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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Cormack v. Glasgow Corporation [1910] ScotLR 493 (18 March 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0493.html
Cite as: [1910] SLR 493, [1910] ScotLR 493
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[Sheriff Court at Glasgow.
v.
Facts:
The Corporation of Glasgow, the proprietors of the tramways in Glasgow, are empowered under the Glasgow Corporation Tramways Acts 1870 and 1893 to make bye-laws, and these byelaws, inter alia, make it an offence punishable by a penalty to travel upon any car and attempt to evade payment of the fare, or having paid for a certain distance knowingly to travel beyond that distance with intent to evade payment of the additional fare. They further provide that the conductor of each car shall to the best of his ability enforce the bye-laws and prevent their breach, and make his failure to enforce, itself a breach.
In an action of damages against the Corporation of Glasgow the pursuer averred that he was a passenger in one of their cars, that when the car reached a certain station the conductor requested him to pay the sum of one halfpenny and alleged that he had travelled beyond the station to which he was entitled to travel for a halfpenny, that he refused to pay, that the conductor lost his temper, insulted the pursuer and accused him of trying to defraud the defenders, and wrongfully, maliciously, and without probable cause called a policeman and charged the pursuer with travelling on the car with intent to evade payment, and that in consequence he was cited to appear at the police court, and that after evidence was led the charge was found not proven.
Held, on a proof, that the defenders should be assoilzied—the Lord President and Lord Kinnear on the ground that the occasion was privileged and that the pursuer had failed to prove malice and want of probable cause; Lord Johnston on the ground that though the occasion was not privileged, yet since the conductor was armed with statutory authority the onus lay on the pursuer to show that he was not justified in the use of it, and that he had failed to discharge this onus.
Buchanan v. Corporation of Glasgow, July 19, 1905, 7 F. 1001, 42 S.L.R. 801, followed.
Under powers conferred by the Glasgow Corporation Tramways Acts 1870 to 1893, the following bye-laws, inter alia, were made:—“4. ( c) Any person travelling, or having travelled, in any car, who evades or attempts to evade payment of his fare, or any person who, having paid his fare for a certain distance, knowingly proceeds in any such car beyond that distance without paying the additional fare for the additional distance, and with intent to evade payment thereof, shall be liable to the penalty prescribed by these byelaws. And it shall be lawful for any officer or servant of the Corporation, and all persons called by him to his assistance, to seize and detain any such passenger whose name or residence is unknown to such officer or servant until such passenger can be conveniently taken before a magistrate, or until he be otherwise discharged in due course of law. 23. The conductor of each car shall, to the best of his ability, enforce these bye-laws and regulations, or prevent the breach thereof; and if any such conductor fails to enforce the same as aforesaid, he shall be deemed to have committed a breach thereof.”
Joseph M'Cormack, Rose Street, Garnethill, Glasgow, raised an action in the Sheriff Court at Glasgow against the Corporation of the City of Glasgow concluding for £100 damages.
The following narrative is taken from the opinion ( infra) of Lord Johnston—“The situation is this. The Glasgow Corporation tramway routes are divided in halfpenny stages. If a passenger enters a car at any point within a stage he is due one halfpenny as his fare to the end of that stage. The moment the car enters upon another stage, the passenger, if he is going on with it, is due a second halfpenny for the second stage or any part of it, and so on. The pursuer Joseph M'Cormack wished to travel by one of the Corporation cars on the Maryhill to the city route, along New City Road to the corner of Cambridge Street. If he boarded the car at the corner of Seamore Street and New City Road his fare was a halfpenny. But if he boarded it before Seamore Street his fare was a penny, for the Seamore Street
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corner was the beginning of a new halfpenny stage. The conductor believed and maintained, and still maintains, that he got in at the Henderson Street stop, which is 200 yards above Seamore Street. The pursuer maintained, and still maintains, that he got in at the Seamore Street stop. If the conductor was right he was entitled and bound to demand a penny fare, and he did so. It was refused and an altercation ensued, in the course of which the pursuer maintaining his attitude, the conductor hailed a policeman on the St George's Cross beat and gave the pursuer into custody on the charge of evading his legal fare. The pursuer was prosecuted in due course and the charge found not proven. He then raised this action of damages against the Corporation as proprietors of the tramways. “The ground of damage alleged is, that the conductor acted recklessly, maliciously, and without probable cause, and entirely from temper, in so treating the pursuer, and that the defenders are responsible for his actings; that the pursuer had paid his legal fare to the Cambridge Street stop, to which the defenders were bound to carry him; and that the conductor acted oppressively in handing the pursuer over to the police, ‘knowing as he did that pursuer (who supplied his name, occupation, and address) was a respectable and responsible citizen, and was acting in entire bona fide in contesting the fare.’”
The pursuer pleaded, inter alia—“(1) The defenders' servant,” i.e., a tramway conductor, “for whom they are responsible, having wrongfully, maliciously, and without probable cause charged the pursuer with intent to defraud, the defenders are liable to him in reparation therefor.”
The defenders pleaded, inter alia—“(1) No relevant case. (2) The pursuer's material averments being unfounded on fact, the defenders are entitled to absolvitor with expenses. (3) Privilege. (4) The charge complained of having been made by the said conductor bona fide and with probable cause, et separatim the said charge being true and well founded, the defenders should be assoilzied.”
On 11th June 1907 the Sheriff-Substitute ( Boyd) allowed before answer a proof, and his interlocutor was on appeal affirmed on 5th July 1907 by the Sheriff ( Guthrie), whose note is quoted infra in the note of his successor ( Millar).
On 26th May 1909 the Sheriff-Substitute, after the proof, pronounced this interlocutor—“Finds that on 29th January 1907 the pursuer entered an electric car belonging to the defenders a few yards from the halfpenny car station in Seamore Street, Glasgow, on the line approaching the city; that at or near the station in Great Western Road he tendered the sum of one halfpenny to the conductor; that this was refused and the conductor gave the pursuer in charge of the police, accusing him of attempt to defraud the defenders; that the pursuer was tried on such a charge at the Northern Police Court, Glasgow, on 19th February 1907, and after evidence being heard, the charge was found not proven: Finds that the defenders' servant acted recklessly and without probable cause, and subjected the pursuer to indignity and insult, and that the defenders are liable to the pursuer in damages therefor: Assesses the same at the sum of £10 sterling, and decerns against the defenders for that sum,” &c.
Note.—“I regarded this as chiefly a case of credibility, and it seemed to me that the witnesses for the pursuer were very much more to be relied upon than those for the defenders. The only impartial witness on the defenders' side was the lad Whitton, and admittedly he was reading at the time the pursuer boarded the car, and I did not regard him as a safe guide on the point as to the exact locality in which the pursuer entered the car.”
On 5th August 1909 the Sheriff ( Millar) on appeal pronounced this interlocutor—“Recals the interlocutor of 26th May last: Finds on the facts averred that the case is one in which the defenders' servant was privileged: Finds that the pursuer has failed to prove that the defenders' servant acted maliciously and without probable cause; therefore to that effect sustains the third and fourth pleas-in-law for the defenders, and assoilzies them from the conclusions of the action, and decerns: Finds the pursuer liable to them in expenses, including the expenses of the appeal.”
Note.—“This is an action of damages on the ground that the defenders' servant, a tramway car conductor, charged the pursuer with failing to pay his fare and handed him over to the police, and that he did so recklessly and maliciously and without probable cause and entirely out of bad temper and spite against pursuer. The pursuer avers that he got in at the tramway car station at Seamore Street and that the fare to the station at Cambridge Street is one halfpenny, which he tendered to the conductor; that the conductor believing that he had come in at the station previous to Seamore Street, when a penny would be due as fare, refused to accept a halfpenny. The pursuer refused to give a penny, whereupon the car conductor called the police. I think there is no doubt that as the conductor was acting in the scope of his employment and in the interest of the Corporation he was in a privileged position, and that the pursuer must prove malice and want of probable cause before he can succeed in his action. His case was before the late Sheriff Guthrie on the relevancy, and he says in his note — ‘This case differs from Buchanan v. Glasgow, 7 F. 1001, in respect that the conductor of the car is said to have lost his temper and become insulting and abusive to the pursuer. It is possible that malice may be inferred by a jury from such bearing of the defenders' servant.’ Now it is enough to say that the pursuer in his own evidence says—‘The conductor was insulting and abusive to me. (Q) Explain how? —(A) He said that I was trying to get out of paying my fare and I would see, and he
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would give me in charge, and he got into an excited state. (Q) Was he abusive in any other shape or form?—(A) He would not be in any other form except trying to strike me, and he did not do that. He used words to the effect, as far as I can recollect, that I was trying to get out of paying my fare. That was practically the only language he was using.’ Now it is clear from that, that all that was said by the conductor was that the pursuer was not paying the fare that was due, and that was the question at issue. Apart from that the pursuer does not say the conductor was either insulting or abusive to him. Accordingly, so far as the conductor's language was concerned, the pursuer fails to prove malice. But it is further said that the conductor handed over the pursuer to the police after he had given his name and address, but it appears from the evidence of the only independent witness Whitton that the pursuer did not tender his card to the conductor but only to the police after they arrived. Accordingly I think that point also fails. As to the question whether there was probable cause, there is no doubt that the conductor believed that the pursuer had come on previous to the Seamore Street station, and the lad Whitton is also of the same belief. Moreover, the pursuer's friends, whom he left at the west side of Seamore Street station, saw him hurry forward to the car, and he seems to have got on a few steps before the car actually arrived at the station. In these circumstances I think it is difficult to hold that the conductor had not probable cause for what he did. The pursuer therefore has failed to prove that the defenders' servant acted maliciously and without probable cause. If that be so the defenders are entitled to be assoilzied.” The pursuer appealed, and argued—(1) A tramway company was not in the same position as a railway company, in that a passenger in the former case was entitled to enter on the journey without a ticket— Apthorpe v. Edinburgh Street Tramways Company, December 13, 1882, 10 R. 344, L. P. Inglis at 351, 20 S.L.R. 256. The occasion here was not privileged, and there was no need to prove malice and want of probable cause. Bye-law 4 ( c) merely gave a power or privilege of enforcing a civil remedy. It was not in the same position as a quasi-police regulation, as that of preventing spitting, under consideration in the case of Buchanan v. Corporation of Glasgow, July 19, 1905, 7 F. 1001, 42 S.L.R. 801. Its provisions were rather of the nature of those in sections 35 and 37 of the Merchant Shipping Act Amendment Act 1862 (25 and 26 Vict. cap. 63), under consideration in Lundie v. M'Brayne, July 20, 1894, 21 R. 1085 (esp. Lord Kinnear at 1088–9), 31 S.L.R. 872. Accordingly they maintained that when the right to give in charge depended on statute, the giving in charge was wrongful and illegal unless the exact provisions of the statute were complied with, and it did not in any way give rise to an occasion of privilege. [ Lord Kinnear referred to Pringle v. Bremner & Stirling, May 6, 1867, 5 Macph. (H.L.) 55, 4 S.L.R. 233.] (2) In any case the evidence established malice and want of probable cause. The conductor had no reasonable ground for belief that the pursuer was trying to evade paying his fare. The want of probable cause and the recklessness of the conductor in charging the pursuer were in themselves evidence of malice— Arbuckle v. Taylor, 1815, 3 Dow 160; Martin & Stark v. Cruick-shanks, June 26, 1896, 23 R. 874, 33 S.L.R. 683; Clark v. Molyneux, 1877, 3 Q.B.D. 237. Reference was also made to Munro v. Taylor, February 25, 1845, 7 D. 500.
[The Court informed counsel for the defenders that they need not argue the question of privilege.]
Argued for the defenders—The pursuer had failed to prove malice and want of probable cause. Both must be proved, but he had proved neither.
At advising—
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The particular offence with which we are concerned here falls short of any criminal gravity; it is a petty fraud, but still a fraud; and it is a statutory offence, to be visited by the infliction of a penalty, and a specific duty is laid upon this particular officer to see that it is not committed. The learned Sheriff-Substitute on consideration of the evidence thought that it had been proved that the conductor acted recklessly and without probable cause, and then he goes on to find “And that he subjected the pursuer to indignity and insult.” I disregard the last part of the finding because it is too vague to import actionable wrong; but the material finding is, that the defender acted without probable cause. The learned Sheriff-Substitute does not find—which I think was necessary to an exhaustive judgment—that he also acted with malice. The learned Sheriff on appeal took a different view, and held that the pursuer has failed to prove that the defender acted maliciously and without probable cause, and therefore he sustains the defenders' pleas-in-law.
I am of the same opinion as the Sheriff. I do not think it is necessary on a mere question of fact to examine the evidence in detail, and therefore all that I do think it necessary to say upon the second of the two branches of the learned Sheriff's judgment is that I think there is evidence that although the conductor was mistaken he nevertheless had a reasonable ground for thinking that the pursuer was travelling without paying his fare. So far, therefore, as the want of probable cause is concerned, I do not think it is proved, but I am quite clearly of opinion, and that is enough to dispose of the case, that there is no evidence that the defender acted maliciously, or that he was acting otherwise than in what he believed to be the discharge of his duty to his employers. It is said that he used insulting language; and it may be that any excessive violence in his action or even in language would be evidence tending to prove malice. But I entirely concur with the observation of the learned Sheriff, who points out that when the pursuer is asked what the insult was he says that it consisted of saying that “I was trying to get out of paying my fare.” But that is a statement which ex hypothesi does not of itself imply malice; and it follows that evidence of malice must be found elsewhere than in the words of the statement itself.
I therefore agree with the learned Sheriff, and think that the case is not proved, and that the appeal must be dismissed.
[ After narrating the facts ut supra]—Now it was quite right and in accordance with practice that the pursuer should libel malice and want of probable cause, as a case of privilege might have emerged at the trial, which otherwise he would not have been in a position to meet. But it does not follow that malice and want of probable cause would have been put in issue had the case gone to a jury, or that they must be proved to the satisfaction of the judge, as the case went to proof before the Sheriff.
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The idea that the case turns on the question of privilege has, as I think, arisen from misapprehension and misapplication of the precedent of Buchanan v. Corporation of Glasgow, supra. The Corporation have a statutory right to make bye-laws which have the force of statute, and we have been furnished with a copy. Some of these byelaws are purely in defence of the Corporation's interests, as, for instance, head 4 ( c), under which the conductor acted, and which provides that any person—I read it short—travelling by the Corporation cars, who evades or attempts to evade payment of his fare shall be liable to the prescribed penalty, “and it shall be lawful for any officer or servant of the Corporation, and all persons called by him to his assistance, to seize and detain any such passenger whose name or residence is unknown to such officer or servant, until such passenger can be conveniently taken before a magistrate, or until he be otherwise discharged in due course of law.”
But there are other bye-laws which concern the public interest, such as head 16, which prohibits any passenger, inter alia, spitting or committing any nuisance in or upon any car. In Buchanan's case the Corporation's inspector had charged the pursuer with a contravention of this byelaw. In respect that they were acting not merely in the defenders' interest, but were performing a public duty, the inspector's action was held to be privileged, though the privilege might not be of a high degree, and accordingly malice was required to be relevantly averred and proved. But Buchanan's case is no authority for holding that the Corporation officials are privileged in the enforcement of all their bye-laws, and I think that they were not so privileged in the case in question, which is much more akin to, if not identical with, M'Brayne's case ( 21 R. 1085) than Buchanan's ( supra). The Corporation are entitled to receive their legal fares. Their conductors are responsible to them for recovering the fares due, and if an inspector happened to come aboard and found that the fare had not been exacted, the conductor would at least be surcharged. I do not think that the conductor is concerned with the motive for withholding the proper fare, as, for instance, a bona fide belief that more than is legal is being asked. It is enough for him that in fact there is evasion of payment. I note one exception, which strengthens my view of the real meaning of the rule, viz., the inadvertent travelling an additional distance without paying the additional fare. Now power is conferred on the conductor to seize and detain the evading passenger until he can be conveniently taken before a magistrate. But though he is armed with this exceptional power to interfere without warrant of a magistrate with the liberty of the subject, his exercise of it can only be justified by the fact that the due fare has not been paid or is refused; and it is subject to this further condition, that the name or residence of the passenger is unknown to him. If he is mistaken, or if the passenger's name and address are known to him, he has no warrant for the detention, and as he is the servant of the Corporation, and acting within the scope of his duty, the Corporation is responsible in damages ( Moore v. Metropolitan Railway Company, L.R. 8 Q.B. 36, and cases there cited by Blackburn, J.).
The sole question therefore in the case is, Was the Corporation's conductor right or wrong in exacting a penny or two stage fare, and did he know the name or residence of the passenger?
The evidence is conflicting. But I think that at any rate this is clearly proved, viz., that the conductor did not know the name or address of the pursuer. Had the latter offered him his card, I think in such a small matter he was bound to accept that as credible evidence. But the pursuer did not tender it until the police were called in, and I note that though the police accepted it and did not detain him in custody, they thought it proper to verify its authenticity by following him to his door. But it is not so easy to determine satisfactorily the precise point at which the pursuer entered the car upon which the proper fare depended. The pursuer admits that he jumped on the car while still in motion a little before it reached the Seamore Street stop. But the conductor is emphatic that he was the last of three passengers who got on at Henderson Street, and in fact was waited for there. And each is supported by two witnesses. I should have been inclined to give preponderating weight to the statement of the Sheriff-Substitute as to the comparative reliability of the witnesses, were it not that he finds that the conductor acted without probable cause, and subjected the pursuer to indignity and insult, a finding which I think is disproved out of the pursuer's own mouth, though alleged by him on record. On the other hand, against the Sheriff-Substitute's opinion I cannot act on my own preference for the defenders' witnesses. The question therefore resolves itself into a question of onus of proof, and I think that as the defenders' conductor is armed with authority the equivalent of statutory, the onus lies on the pursuer to show that he was not justified in his use of it. I think, therefore, that though the Sheriff's judgment should be affirmed in so far as it assoilzies the defenders, it should be on different findings in fact and law.
The Court pronounced this interlocutor—
“Dismiss the appeal, affirm the interlocutor of the Sheriff of 5th August 1909, repeat the findings therein, of new assoilzie the defenders from the conclusions of the action, and decern: Find the pursuer liable in the expenses of the appeal as between agent and client, and remit the account thereof, along with that of the expenses found due in said interlocutor of the Sheriff, to the auditor to tax and to report.”
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Counsel for the Pursuer and Appellant— Hamilton. Agents— Gardiner & Macfie, S.S.C.
Counsel for the Defenders and Respondents— M. P. Fraser— Crawford. Agents— Simpson & Marwick, W.S.