACT

24 November 1904

Hunter
v.
Hunter.

Lord Justice-Clerk.—I think that the facts which are admitted in this case shew that the money was neither paid to nor accepted by the defender on the footing that she was receiving it only for the purpose of giving a discharge to the insurers and as trustee for other persons. In the case of Law v. Newnes it was decided that the editor of the paper was entitled to nominate whom he pleased as the next of kin, provided he acted in bona fide. In this case the documents shew that he did so act, and that the defender was adjudged to be the next of kin after careful inquiry. I think no one can have any claim against her on the ground that she is only a trustee for the money received, and any claim there might be by the remaining next of kin against the paper for paying away the money wrongfully could not be a claim against her.

Lord Young.—I think that in the circumstances of this case a very important legal question might be raised as to whether the proprietors of these newspapers ever came under any legal obligation to anyone under the passages which are cited and upon which any claim must be founded. But no such question is raised here, nor is it likely to arise, because these offers are made for the purpose of promoting the sale of the paper, and if the payments were not made honestly each time a bona fide claim was lodged, they would fail to have the effect which they are intended to produce. It is admitted that at the moment when Mr Hunter was killed he was in possession of the current numbers of Tit-Bits and Answers, and that these papers paid the sums promised by them to the person selected by the editors as the next of kin of deceased. The question now arises whether the passages in the papers referred to import that the person who received the money did so on her own account or as trustee for the whole next of kin. I think it is not doubtful that according to the intention of the proprietors of the papers, the editors were to select the persons to whom the money was to be paid, and that such selection was made after full and proper inquiry, the choice falling on the person who was considered most in need of the money. The money was paid to that person, and the discharge granted by her was a full and sufficient discharge of the obligations on the part of the newspapers to pay the money—if any such obligation existed, regarding which I have, as I have said, considerable doubt. And I am clearly of opinion that she received the money on her own account, and not as trustee for the whole next of kin. This follows from the judgment in the case of Newnes, where the Court upheld the selection made by the editor of the paper even though the person nominated was not strictly the next of kin of the deceased, and where I consider it to have been decided that the person chosen was entitled to the money for her own use. But even apart from the case of Newnes, I am of opinion that the defender is absolutely entitled to the money which has been paid to her, and that the judgment of the Lord Ordinary is right.

Lord Trayner.—The main argument urged for the reclaimers is that this money which was paid to Miss Hunter was in bonis of the deceased brother, and therefore that as he died intestate it falls to be divided among his next of kin. Now, if anything in respect of the alleged contract of insurance was in bonis of the deceased it was only an obligation by the insurers. If so, then the next of kin may have an action against the insurers, but they can have no claim against the present defender, who was debtor in no obligation, nor can they claim from her anything that the insurers were pleased to give her. The claim on the part of the next of kin against the insurers (if it exists) would not justify a claim against the defender or a decree against her. The next point urged is, that although the defender got the money on terms that made it her own so far as the insurers were concerned, she got it on terms which made her a trustee for its distribution among the next of kin of the deceased. That depends upon the contract on which the money was paid, whether it was or was not received on terms which made the defender a trustee. Whether there was an enforceable contract between the deceased and the proprietors of the newspapers is a matter on which I express no opinion. It was not argued to us, but I assume for the moment that there was such a contract. But if so what was the contract? It is expressed in the advertisement from which alone it can be gathered, and is to the effect that the proprietors of Answers would pay £1000 to the person adjudged by the editor to be the next of kin of any person killed in a railway accident, and having the current number of the paper in his or her possession at the time. I need not refer to the advertisement in Tit-bits, because it is practically to the same effect. The advertisements go on to say—“The persons who shall be adjudged by the editor of Answers to be the next of kin of the deceased shall be the only person or persons entitled to receive and give a valid discharge for the money.” It is suggested that that only means that it is left to the editor of the newspaper to select from among the next of kin one who may give him a good discharge, leaving the question as to whom the money belongs to be settled among the next of kin. I am unable to read the contract in any such way. The words I have quoted above do not mean that the person selected is to be the only person entitled to give a good discharge, but that the person adjudged by the editor to be the deceased's next of kin is to be the only person entitled to claim the money, to receive it, and to give a good discharge. Here the editor, having the whole circumstances before him, including the fact that there were other next of kin, adjudged that the defender was the person entitled to claim the money, to receive it, and to give a discharge. I repeat what I said in the case of Law v. Newnes, that if the editor was proved to have acted in mala fides some remedy would be found. But in the present case there is no suggestion of mala fides; the editor seems to have acted on intelligible and reasonable grounds. He made full inquiry into the circumstances and found that Miss Hunter resided with her deceased brother, and, as he says, that she had been to a large extent dependent on the deceased man for her support, and was the principal sufferer by his death.

I think the Lord Ordinary's judgment here is well founded, and also that it is in entire accordance with the decision in Law v. Newnes .

Lord Moncreiff.—I am of the same opinion. If the editor of Answers had a power of selection, there is an end of the question; because the narrative of the case published in his paper shews that, in the full knowledge of the existence and claims of other next of kin, he selected Miss Hunter not as a trustee but as an individual; and that he favoured her claim because she was the principal sufferer by the death of the deceased. If, on the other hand, the editor acted ultra vires and not in good faith, then I doubt whether the pursuers have any claim against Miss Hunter. They may, but I greatly doubt it, have a right of action against Answers. But, if they have any legal claim, it can only be against that paper, because, after full inquiry, the sums in question were paid to Miss Hunter for her own use alone.

On the whole matter, in accordance with the decision of the case of Law v. Newnes, my opinion is that the editor had an unqualified power of selection, provided he exercised it in bona fide; and it is not suggested that he acted otherwise.

7 F 136

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.


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