Scottish Court of Session Decisions

Mrs Martha G. Breeze or Mackenzie brought this action against the Cluny Hill Hydropathic Company, Limited, in which she sued for £400 damages. (At the same time she raised a separate action against Mr Robertson, mentioned infra, in which the Lord Ordinary allowed an issue in which she obtained an award of damages.)

She averred—“(Cond. 2) On or about 19th August 1906 the pursuer was residing at the defenders' hydropathic, Forres, owned by the defenders, who are a limited company. The manager thereof at said date was Thomas M'Nair, who was entrusted by the defenders with the management of the hydropathic, and the supervision of the comfort of the guests in the defenders' hydropathic. (Cond. 3) Late in the evening of the date in question the defenders' said manager went to the recreation room, where pursuer was, and requested her presence in his private room, saying that a lady who was ill wished to see her, and in accordance with the said request the pursuer went to the said private room. The pursuer went to the said room by request of the said Thomas M'Nair, believing, as was the fact, that in making the said request he was acting as the defenders' manager. (Cond. 4) When the pursuer arrived in the said private room she found there a Mr and Mrs Robertson, of 2 Lilybank Gardens, Hillhead, Glasgow, who were her fellow-guests in the Hydropathic. The said Mrs Robertson had for some reason or another unknown to the pursuer conceived an ill-will against her. There were also present Mrs M'Nair, wife of the said Thomas M'Nair, and the said Thomas M'Nair. The pursuer was detained for a considerable period against her will in the said private room, and an assault was committed upon her by the said Alexander Robertson. The said Alexander Robertson also slandered her by calling her a low woman, and alleging she had previously caused disturbances ‘here.’ The pursuer endeavoured to leave the manager's room. She put her hand on the handle of the door, and the said Alexander Robertson then stepped between her and the door, and struck her hand from the handle. Mr and Mrs Robertson then both placed themselves against the door to keep it shut. The pursuer then pointed out to the defenders' manager that she was being forcibly detained in the said room, and asked him to see that she was allowed to leave, but this the said manager refused to do. The said manager, for some fifteen minutes, then aided and abetted the Robertsons in preventing the pursuer from leaving the said room in manner aforesaid. The said manager neither ordered nor even requested the Robertsons to let the pursuer out, nor did he ring the bell or take any other steps open to him to have the pursuer's detention ended. Had the defenders' manager requested the Robertsons to allow the pursuer to leave the room the pursuer believes and avers they would have done so. Had the manager summoned assistance by ringing the bell, or in any other way, assistance would have been forthcoming and the pursuer's detention ended. Although the pursuer was anxious to leave the said room, and so expressed herself to the defenders' manager, she was nevertheless detained and prevented from leaving the said room for a considerable period (about fifteen minutes) by the said manager, who said he would not allow her to leave the room till she had apologised to Mrs Robertson for slamming a door in her face, a thing she, the pursuer, had never done.… (Cond. 5) In asking pursuer to go to his private room, and in detaining her there against her will as aforesaid the defenders' manager was acting within the scope of his empleyment, and in the supposed furtherance of the defenders' interests. He had no right in the circumstances to induce the pursuer to go to his room when he knew as he did that the Robertsons had an ill will towards

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her, and that she would be unprotected, and he was bound to have at once seen that she, the defenders' guest, was allowed to leave the room when she wished to. He failed in his duty, and along with Robertson and his wife detained her in the said room for a considerable period. Such detention was illegal and improper, and the defenders are liable therefor to the pursuer for the loss, injury, and damage occasioned thereby. (Cond. 6) Through the illegal actings of the defenders' servant as above condescended on the pursuer was illegally detained for a considerable period in the defenders' room, and thereafter subjected to assault and slander by the illegal and improper actings of the defenders' said manager in inviting her into the said private room, and thereafter allowing her to be detained there against her will. By the said detention the pursuer suffered in her feelings and health, and was subjected to great indignity, and the matter soon became known in the establishment.”

The pursuer pleaded—“(1) The pursuer having suffered loss, injury, and damage through the wrongous and illegal actings of the defenders' servant as condescended on, decree should be granted as craved. (2) The defenders' servant, acting within the scope of his authority from the defenders, having wrongously induced the pursuer to enter his private room, and thereafter having wrongfully detained the pursuer there as condescended on, decree should be granted as craved.”

The defender pleaded, inter alia—“(2) The pursuer's averments are irrelevant, and insufficient to support the conclusions of the summons.”

On 10th January 1907 the Lord Ordinary ( Salvesen) found that the allegations of the pursuer were not relevant and sufficient to support the conclusions of the summons, and decerned.

Opinion.—“The pursuer of this action avers that on 19th August 1906 she was a guest in the hydropathic belonging to the defenders, that on the evening of that day she was summoned by the manager to his private room, and that when she arrived there she was slandered and assaulted by two fellow guests—Mr and Mrs Robertson. She has already raised an action against these persons in which issues have been adjusted—there being no question of the relevancy of her averments as against them. She maintains, however, that she has a separate ground of action against the present defenders on the ground that their manager detained her in the room against her will for a considerable period (about fifteen minutes). She avers that in doing so he was acting within the scope of his employment and in the supposed furtherance of the defenders' interests.

“The injury which the defenders' manager is said to have done to the pursuer is so small as to be almost microscopic. It is not said even in the amended record that he laid hands upon her or that he in any way actively contributed to her detention in the room. This is part of her grievance against Mr Robertson, who is said to have stood against the door and prevented her opening it. The complaint against the manager seems rather to be that he did not intervene to protect her against the Robertsons by ringing the bell or otherwise summoning assistance, or by requesting the Robertsons to permit her to leave. It is not suggested that he could thereby have prevented the alleged assault, but only that he might possibly have shortened her detention in the room by some minutes. Even against the manager, therefore, it does not appear to me that it would be possible to construct a relevant case. It follows that if there can be no action against the servant because of his non-intervention in the quarrel between the pursuer and the Robertsons there can be no possible claim against his employers.

There is, however, another and separate ground on which I think that the defenders are entitled to be assoilzied. It was decided in the case of Poulton, L.R., 2 Q.B. 534, that the scope of a servant's authority is always limited to such acts as the employers could lawfully do themselves. For a mistake or excess in committing such an act by a servant his employer may well be held responsible, but not for an act which the employers cannot be supposed to have authorised, because they had, no authority to do it themselves. I assume that it is part of the duty of a manager of a hydropathic to attend to the comfort of the guests as the pursuer avers, but it would be odd if I were required to hold that this impliedly authorised him to be a party to the detention of one guest in order to gratify the ill-will of another. The pursuer was unable to cite any authority for such a novel proposition. The only case referred to was that of Bryce v. The Glasgow Tramway Company, 6 S.L.T. 49. It has in my opinion absolutely no application. The act which the servant in that case was alleged to have done in a careless and reckless manner was an act which it was his duty towards his employers and in their interests to do, and accordingly the action was well directed against his employers.

I shall accordingly assoilzie the defenders, and I have the less hesitation in doing so as it appears to me to be plainly in the interests of the pursuer that she should not be embarrassed with a second action for damages arising out of the selfsame species facti as have already been remitted for trial by a jury. If she succeeds in that case she will recover full compensation for all injury that she has suffered; if she fails it is scarcely conceivable that she could recover against the present defenders.”

The pursuer reclaimed, and argued—The action was relevant. The averments showed that the manager was engaged, not in a private quarrel but upon matters connected with hydropathic business, and it was settled law that a master was liable for everything done by his servant wrongously or the reverse, provided it was done in the course of his service or employment— Citizens Life Assurance Company v. Brown,

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[1904] AC 423, Lord Lindley at 427–428, the theory of the law being that a master, by putting his servant in a position which enables him to act in a certain way, is responsible, although the servant may in fact have acted wrongly and in a manner the master could not expressly have approved— Limpus v. London General Omnibus Company, 1862, 1 H. & C. 526; Ward v. The General Omnibus Company, 1873, L.J., 42 C.P. 265; Dyer v. Munday, [1895] 1 QB 742; Wood v. North British Railway Company, February 14, 1899, 1 F. 562, 36 S.L.R. 407; Ellis v. National Free Labour Association, May 12, 1905, 7 F. 629, 42 S.L.R. 495; Maxwell v. Caledonian Railway Company, February 5, 1898, 35 S.L.R. 449; Bryce v. The Glasgow Tramway and Omnibus Company, June 14, 1898, 6 S.L.T. p. 49. The Lord Ordinary had completely misapprehended Poulton v. London and South-Western Railway Company, 1867, L.R., 2 Q.B. 534. The defenders' argument, based on the maxim de minimis, was fallacious. If a wrong had been committed the pursuer was entitled to ask a jury to assess the damage.

Argued for the respondents—The action was irrelevant. There were two classes of case in which an employer might be sued for an act done by his servant— first, where the action was laid upon a contract made by the servant on behalf of the master; second, where the action was laid upon a wrong committed by the servant. In the former case the presumption was against the master, and he was prima facie liables in the latter (the case here) the presuration was in his favour. To overcome the presumption in the master's favour and make a relevant case it was necessary to aver (1) facts from which it could be inferred that the act was done in the course of his employment or service; (2) facts showing that the act which was done was for the master's benefit. There were no such facts here. The pursuer's averments showed that the whole thing was a private quarrel in which the manager had taken a side without any possible benefit to his employers, The following cases were founded on— Poulton, cit. sup.; Wardrope v. Duke of Hamilton, June 24, 1876, 3 R. 876, 13 S.L.R. 568; Lundie v. MacBrayne, July 20, 1894, 21 R. 1085, 31 S.L.R. 872; Gillespie v. Hunter, May 28, 1898, 25 R. 916, 35 S.L.R. 714. Further, however, the pursuer had already, in her action against Robertson, obtained damages covering the whole incident, which she was not entitled to split up into different actions— Hassan v. Paterson, June 26, 1885, 12 R. 1164, 22 S.L.R. 775; Ferguson v. Colquhoun, July 19, 1862, 24 D. 1428. Lastly, the whole affair was trifling: de minimis non curat prœtor.