Scottish Court of Session Decisions

In January 1879 William Moffat, a youth of about 15 years of age, was engaged by C. Boothby, tenant of the farm of Hyndhope, as one of his shepherds for the period from Whitsunday 1879 to Whitsunday 1880, at the yearly wage of £22, permission in addition being given to him to graze one ewe on the farm, his master also to pay for his board. At Whitsunday 1880 he remained in the service without any new agreement, and so continued till 13th November 1882, when he refused to obey an order given him on the 11th by Mr Boothby to attend to the cattle at the steading during the winter, on the ground that it was no part of his bargain to do that work, and that it was impossible for him to perform both it and his duty as a shepherd satisfactorily, and was accordingly dismissed. In this action he sued his master for £36, 8s., being a year's wages, less a sum of £5 paid to account, board wages from the day of his dismissal to Whitsunday 1883, and the value (10s.) of a sheep's grazing from 13th November to Whitsunday, on the ground that his dismissal was in the circumstances wrongous.

The defender averred that the dismissal was justifiable, and that the pursuer had been engaged to do farm work as well as that of a shepherd, his duties as such being only such as to occupy him during much of the year for about three hours a day.

A proof was led from which the following facts appeared:—When the pursuer was engaged he was informed by the defender that he would have to attend to the sheep on a hill known as the Dodhead, and assist in the operations of cutting hay and corn, and (according to defender) singling turnips, and other farm work, without specifying what work; nothing was said about cattle. He was boarded with the upper shepherd Beattie, whom he was told to consult as to the management of the sheep. Beattie was present when the pursuer was engaged, and gave evidence in this action that the duties mentioned by the defender, apart from those as a shepherd, were assistance at the corn and hay harvests. At the time of the proof he also was leaving the defender's service. In November 1882 the order was given to attend to the cattle at the steading during the winter. These cattle were ten in number and were in the sheds at the steading. This he was advised by Beattie not to undertake, because in his opinion as a shepherd it was impossible for him to attend to that work in addition to his duties as shepherd. From the time of his entering on the service he had done such work as singling turnips, herding the cattle when they were on Dodhead along with the sheep, and carrying hay to them when necessary, “turniping” the sheep at certain seasons, and cutting turnips for them at others. In 1882 the whole of Hyndhope was sown in grass, so that the pursuer had no more work at turnips. The pursuer deponed that he went over the hill, which carried twenty four score sheep, twice a day, which took three hours each time. Beattie as well as the pursuer deponed that the work of attending to the sheep could not be done in three hours. Besides those on Dodhead the pursuer had to see to two score of sheep in the parks. The defender and another farmer deponed that, except at busy seasons, three hours a day was sufficient for the work in good weather. It was admitted that at busy times, such as lambing time and the stormy weather, the pursuer's whole time would be occupied. He was told when the order to attend the cattle was given, that this would not be required of him at such times.

The Sheriff-Substitute ( Milne), after findings in fact to the effect just stated, pronounced these findings in point of law:—“Finds in point of law that there is no evidence to show that when the pursuer was engaged by the defender as shepherd he was told that he would be expected to make himself generally useful on the farm, or that any other farm duties would be required of him besides his proper duties as shepherd, than to assist at hay-time and harvest, and that the pursuer undertook to perform none other: Finds, therefore, that he was wrongously dismissed by the defender on 13th November, and that he is entitled to wages and board wages accordingly: Finds, further, that there is no evidence to show that the charge of sixpence per week for grazing his ewe on another farm, from 13th November 1882 to Whitsunday 1883, is excessive; therefore decerns against the defender for £36,8s. sterling, as concluded for.”

Page: 343↓

“Note-The pursuer and his father and Beattie all concur in saying that when the pursuer was engaged by the defender as shepherd there was no mention of farm duties which the pursuer was expected to perform other than assisting at haytime and harvest. Nor does the defender allege that there was. It is true that during the three years and a half the pursuer was in the defender's service he, as well as Beattie, did other farm work, but, as explained by Beattie, not because he was bound, but to help forward with the work. The defender had never before the 11th November asked the pursuer to attend to the cattle at the steading during the winter; and that is a duty so entirely outwith the duties of a shepherd, that in the absence of a special agreement on the part of the pursuer and of his father on his behalf, that he should do that work if required, the defender had no legal right to impose it upon him. The defender gives the pursuer a most excellent character-‘A good and willing servant, and I was unwilling to dismiss him.’ This ought to have made him hesitate before putting upon a young man, of whom he had formed so high an opinion, the disgrace of dismissal.”

On appeal the Sheriff ( Pattison) recalled the interlocutor appealed against, found that the order of 11th November was a reasonable and lawful order with which the pursuer was bound to comply, and that his persistent refusal to do so justified the defender in dismissing him from his service, therefore assoilzied the defender from the conclusions of the action.

“ Note.....When the cattle were in November 1882 removed to the steading, it was, in the Sheriff's opinion, a reasonable order to require him to continue to attend them there. He was told that this would not be required of him during lambing-time, which lasts about a month or six weeks, beginning about the 18th of April, during which time the pursuer's main duties in regard to the sheep required him to be oftener on the hill than in ordinary times. The evidence generally shews that it was not inconsistent or incompatible with the performance of his main duties as shepherd to do this. The order of course implied that he was to do so only when it did not interfere with his duties as to the sheep, as in lambing-time or during severe weather, as the defender explains. It was not as if he had been asked to act as ploughman or as groom. It is a general rule that servants in husbandry must perform any part of the labour of the farm which the master points out to them. The work required in this case did not infer any danger to the pursuer's person or belong to a different class of duties from those for which the pursuer was paid. And to the Sheriff it appears that to encourage such hair-splitting as to the duties of a young man engaged on a farm as the pursuer was would be fraught with injury both to master and servant.”

The pursuer appealed, and argued-The dismissal was wrongous inasmuch as the order to attend to the cattle was a manifest deviation from the line of the pursuer's engagement, about which there could be no doubt on a consideration of the proof-Bells Prin.sec. 176.

The defender in reply argued that the order was a reasonable one, and not outwith the general assistance in the farm operations which pursuer was bound under his engagement to give.

Authorities— Wilson v. Simon, 11th July 1844, 6 D. 1256; Hamilton v. M'Lean, Dec. 9, 1824, 3 Sh. 379.

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