Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Perthshire.

The respondent was engaged by the advocator as a farm servant from December 1864 to Martinmas 1865, at a wage of £19, 10s. On 24th April 1865, when going home from field work, he sustained certain injuries, which he thus described in his own evidence:—“Towards the end of April I was working with the foreman at the harrows. We had finished the work of the day. We both loosed about one time. We had a rein at each of the horses' heads. When I unloosed the horses, I tied up the reins and put them across the backband, and put one of the horses in a cart to go home. The foreman did the same. I took my seat on the front of the cart, and led the other horse behind the cart. I had a single rein attached to the horse behind the cart. This was the same rein which I used when working on the farm, but used double reins when off the farm. The said rein was not sufficiently long to be made a double rein. The foreman was on the front of his cart just as I was. When near home, half-way, the horse in the cart started suddenly, and ran off—started all at once. I jumped off and tried to catch my horse by the head, and the cart drove me down. When sitting on the front, the rein was not sufficiently long to come back to the cart, and was tied to the hems.” And in cross-examination he said—“I had no hold of the horse at the time, no rein in my hands. The ploughing reins were in the backband. It is not customary to put them in the horse heads when working on the farm. The reins made use of when the cart was away from the farm were the same plough lines. I was not in particular warned by defender to take care of that horse. Never told by him to use reins with that horse. He was occasionally troublesome, but not always fashious. The foreman, Walker, has told me to look after that horse, and to take care of him, as he ran away. He had ran away once before with me. Defender, when taking in the stack with no rein, or one rein, was at the head of the horse, and not seated on the cart. I could not say if the horse would have been restrained had I the plough lines in my hands.”

After receiving the above injuries, the pursuer remained at the farm until 2d May, when he went home to his father's house at Dunfermline. On 5th June, having recovered, he went to the farm and offered to resume his work. The advocator had by that time engaged another man to fill the pursuer's place, and refused to take him back. The pursuer thereupon raised an action concluding for full wages for the whole term, and board wages from 24th April to Martinmas.

The claim was resisted by the defender on the ground, inter alia, that, as the pursuer had become unfit for work, in consequence of injuries sustained through his own rashness and imprudence, he was not entitled to recover any Wages. But he tendered payment of the wages effeiring to the time for which the pursuer had actually served.

A proof having been led, the Sheriff-substitute (Barclay) found, “under the whole circumstances disclosed in the proofs, that the parties must be held mutually to have agreed to the termination of the contract of service when the pursuer, without objection on the defender's part, left Mill Earn on 2d May 1865, and that therefore the pursuer is only entitled to the wages actually earned and judicially offered by the defender.” He therefore decerned for the sum tendered, and quoad ultra assoilzied the defender, with expenses.

The Sheriff (Gordon), on appeal, altered the interlocutor, and decerned for the full money wages sued for, and for £3 in name of board wages. He held that “the defence that the pursuer's rashness and negligence caused the injury sustained by the pursuer had not been established.”

The defender advocated.