(1796) 3 Paton 512
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Damages. — Master and Assistant. — Dismissal. —
Circumstances in which the Court of Session awarded damages to an apothecary's assistant, for an illegal and oppressive dismissal from service, by the son of his employer, without the employer's sanction and authority. Reversed in the House of Lords.
The appellant's mother had carried on the business of an apothecary, assisted by her youngest son, James, and the respondent, who was an assistant under her son James.
The respondent, Burt's mother, was also a niece of the appellant's mother, and, upon the death of James, the son, the whole management of the apothecary business devolved upon him. In consequence, however, of Mrs. Macdonald's executing settlements disinheriting the appellant and his children, and favouring Burt and his wife, the appellant resorted to certain harsh measures, upon which was founded the present action of damages.
The summons set forth:—
“That, in the month of August 1781, the pursuer was solicited by his grand aunt to assist her son, James Macdonald, in carrying on the apothecary business, and, from the steadiness and attention he paid thereto, they found him of so great utility, that his living in the house was absolutely necessary. Accordingly, the pursuer agreed to live with them, as the infirmity and weak state of health of both Mrs. Macdonald and her son, required all the assistance in his power; and, at length, as a mark of their favour and approbation, they entrusted him not only with the management of the business, but with the management of the house affairs, in which situation he continued till the month of January 1789, when Alexander Macdonald, Writer to the Signet, eldest son of the said Mrs. Macdonald, and a few of his friends, of their own accord, after the death of the said James Macdonald, illegally and unwarrantably entered the house of the said Mrs. Macdonald, and, among other acts of violence, he, the said Alexander Macdonald, turned the pursuer to the door, without concurrence and authority of Mrs. Macdonald, although he well knew that both she and her son James, during his life, always treated the pursuer with the greatest marks of esteem and approbation, and considered his services so essential, that they used every means to prevail upon him to reject a very profitable appointment abroad; and notwithstanding Mrs. Macdonald had, after the death of her son James, expressed a wish that the pursuer should continue in her house, and conduct her business as formerly. That by this treatment of the said Alexander Macdonald, the pursuer has not only been thrown out of employment, but, from the circumstances of his former situation, has, in other respects, suffered considerable loss and damage.”
He therefore concluded “That the conduct of the said Alexander Macdonald towards him has been illegal and unwarrantable, and contrary to law and justice, and it being so found and declared, that he ought and
Feb. 3, 1792.
Nov. 28, —
A process of reduction was also raised by the respondent, to reduce a settlement executed by Mrs. Macdonald, at the last moments of her life, whereby she was made to revoke a previous settlement, leaving £100 of legacy, as well as the whole drugs, medicines, and shop utensils belonging to her, &c., to the respondent. The reasons of reduction were—undue influence, force, and fear. In the latter action, the reasons of reduction were repelled, and the defender assoilzied.
July 16, 1789.
July 8, 1790.
Nov. 29, 1792.
Feb. 13, —
Mar. 11, —
But the action of damages went on; and a proof being allowed therein, the Lord Justice Clerk, before whom the case at first came as Ordinary, pronounced this interlocutor:
“Having heard parties procurators fully, assoilzies the defender, and decerns in the absolvitor.”
His Lordship stating at same time, that, as the respondent did not so much as pretend he had entered into any contract with Mrs. Macdonald, or with the appellant, it was impossible he could be entitled to any damages, even against her representatives, for being so dismissed from the shop. On reclaiming petition, the Court remitted to Lord Dreghorn, Ordinary, ob contingentiam of the reduction, to hear parties, and to dispose of the cause. Lord Dreghorn reported the case to the Court, who pronounced this interlocutor:—
“Find the pursuer entitled to damages, modify the same to £100, and decern for payment thereof. Find the pursuer also entitled to expenses.”
On petition a proof was again allowed, upon advising which, the Court adhered to the above interlocutors. On two further petitions, and answers, the Court adhered.
Against these interlocutors the present appeal was brought, and a cross appeal by the respondent, on the score of the damages awarded him being too little.
Pleaded for the Appellant—The reduction of the settlements has been dismissed, and the latter settlement of the deceased confirmed, and consequently the idea once entertained by the Court, of giving the respondent damages equivalent to the legacy left him by the former wills, can no longer apply, and any claim of damages on account of the execution of the settlements, cannot be entertained. Even if such a claim lay on account of his services, yet that could never go further than £20 a year, for the last year he attended Mrs. Macdonald's shop,
Pleaded for the Respondent.—It was a most injurious and oppressive piece of conduct in the appellant, to turn the respondent from the house and employment of Mrs. Macdonald, upon which he entirely depended for his immediate subsistence, as well as for his future prospects in life. That dismissal was aggravated by the disgraceful and violent manner in which the appellant executed his measures. It is also aggravated by his having done so without any authority from Mrs. Macdonald, from whom the whole affair was concealed, up till the day of her death. His groundless and calumnious assertions against his mother, Mrs. Burnet, also aggravate the case, and the injury he has received. He therefore, on cross appeal, maintained that recompense for a personal injury, especially where it is attended with high consequential damages, ought to be estimated as in the case of property being injured, where the actual loss can be exactly ascertained; but the estimate of that damage ought to be made upon a complex view of the person's situation who is injured, the manner in which the injury is committed, with all the consequences attending upon it, as well as the circumstances of the person who is liable to the reparation. In considering these circumstances separately, the damages awarded by the Court below, appear far from adequate, and several of the judges were of that opinion. If the Court had given £500, instead of £100, it would have only covered the direct damage and injury which the respondent has sustained by his conduct.
After hearing counsel, it was
Ordered and adjudged; that the interlocutors complained of in the original appeal be reversed, and the appellant
Counsel: For Appellant,
For Respondent, Thomas Ershine, John Dickson, James Montgomery.