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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cowie v. Diez [1903] ScotLR 40_868 (17 July 1903)
URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0868.html
Cite as: [1903] SLR 40_868, [1903] ScotLR 40_868
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SCOTTISH_SLR_Court_of_Session
Page: 868↓
Court of Session Inner House First Division.
[Sheriff-Substitute at Glasgow.
v.
Facts:
In an appeal for jury trial in an action brought in the Sheriff Court at the instance of a stevedore against the owners of a ship, concluding for damages for personal injury resulting from an accident at Glasgow docks, the defenders admitted their liability for the accident, and the only question remaining was the amount of damages. The defenders moved that the case should be remitted for proof in the Sheriff Court. The pursuer opposed this motion on the ground that the case was suited for trial by jury, and that the amount of damages was eminently a jury question. The Court ordered issues.
John Cowie, foreman stevedore, 16 North Avenue, Govan, raised this action against Captain Manuel Diez, captain of the steamship “Rui Perez,” concluding for £300 as damages for personal injury sustained by him while working on the said ship in Glasgow harbour.
On 24th March 1903 the Sheriff-Substitute ( Balfour) allowed a proof, and the pursuer appealed to the Court of Session for jury trial.
On the motion of the defender the case was sent to the Summar Roll. The defender put in a minute admitting liability for the accident from which the pursuer's injury resulted, but not making any tender.
Page: 869↓
On the case being called, the defender argued that it should be remitted to the Sheriff Court for proof, on the ground that the sole question now remaining was the amount of damages, and that all the witnesses would be Glasgow men— Bethune v. Denham, March 20, 1886, 13 R. 882, 23 S.L.R. 456; Mitchell v. Sutherland, January 23, 1886, reported as a note to Bethune, and 23 S.L.R. 317; Nicol v. Picken, January 24, 1893, 20 R. 288, 30 S.L.R. 342; Pollock v. Mair, January 10, 1901, 3 F. 332, 38 S.L.R. 250.
Argued for the pursuer—The case should go to a jury. Appeals under the Judicature Act were in the same position as cases instituted in the Court of Session in a question of proof or jury trial— Crabb v. Fraser, March 8, 1892, 19 R. 580, 29 S.L.R. 445; Willison v. Petherbridge, July 15, 1893, 20 R. 976, 30 S.L.R. 851; Donnachie v. Thom, December 15, 1892, 20 R. 210, 30 S.L.R. 201; Rhind v. Kemp & Co., December 13, 1893, 21 R. 275, 31 S.L.R. 223; M'Intosh v. Commissioners of Lochgelly, November 3, 1897, 25 R. 32, 35 S.L.R. 50; Jamieson v. Hartil, February 5, 1898, 25 R. 551, 35 S.L.R. 450. The only ground here suggested for trial in the Sheriff Court was that the witnesses would all be local, but that had never been held to be a sufficient ground for refusing jury trial— Tosh v. Ferguson, October 27, 1896, 24 R. 54; Walker v. Knowles & Son, January 8, 1902, 4 F. 403, 39 S.L.R. 291; Dunn v. Cuninghame, July 9, 1902, 4 F. 977, 39 S.L.R. 755. The question at issue—the amount of damages—was eminently suited for jury trial.
At the close of the argument the case was continued to allow the defender to put in a tender. He tendered £60, which was refused.
At advising—
The Court ordered issues, and found the respondent liable in expenses, modified at £3, 3s.
Counsel for the Pursuer and Appellant— Watt, K.C.— Munro. Agents— Patrick & James, S.S.C.
Counsel for the Defender and Respondent— R. S. Horne. Agents— Webster, Will, & Company, S.S.C.