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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Merryton Coal Co. v. Anderson [1890] ScotLR 28_142 (9 December 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/28SLR0142.html
Cite as: [1890] SLR 28_142, [1890] ScotLR 28_142
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[
v.
Facts:
The miners employed in a coal mine appointed a check-weigher in terms of the Coal Mines Regulation Act 1887. The mine-owners became dissatisfied with the check-weigher, and dismissed their miners who had appointed him, and only re-engaged them on the stipulation that they would not appoint him as check-weigher. The miners on their re-employment did not reappoint him. Held that the mine-owners were entitled to interdict against him from entering their colliery premises, as his employment fell when the persons who made it ceased to be employed at the mine.
The Coal Mines Regulation Act 1887, section 13(1), provides—“The persons who are employed in a mine, and are paid according to the weight of the minerals gotten by them, may at their own cost station a person (in this Act referred to as a ‘check-weigher’) at each place appointed for the weighing of the mineral, and at each place appointed for determining the deductions, in order that he may, on behalf of the persons by whom he is so stationed, take a correct account of the weight of the mineral or determine correctly the deductions, as the case may be… . (4) If the owner, agent, or manager of the mine desires the removal
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of a check-weigher on the ground that the check-weigher has impeded or interrupted the working of the mine, or interfered with the weighing, or with any of the workmen, or with the management of the mine, … he may complain to a court of summary jurisdiction, who, if of opinion that the owner, agent, or manager shows sufficient prima facie ground for the removal of the check-weigher, shall call on the check-weigher to show cause against his removal. (5) On the hearing of the case the court shall hear the parties, and if they think that at the hearing sufficient ground is shown by the owner, agent, or manager to justify the removal of the check-weigher, shall make a summary order for his removal, and the check-weigher shall thereupon be removed.” Andrew Douglas Brand and Wallace Thorneycroft, coalmasters, were the sole partners of the Merryton Coal Company, Glasgow, and lessees and occupiers of collieries at Merryton, near Larkhall.
About October 1889 the miners in the employment of the company at their colliery known as No. 1 Merryton Pit, Larkhall, appointed John Anderson as check-weigher for them in terms of the Coal Mines Regulation Act 1887.
The Merryton Company became dissatisfied with Anderson in his capacity of check-weigher, and upon 5th August 1890 they presented an application to the Sheriff at Hamilton, in terms of the Act, to have him removed from his position. The Sheriff declined to remove him on the evidence which had been led.
The miners in this pit were employed subject to immediate termination of the contract of service in the option of either party.
Upon 18th August 1890 the company posted up at the pithead the following notice—“Every collier working here is hereby formally dismissed from our employment. All may consider themselves re-engaged on the conditions that they do not appoint John Anderson as their check-weigher. All other conditions of employment to remain the same. Those men who go down to-morrow, or on any future day, do so on the distinct understanding tha they agree to the above conditions of employment. John Anderson will not be allowed on the ground again. The graith of those who decline to work under these conditions will be sent to the surface.” A number of the miners resumed work on these conditions, and Anderson was not again re-elected. No check-weigher was elected until 27th October.
Upon 19th August, and again upon 2nd October, Anderson attended at the pithead and endeavoured to act as check-weigher. The company and the individual partners presented a note of suspension and interdict against Anderson, to have him interdicted from entering or trespassing upon any part of the lands and premises occupied by their collieries.
Upon 18th November 1890 the Lord Ordinary ( Trayner) granted interdict as prayed for, and found the respondent liable in expenses.
“ Opinion.—The respondent was check-weigher at one of the complainers' pits, and was appointed to that office by the miners there employed under the powers conferred on them by the Coal Mines Regulation Act 1887, section 13.
The complainers were dissatisfied with the respondent's conduct, and applied to the Sheriff to have him removed, but the Sheriff dismissed their application. The complainers thereafter dismissed their miners who had appointed the respondent, and only re-engaged them on the stipulation that they would not reappoint the respondent as their check-weigher. The miners on their re-employment did not reappoint the respondent, and have (since the present proceedings were instituted) appointed another check-weigher. In these circumstances it is plain enough that the respondent has now no right to enter upon the complainers' premises as check-weigher, and he pretends to no other title authorising his presence there. I have been asked, however, by both parties to decide this case, taking the circumstances as they stood at the date of presenting the note of suspension—that is, disregarding the subsequent appointment of a new check-weigher. Taking the case in that view, I am of opinion that the complainers are entitled to the interdict which they seek.
The respondent was appointed by the miners who were at the time employed at the mine; it is only the persons ‘who are employed in a mine’ who have by statute the power of appointing a check-weigher. It appears to me that such an appointment must fall when the persons who make it cease to be employed at that mine, because (1) if on their ceasing to be employed no other miners are employed in their place, the work at the mine ceases, and there is no need of a check-weigher; and (2) if other miners are engaged in place of those who had ceased to be employed, then they in turn have right to appoint their own check-weigher. The case of Whitehead, L.R., 4 Ex. Div. 13, is not distinguishable from the present case, and I concur in the judgment there pronounced. The statute under consideration in that case was not the statute now in force. But so far as regards the present question, the Act of 1887 is only a re-enactment of the provisions of the Act of 1872.”
The respondent reclaimed, and argued—The complainers were not entitled to the interdict they asked. The respondent was the check-weigher appointed by the men, and he was entitled to be upon the ground. If the men were only formally dismissed by the placard put up at the pithead, there was no substantial dismissal, and therefore the respondent continued as their check-weigher until the men appointed another. The complainers had failed in their attempt to remove the respondent in the manner prescribed by statute, and the method employed was illegal. To permit such a course would enable any coalmaster to defeat the Act, and remove a check-weigher who was obnoxious to him for looking after the interests of the miners. The case of Whitehead
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Counsel for the complainers was not called on.
The Court adhered.
Counsel for the Appellant— Rhind— A. S. D. Thomson. Agent— Wm. Officer, S.S.C.
Counsel for the Respondents— C. S. Dickson. Agents— W. & J. Burness, W.S.