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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pollock v. Mair [1901] ScotLR 38_250 (10 January 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0250.html Cite as: [1901] SLR 38_250, [1901] ScotLR 38_250 |
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Page: 250↓
[Sheriff-Substitute at Wigtown.
In an action of damages for wrongous dismissal brought in a Sheriff Court by an agricultural labourer against his employer, the pursuer craved decree for £80 as damages for “loss of wages, and loss of character and reputation.” He averred no separate or specific case of slander or defamation, but he made a detailed statement as to the wages which he would have earned had he not been dismissed, and which he alleged would have amounted to £56. The case having been appealed for jury trial, the Court, in respect that the pursuer's claim was mainly for loss of wages, and also in respect of the local character of the case, refused the appeal, and remitted the case for proof in the Sheriff Court.
James Pollock, yearlyman, Killantrae, Wigtownshire, brought an action of damages in the Sheriff Court at Wigtown, against John Mair, farmer at Killantrae, in which he craved decree for payment of £80.
In this action Pollock made the following averments—“(Cond. 1) Pursuer has been employed as a yearlyman by defender for some years back, and some time prior to Whitsunday 1900 he and defender entered into a verbal agreement whereby pursuer was to be engaged by defender as a yearlyman, to do all the work usually performed by yearlymen, from Whitsunday 1900 to Whitsunday 1901, and occupy a house at Killantrae. He was further bound to supply two milkers, one of whom—pursuer's cousin Elizabeth Pollock—was to be bound to do out door work for the half-year ending 28th November next, and the other of whom (Janet Pollock) was to get constant day's work during the whole period to Whitsunday 1901 (the time occupied at harvest in each case not to be included). (Cond. 2) In return for these services defender bound and obliged himself to pay pursuer at the rate of 12s. 6d. per week, and further give him three tons of coal and two carts of potatoes. The wages to be given to his milkers were to be 3s. per week for milking, the said Elizabeth Pollock to get 7s. 6d. per week for out-door work, except during harvest, for which she was to get £3, and the said Janet Pollock was to get 1s. 3d. per day for each day she was engaged, except during harvest, for which she was to get £3, 10s. (Cond. 4) On Friday 21st September while pursuer, the said Elizabeth Pollock, and Janet Pollock were all busily engaged in the stackyard at Killantrae aforesaid, at harvest work, the defender approached them, and without
Page: 251↓
justifiable cause of any kind, illegally, unwarrantably, and in breach of his contract, dismissed them from his service, and ordered them to refrain from further work and leave his stackyard. Although he was thereupon informed that they desired to fulfil their engagement, he persisted in ordering them away and forced them to leave, and they have thus suffered and will suffer loss and damage to the extent claimed, through loss of wages, and loss of character and reputation. Pursuer has always been willing to perform the contract entered into by him with defender. (Cond. 5) Pursuer is entitled at anyrate under the contract condescended on to the sums in the subjoined account, being the wages payable for the period of engagement and unpaid by defender:— Sum of wages due from 28th May 1900 to 17th September
at 12s. 6d. per week
£10
0
0
Deduct £8, being sum lifted at the rate of 10s. per week
8
0
0
£2
0
0
Wages due from 17th September to 28th May 1901, at the rate of 12s. 6d. per week
23
2
6
3 tons of coal (24 cwt.) at 26s. per ton (20 cwt.)
£4
13
2
Deduct r ton coal
1
11
2
3
2
0
2 carts potatoes (32 bus.) at 1s. 3d. per bus.
2
0
0
£30
4
6
Harvest wages
1
10
0
£31
14
6
Janet Pollock.
Wages due from 3rd September to 28th May 1901, at 1s. 3d. per day
£14
12
6
Deduct one-half on account of wet weather and want of work
7
6
3
£7
6
3
Wages for milking due from 15th September to 28th May 1901, at 3s. per week
5
11
0
Harvest wages
3
10
0
l
days' work at steam-mill as agreed 1 2 0
3
0
6
10
3
Elizabeth Pollock.
Wages due for harvest as agreed
£3
0
0
Wages due from 22nd September to November 1900, at 7s. 6d. per week
3
7
6
Wages due for milking from 15th September to 28th November 1900, at 3s. per week
1
10
0
1
days' work at steam-mill as agreed 1 2 0
3
0
8
0
6
James and William Pollock.
1 day at steam-mill, at 1s. 6d. each
0
3
0
£56
8
3”
The defender averred that the dismissal was justifiable.
On 20th November 1900 the Sheriff-Substitute ( Watson) allowed a proof. Pollock appealed to the Court of Session for jury trial.
Argued for the respondent—the case should be sent back for proof in the Sheriff Court. There was no doubt that the Court had the power to send it back—( Tosh v. Ferguson, October 27, 1890, 21 R. 55), and this was eminently a case in which that power should be exercised— Bethune v. Denham, March 20, 1886, 13 R. 882: Mitchell v. Sutherland, January 23, 1886, reported in a note to Bethune.
Argued for the appellant—The case was one suitable for a jury. When an appeal was made from the Sheriff Court for jury trial, it should be considered as if the action had been commenced in the Court of Session— Crabb v. Fraser, March 9, 1892, 19 R. 580, per Lord President. So regarded there was really no reason for refusing jury trial except that the sum claimed was small. That was not a sufficient ground— Willison v. Petherbridge, July 15, 1893, 20 R. 976; Mackintosh v. Commissioners of Lochgelly, November 3, 1897, 25 R. 32; Jamieson v. Hartil, February 5, 1898, 25 R. 551.
Page: 252↓
The Court refused the appeal, and remitted the case to the Sheriff-Substitute to proceed in terms of his interlocutor of 20th November.
Counsel for the Pursuer and Appellant— M'Lennan. Agent— Robert Broatch, L.A.
Counsel for the Defender and Respondent— Craigie. Agents— John C. Brodie & Sons, W.S.
