Scottish Court of Session Decisions

This was an action of damages for wrongous dismissal at the instance of Hugh Thomson, coachman, against his mistress, Mrs Stewart of Logie House, Elgin. The ground of dismissal was admitted by the pursuer, and was that in spite of previous warning, the pursuer had driven in the defender's landau a gamekeeper and a crofter on the estate of Dunphail from Forres to Logie.

At the proof Mrs Stewart deponed that she had dismissed the pursuer for driving these people, and that she had warned him before not to carry people in her carriage, and that she had also said the carriage was not to be used for any other purpose but her own.

The Sheriff-Substitute ( Rampini), on 17th December 1887, found that the pursuer had been guilty of express and wilful disobedience, and that the defender was entitled to dismiss him,

Page: 542↓

and that the dismissal was justifiable in law.

“ Note.—…The pursuer will no doubt think that Mrs Stewart has acted very inconsiderately—not to say harshly—by him in dismissing him because he gave a couple of friends a lift in one of his mistress's carriages. No one can prevent the servant thinking so if he pleases, but the law will not sanction any such opinion. If the mistress's order was a lawful one—as undoubtedly it was here—the servant was bound to obey it whatever might have been his own views as to its reasonableness or unreasonableness. Moreover, whether it was or was not the first occasion on which he had offended in this way, there can be no doubt that the servant had been previously warned that such conduct would not be permitted. This added greatly to the offence. It aggravated the wilful character of the disobedience, and to quote the words of Lord Fraser, in his work on Master and Servant, ‘where a servant deliberately violates his master's orders, or refuses to obey them when given, he is clearly guilty of the grossest breach of contract.’ That is what, in the opinion of the Sheriff-Substitute, the servant has done here, and it is for this that he assoilzies the defender from the conclusion of this petition.”

The pursuer appealed, and argued that there was not sufficient proof of such express previous order as would make this an act of disobedience. At most the fault was a venial one, and none but a harsh mistress would have dismissed her servant for it. It was not such an act of wilful disobedience as entitled the defender to dismiss him.

The defender replied—She had in point of fact previously forbidden him to use her carriage as he had done, and she was quite entitled to dismiss him for what was a wilful act of disobedience to her express orders.

At advising—