Aitken v. Gourlay [1903] ScotLR 40_398 (04 March 1903)

Aitken v. Gourlay [1903] ScotLR 40_398 (04 March 1903)

A mother whose husband has been divorced for desertion and whose whereabouts are unknown does not have title to sue for damages for the death of their legitimate child while the father is presumed alive; divorce and desertion do not transfer the right to sue from the father to the mother unless the father renounces or is proven dead.

Citation
[1903] ScotLR 40_398
Parties
Pursuer/appellant: Mrs Janet Brand or Aitken; Defender/respondent: William Gourlay; Defender/respondent: Thomas M'Nab
Jurisdiction
Scotland
Judgment Date
04 March 1903
Procedural Posture
Civil Action for Damages / Appeal From Sheriff Court to Court of Session Inner House Second Division
Outcome
appeal dismissed; plea of no title to sue sustained; action dismissed
Legal Topics
Title to Sue, Damages for Death of Child, Parental Obligations After Divorce, Presumption of Life, Onus of Proof
Family Law Delict/tort Law Procedural Law Title to Sue Damages for Death of Child Parental Obligations After Divorce Presumption of Life Onus of Proof

Case Brief

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Parties

Mrs Janet Brand or Aitken

Pursuer/appellant

William Gourlay

Defender/respondent

Thomas M'Nab

Defender/respondent

Procedural Posture

Civil Action for Damages / Appeal From Sheriff Court to Court of Session Inner House Second Division

Legal Issues

  1. 1 Whether a mother divorced from and deserted by the father has title to sue for damages for the death of her legitimate child when the father's whereabouts are unknown and presumed alive
  2. 2 Effect of divorce and desertion on parental rights and obligations to sue for reparation

Ratio Decidendi

A mother whose husband has been divorced for desertion and whose whereabouts are unknown does not have title to sue for damages for the death of their legitimate child while the father is presumed alive; divorce and desertion do not transfer the right to sue from the father to the mother unless the father renounces or is proven dead.

Court Disposition

appeal dismissed; plea of no title to sue sustained; action dismissed

Orders

  • Judgment of the Sheriff affirmed
  • Appeal dismissed