v. Summerlee

agree with your Lordship that this case is distinguishable from that of M'Callum, 1909 S.C. 227. As regards the case of King, 1910 S.C. 43, it too has no application, because although there was a certificate from a medical referee there, all that was held was that it did not bar the workman, when subsequent proceedings were taken by him for an award of compensation in respect of supervening incapacity, from proving that he had become incapacitated as the result of the original accident. Accordingly, that case is entirely consistent with the judgment which we now pro

nounce.

LORD GUTHRIE-I agree. In the ordinary case the first medical report usually finds incapacity; in this case the first medical report which we have finds capacity. It seems to be clear that when the employer, following on that report, presented an application for review, it was sufficient for him to table that report as proof of capacity existing at its date. The appellant was quite entitled to rejoin that the capacity had subsequently ceased, and that it had ceased on account of some reason connected with the accident. The Sheriff's question assumes that the onus lay on the appellant to prove that the capacity referred to in the doctor's report had ceased, and only puts to us the question whether, assuming that onus to have been discharged, the fur ther onus of proving that the supervening incapacity was due to the accident was also on the appellant. It appears to me, on a consideration of the statute, and in particular of the words of the first section, that the workman is bound, as a condition of claiming compensation, to connect the incapacity from which he suffers with the accident which arose out of his employment, and that this is so whether the question arises when the claim is first made or in subsequent proceedings. I therefore entirely concur in the judgment proposed.

The LORD JUSTICE CLERK and LORD ARDWALL were absent.

The Court answered the question of law in the affirmative.

Counsel for the Appellant-Morison, K. C. -Black. Agents-Macpherson & Mackay, S.S.C.

Counsel for the Respondents - Horne, K.C.-Strain. Agents-W. & J. Burness, W.S.

Wednesday, June 7.

SECOND DIVISIO N.

[Sheriff Court at Inverness. MACGILLIVRAY v. THE NORTHERN COUNTIES INSTITUTE FOR THE BLIND.

Master and Servant-Workmen's Compensation Act 1906 (6 Edw. VII. c. 58), sec. 13Workman.

A blind man was injured while employed in the industrial department of an institute for the blind. This department was supported partly by charitable contributions received by the institute. The institute gave the man, in respect of his services, board, lodging, and 5s. a month, and received on his account charitable and parochial assistance which came to a few pounds less than the amount it expended on him. Held that the man was a workman within the meaning of the Workmen's Compensation Act 1906.

Master and Servant - Workmen's Compensation Act 1906 (6 Edw. VII. cap. 58), First Schedule, 1 (b) - Compensation Amount.

In an arbitration under the Workmen's Compensation Act 1906, when the workman was paid partly in money and partly in kind by a charitable society which received parochial and charitable assistance on his account, the arbitrator stated that there was no evidence as to his weekly earnings save the statement by the officials of the institute that the money payments represented twenty per cent. of the man's earnings. The Court remitted to the Sheriff to allow compensation on that basis.

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts, sec. 13"Workman' means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing. . . .'

First Schedule (1)-"The amount of compensation under this Act shall be-(b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding fifty per cent. of his average weekly earnings during the previous twelve months... [or] . . . for any less period during which he has been in the employment of the same employer."

John MacGillivray, labourer, Inverness, having claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from the Northern Counties Institute for the Blind, Inverness, the matter was referred to the arbitration of the Sheriff-Substitute at Inverness (GRANT), who assoilized the defenders, and, at the request of the appellant, stated a case for appeal.

The following facts were proved-"The respondents are a charitable institution, whose objects are stated in their annual report for last year, and in furtherance of these objects they appeal to the charitable public for subscriptions.

"The second object of the institute is to use suitable means for training the blind in such industries as may promote their self support and for providing those requiring it with regular employment.

The industrial department of the institute was not self-supporting in the year of the report. The accounts show a deficit of £50, 14s. 5d. on the year's working, which sum had to be met from the other resources of the institute, which are derived from charity. It was proved that this department could not be successfully worked as a commercial undertaking independent of charitable aid.

"There are three classes of workmen employed in this department, and they are graded at the discretion of the foreman. The first, or learners', class receive their board, lodging, and clothing from the institute, and are paid sixpence a week. The second class, who may be compared to apprentices, receive their board, lodging, and clothing, with five shillings a month in money. The third, or journeymen, class consist of those who receive wages (varying at present from 15s. to 20s. a week according to proficiency) and provide their own board and lodging and clothing, and live where they like. There are at present six workmen in this class.

"The appellant in this case was a member of the second, or apprentice, class, and received his board, lodging, and clothing, and five shillings a month in money. The whole value of the board, lodging, clothing, and money provided by the respondents for the appellant amounted on an average to 15s. a week.

"The workmen in all three classes in so far as sui juris are free to enter and to leave the institute's industrial department, and the institute has the power of dismissing them as it thinks fit, and of selecting who shall be their workmen.

"At the time of the accident the respondents were receiving from the Parish Council of Kilmonivaig (whose pauper the appellant was) for the maintenance of the appellant the sum of 4s. a week, and also that Parish Council refunded to the institute the cost of the appellant's clothing, which amounted to £1 per annum. The respondents also received from the Donald Fraser Bequest for the benefit of the Blind in the County of Inverness a grant of £20 annually specifically on the account of the appellant.'

The Sheriff Substitute further stated -"On these facts, I held that in respect that the appellant was in receipt of parochial and charitable relief he was not a workman in the sense of the Act founded on."

The question of law was "Was the appellant a workman in the sense of section 13 of the Workmen's Compensation Act

1906?"

The case was heard on 9th March 1911, and on 18th March 1911 the Court remitted to the Sheriff-Substitute for further findings in fact.

The Sheriff-Substitute reported as follows -"(2) In the case of the first and second classes of men engaged in the industrial department, the men receive industrial training in the institute; and the institute boards them out, supplies them with clothing, and makes a pecuniary allowance as pocket-money. In both cases the aggregate value of the work done by the recipients is less than the sum expended on them, including the value of instruction, but there was no evidence of the individual work done by the appellant. When a blind workman is, in the judgment of the respondents' officials of their industrial department, able to support himself by his earnings, he is transferred to the third or journeyman class. (3)... Arrangements for contributions from the Parish Council of Kilmonivaig and from the administrators of the Donald Fraser Bequest were made, were subsisting at the date of the accident, and were continuing at the date the evidence was led, viz., 7th July 1910. There was no evidence of the average weekly earnings of the appellant beyond the statement by the respondents' officials that the sum of 5s. a month paid to each of the second or apprentice class was supposed to represent 20 per cent. of the average earnings of each member of that class."

(4)

The following additional question of law was added-"(2) If the first question be answered in the affirmative, do the average weekly earnings upon which compensation to the appellant falls to be assessed consist of (a) the whole amount paid by the respondents to or for behoof of the appellant, or (b) the said amount less the contributions received by the respondents for behoof of the appellant, or (c) the average earnings as calculated by the respondents' officials, viz., 6s. 3d. a week.

Argued for the appellant-(1) The contract between the parties was clearly one of service. The defenders carried on an industrial department, and one of their objects was to make the blind self-supporting. The present case was a fortiori of Gilroy v. Mackie, 1909 S.C. 466, 46 S.L.R. 325, and the essentials of a contract of service, freedom of contract, payment, and power of selection and dismissal, were present here. (2) Earnings in the sense of the statute meant gross earnings. In any event, the Sheriff had found as a fact that the man's earnings were 6s. 3d., and that finding was final.

Argued for the respondents - (1) The relationship between the parties was one of charity, and not of master and servant. The institute did not carry on a trade or business in the sense of the statute, and the appellant was not a workman earning wages. The appellant's status was that of an inmate of a charitable institution entitled to certain privileges and bound to perform certain duties. There was no proper locatio operis. The respondents

Trs. v. Coulson

June 9,

Friday, June 9.

SECOND DIVISION. COULSON'S TRUSTEES v. COULSON AND OTHERS.

Succession - Vesting - Vesting Subject to Defeasance-Defeasance on Either of Two Contingencies - Conditional Institution of Children of Predeceasing Beneficiary -Liferent to Widow of Beneficiary Predeceasing without Children, and Direction to Pay on her Death among Surviving Beneficiaries and Issue of Predeceasers.

A testator directed his trustees to allow his widow a liferent of his estate, and on herdeath legated and bequeathed and directed his trustees to make payment to his sons nominatim of certain specified sums, and legated and bequeathed and directed and appointed his trustees to divide and pay and make over the residue to and among his whole children nominatim, "declaring that in the event of the death of any of my said sons before the time of payment. . . leaving lawful children, I direct and appoint my said trustees to hold and apply the interest or annual produce of said legacies or shares of residue bequeathed to such deceasing son or sons for" behoof of the children, and to pay to them equally on the youngest attaining twenty-one years, and should any of my said sons die without leaving lawful issue survived by any wife he or they may marry, I direct and appoint my said trustees to pay over the interest or annual produce of said legacies or shares of residue to such deceasing son's widow during her lifetime as an alimentary provision allenarly, and upon her death I direct and appoint my said trustees to divide and pay over the fee of said legacies bequeathed to such deceasing son or sons to and among my surviving children and the issue of deceasers, share and share alike, per stirpes.

Held that the legacy and share of residue destined to each son vested in him a morte testatoris, but subject to defeasance in the event of his predeceasing the liferentrix either leaving issue or survived by a widow. John Laurie Coulson, brewer in Glasgow, and others, testamentary trustees of George Francis Coulson, brewer in Glasgow, hereinafter called the testator, first parties; (2) (a) the said John Laurie Coulson, who was a son of the testator, and (b) Frank William Coulson and others, the testamentary trustees of Frank Coulson, another son of the testator, second parties; (3) Edwin George Coulson and others, the children of the said Frank William Coulson, third parties; (4) George Francis Laurie Coulson and another, the pupil children of the deceased George Francis Coulson junior, another son of the testator, fourth parties; (5) the said John Laurie Coulson and another, the testamentary trustees of the deceased Alfred

Henry Coulson, another son of the testator, fifth parties; (6) Charles Callam Coulson, another son of the testator, sixth party; (7) William Arthur Coulson, another son of the testator, seventh party; and (8) Janetta Isabella Laurie Coulson, the testator's daughter, eighth party; presented a Special Case dealing with the testator's trust-disposition and settlement.

The testator's trust-disposition and settlement provided—“ (Eighth) Upon the death of the said Mrs Janet Isabella Laurie or Coulson, and when sufficient funds shall have been realised from my estate and be available, I legate and bequeath and direct and appoint my said trustees to make pay. ment to each of my sons, the said George Francis Coulson, Alfred Henry Coulson, and William Arthur Coulson, of a further legacy of £1500 sterling: (Ninth) On the further realisation of my said estate after the death of the said Mrs Janet Isabella Laurie or Coulson, I legate and bequeath and direct and appoint my said trustees to make payment to the said John Laurie Coulson of the sum of £1500; to the said Frank Coulson of the sum of £1500; and to the said Charles Callam Coulson of the sum of £2000; Declaring, however, that should my said estate not yield sufficient funds for payment in full of the legacies by this article bequeathed, the same shall be proportionally diminished to the extent of the deficiency: (Tenth) In the event of the foregoing legacies not exhausting the whole residue of my estate, I legate and bequeath and direct and appoint my said trustees to divide and pay and make over whatever balance may remain to and among my children, the said John Laurie Coulson, Frank Coulson, Charles Callam Coulson, George Francis Coulson, Alfred Henry Coulson, William Arthur Coulson, and Janetta Coulson; Declaring that in the event of the death of any of my said sons before the time of payment of any of the foresaid legacies or shares of residue above provided to them respectively leaving lawful children, I direct and appoint my said trustees to hold and apply the interest or annual produce of said legacies and shares of residue bequeathed to such deceasing son or sons for the maintenance, education, and upbringing of his or their lawful children until the youngest shall attain the age of twenty-one years complete, when I direct and appoint my said trustees to divide and pay over the fee of said legacies or shares of residue hereby bequeathed to such deceasing son or sons, equally among his or their lawful children or their issue. share and share alike, per stirpes; and should any of my said sons die without leaving lawful issue, survived by any wife he or they may marry, I direct and appoint my said trustees to pay over the interest or annual produce of said legacies or shares of residue to such deceasing son's widow during her lifetime as an alimentary provision allenarly, and upon her death I direct and appoint my said trustees to divide and pay over the fee of said legacies bequeathed to such deceasing son or sons to and among my surviving children and

June 9, 1911.

the issue of deceasers, share and share alike, per stirpes."

The question of law, upon which the case is reported, was-"1. (a) Did the legacies and shares of residue bequeathed to the testator's sons by the eighth, ninth, and tenth purposes of his trust-disposition and settlement vest in them a morte testatoris? Or (b) did these legacies and shares of residue vest in the testator's sons a morte testatoris, subject to defeasance in the case of such of them as might predecease the time of payment leaving lawful children? Or (c) was vesting postponed until the time of payment of the said legacies and shares of residue"?

The following narrative is taken from the opinion of Lord Dundas :-"The late Mr Coulson, brewer in Glasgow, died in 1883, leaving a trust-disposition and settlement dated in 1876. This Special Case has been brought for the determination of various questions as to the construction of certain clauses in the settlement. Mr Coulson was survived by his widow, who died in 1909, and by their whole family, which consisted of six sons and a daughter, named respectively (I shall use throughout, for the sake of brevity, the first name only in each case) John, Frank, Charles, George, Alfred, William, and Janetta. Three of the sonsFrank, George, and Alfred-predeceased their mother. The other three sons and the daughter are still alive. Frank and George left issue, who survive. Alfred was never married. The daughter is now fifty-nine years of age, and parties are agreed in stating as a fact that she is incapable of ever having a child. George had prior to his death granted a bond and assignation in security for £2000 in favour of his brother John over his whole share and interest, present, future, or contingent, in his father's estate; and Alfred had granted a similar bond in favour of John for £2030 (now reduced to £554). Each of the deceasing sons-Frank, George, and Alfred-left a settlement conveying his estate to testamentary trustees or executors. . . . I need not refer to the first five purposes of Mr Coulson's settlement, which have been duly implemented. By the sixth purpose he directed his trustees to hold the whole residue of his estate and pay the free annual produce thereof to his widow for her alimentary use allenarly; and Mrs Coulson enjoyed this liferent until her death. I do not here advert to the seventh purpose, which will require to be separately noticed at a later stage. By the eighth purpose, upon the death of Mrs Coulson, and when sufficient funds should have been realised from the estate and be available, the truster legated and bequeathed and directed and appointed his trustees to make payment to each of his sons George, Alfred, and William of a further legacy of £1500 in addition to legacies which he had left them by an earlier clause in the settlement. By the ninth purpose the truster directed that on the further realisation of his estate after the death of his widow, his trustees should pay to John £1500, to Frank £1500, and to Charles £2000, declar

ing, however, that should his estate not yield sufficient funds for payment in full of the legacies by this article bequeathed, the same should be proportionately diminished to the extent of the deficiency. It is stated in the case that the truster's estate, after setting aside the sums required to meet the legacies provided by the eighth purpose, and a provision of £3000 (to which I shall refer later) for behoof of his daughter under the seventh purpose, is insufficient to meet in full the legacies provided by the ninth purpose. The tenth purpose (which is the only other clause of the settlement requiring notice at present) is so important that I shall quote it at length (v. sup.)."

The contentions of parties were thus stated:13. The second parties contend that vesting took place a morte testatoris of the legacies bequeathed by the eighth and ninth purposes and the shares of residue bequeathed by the tenth purpose. .. . The fourth parties contend that vesting took place a morte testatoris but subject to defeasance in the case of those children who predeceased the liferentrix (Mrs Coulson) leaving issue, and that their shares pass to their issue as conditional institutes unaffected by their parents' acts and deeds, or alternatively that vesting was postponed until the death of the said liferentrix. The fifth parties contend.. that vesting of the fee of said legacies and shares of residue took place absolutely in the testator's sons a morte testatoris, or alternatively a morte testatoris, but subject to defeasance only in the case of those children who predeceased the time of payment leaving issue. . . . The third, sixth, and seventh parties contend that vesting was postponed until the time of payment."

Argued for the fourth parties-The legacies bequeathed by the eighth and ninth purposes, and the shares of residue bequeathed by the tenth, vested in the sons a morte testatoris, subject to defeasance in the case of a son predeceasing the liferentrix leaving issue. The provision with regard to a son dying leaving a widow had reference to the case of a son dying before the testator. There could be no vesting absolutely a morte, and on the ratio of Cairns' Trustees v. Cairns, 1907 S.C. 117, 44 S.L.R. 96; Wylie's Trustees v. Wylie, December 10, 1902, 8 F. 617, 43 S. L. R. 383, vesting was subject to defeasance. Alternatively, if vesting were not a morte subject to defeasance, then it must be postponed to the death of the liferentrix.

Argued for the fifth parties-The said legacies and shares of residue vested absolutely a morte. There was, to begin with, an absolute gift in favour of the sons, and unless the subsequent declaration carried that gift elsewhere, vesting took place a morte Greenlees' Trustees v. Greenlees, December 4, 1894, 22 R. 136, 32 S. L. R. 106; and if the subsequent declaration were repugnant, it would not receive effect Miller's Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L. R. 236. In the foregoing respect the case was distinguishable