Scottish Court of Session Decisions

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Cite as: [1893] ScotLR 30_851, [1893] SLR 30_851

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, July 15. 1893.

30 SLR 851

Willison

v.

Petherbridge.

Subject_1Process
Subject_2Appeal for Jury Trial
Subject_3Judicature Act 1825 (6 Geo. IV. c. 120), sec. 40
Subject_4Reparation — Dismissal of Apprentice.
Facts:

Held that an apprentice who had raised an action against his master in the Sheriff Court for £50 for alleged wrongous dismissal in breach of his indenture, and had afterwards appealed to the Court of Session for jury trial under the 40th section of the Judicature Act, was entitled to have his case tried by a jury, no special cause to the contrary having been shown.

Headnote:

Upon 28th October 1892, John Willison, Broughty Ferry, was by indenture apprenticed for five years to James Petherbridge, dental surgeon, Dundee, but upon 14th February 1893 was dismissed for alleged failure to fulfil the duties and obligations incumbent on him under his indenture.

In March 1893 he brought an action in the Sheriff Court at Dundee against Mr Petherbridge for £50 as damages for illegal dismissal in breach of his indenture, that being the penalty to be paid by either party failing to fulfil the contract. In May 1893 he appealed to the Court of Session for jury trial, and submitted an issue in ordinary form.

The defender argued that jury trial should not be granted (1) because of the trifling nature of the claim, and because the witnesses were all in or near Dundee— Bethune &c., v. Denham, January 6, 1886, 13 R. 882, and case of Mitchell v. Sutherland there referred to; Nicol v. Picken, January 24, 1893, 20 R. 288; (2) because this was not merely a case for assessing damages, but involved the construction of a legal document.

Argued for appellant—(1) The sum sued for was above that fixed by statute, which was £40. The claim was not a trifling one, for it implied vindication of character. He was entitled to jury trial unless some special reason could be adduced to the contrary, which had not been done— Hume v. Young Trotter & Company, January 19, 1875, 2 R. 338; Mitchell v. Urquhart, February 9, 1884, 11 R. 553; Crabb v. Fraser, March 8, 1892, 19 R. 580; (2) there was nothing unusual in the terms of the indenture involving complicated questions of law. It was a case very suitable for a jury — Stewart v. Crichton, March 15, 1847, 9 D. 1042.

At advising—

Judgment:

Lord President—I think that this case should go to a jury. It is an action of damages, and the fact that the sum claimed is only £50 is not of itself sufficient cause for keeping it away from a jury. No doubt it involves construction of a contract, but a contract of a very simple nature. There is nothing unusual in the terms of the instrument constituting the relation of master and apprentice. The facts are of a

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familiar description, and may well be submitted to a jury.

Lord Adam—This is an action of damages, and the Legislature says that such cases arising in this Court are to go to a jury unless special cause be shown for this not being done, or the parties agree otherwise. From the fact that such cases arising in the Sheriff Court may be appealed to this Court for jury trial, we must take it that the view of the Legislature still is that actions of damages of the requisite amount should be tried by a jury. That amount is fixed at £40, and therefore the fact that this is a claim for only £50 is not per se sufficient ground for not sending it to a jury.

Lord M'Laren—The last case in which we considered the question of dispensing with jury trial was an action of damages for assault. We were then all of opinion that in cases of quasi-delict the pursuer, or for that matter the defender if he wished it, was entitled to jury trial. In actions for breach of contract like the present we have a freer hand. There may be cases of breach of contract (especially those arising out of maritime contracts, where the amount of damage, if any, is often a matter of calculation, there being no dispute as to the facts) where we should send the case for proof to the Sheriff, or a judge, without the assistance of a jury, these not being properly and in substance actions of damages. This is a claim of damages for breach of the whole contract, and the damages to be awarded, if any, are just what a jury may think proper. I am therefore for sending it to a jury.

Lord Kinnear—I am of the same opinion. This is an action of damages, and the pursuer is entitled to jury trial unless special cause is shown to the contrary. The slenderness of the amount claimed is not enough, because the Legislature has fixed the amount which determines whether a case may be brought here for jury trial or must be tried by the Sheriff in his own Court. The amount claimed here is above the limit laid down, although not much above it, and the circumstances are eminently suited for a jury.

The Court approved the issue proposed.

Counsel:

Counsel for Pursuer and Appellant— Orr— Ralston. Agents— George Inglis & Orr, S.S.C.

Counsel for Defender and Respondent— Dewar. Agents— White & Nicholson, S.S.C.
1893