Scottish Court of Session Decisions

Lord President—The position in which this case is is decidedly peculiar. The action was an action brought by a dock labourer in Grangemouth, directed against a mining company in whose service, in a mine situated at Bonnybridge, the pursuer's son was killed, and the summons concludes for damages either at common law or under the Employers' Liability Act. The action was therefore perfectly rightly raised in a Sheriff Court in the sheriffdom to the jurisdiction of which the defenders were subject, and the initial writ is quite properly conceived. The defence was a defence, first of all, as to the relevancy of the claim as made, and secondly, on the merits. The usual preliminary stages of the process took place. The record was closed, and then parties were heard upon the pleas so far as preliminary, namely, the pleas to the relevancy. The defenders seem to have abandoned before the Sheriff-Substitute their plea that there was no relevant case under the Employers' Liability Act, but they insisted upon their plea that there was no relevant case at common law. The Sheriff has repelled that preliminary plea, and in a note which I think is very sensible he said that although the question was doubtful, still inasmuch as there must admittedly be inquiry upon the case under the Employers' Liability Act, he would not split up the case at this time, and therefore he repels the plea and allows a proof.

Now if the pursuer had chosen there is, I suppose, no question whatsoever but that he could have made a motion under section 30 of the Sheriff Courts Act 1907 for the removal of the case to this Court for jury trial, that motion under section 30 coming in place of the well-known appeal for jury trial which began under the 40th section of the Judicature Act, and was slightly modified by a section of the Court of Session Act of 1868. But unfortunately the pursuer took a wrong view of what his case was, and he seems to have thought, probably by inadvertence, that this was an action raised by an employee against his employer. Well, of course it was not. It was raised by the deceased employee's father against a person who was not his employer, but though it was not raised by an employee against his employer he made the motion under section 31 of the Sheriff Courts Act 1907, which provides … ( quotes v. sup).…

Accordingly he lodged a minute within six days, on 6th July, the interlocutor I have mentioned being pronounced on the 1st. He lodged a minute requiring that the case should be tried by jury. We are told that that minute was intimated, and that no appearance was made in respect of that intimation, and upon the 7th, which was the last of the six days, the Sheriff-Substitute, after hearing nobody, and obviously not having noticed — and no wonder, because probably his clerk had not called his attention to it—pronounced this interlocutor—“In respect of the minute for the pursuer, orders the case to be tried before a jury of seven persons: Appoints the cause to be put to the roll for Monday, 11th July, for the purpose of fixing a diet for the purpose of hearing parties upon the question or questions of fact to be proponed to the jury.” Well, there were various prorogations of that enrolment of 11th July 1910, and eventually on 2nd August 1910 the Sheriff-Substitute, having heard parties, appoints the following question to be proponed to the jury, and then he puts forward a question of fact which is pretty much in the form of a general issue, and he grants leave to appeal to the Court of Session, and it is upon that appeal we are here to-day.

To-day counsel for the defenders discovers what is obvious enough, but what does not seem to have suggested itself in the Court below, that this not being an action by an employee against his employer the 31st section has no application thereto, and that therefore there is no possibility of granting a jury trial in the Sheriff Court upon that question, because, I need scarcely remind your Lordships, jury trial in the Sheriff Court is not what might be called indigenous. It is only introduced by this section 31, and therefore unless you can bring yourself within the ambit of that section you cannot have a jury trial in the Sheriff Court. To that there is no answer, and therefore the whole of these interlocutors since the interlocutor of 1st July 1910 are really entirely inept. But then comes the question—What are we to do now? The proposed jury trial in the Sheriff Court being inept, the thing that remains is the interlocutor of 1st July 1910 allowing the parties a proof. Now it is quite true that counsel for the defenders has argued that the record as it stands is irrelevant, and of course if we had been of that opinion then there would have been nothing more but to dismiss the action. But I am of opinion very clearly that there is an obviously relevant case stated under the Employers' Liability Act. There is a case of some doubtful relevancy at common law, but my view of that is the same as that of the Sheriff-Substitute as set forth in his interlocutor of 1st July 1910. Inasmuch as there must be some form

Page: 245↓