Scottish Court of Session Decisions

The Jury Trials Amendment Act 1910, sec. 2, enacts—“If after hearing parties upon ( a) a rule to show cause why a new trial should not be granted in terms of section 6 of the Jury Trials (Scotland) Act 1815 (55 Geo. Ill, cap. 42), on the ground that the verdict is contrary to evidence … the Court are unanimously of opinion that the verdict under review is contrary to evidence, and further that they have before them all the evidence that could be reasonably expected to be obtained relevant to the. cause, they shall be entitled to set aside the verdict, and in place of granting a new trial to enter judgment for the party unsuccessful at the trial.”

Mrs Helen Miller or Simpson, pursuer, brought an action in the Court of Session against the Corporation of Glasgow and also Lyons & Company, Limited, defenders, concluding against the defenders conjunctly and severally, or severally, or according to their respective liabilities, for £250 damages.

The pursuer was injured while travelling in one of the tramway cars of the defenders first called, by being thrown violently to the floor of the car. That was caused by the car being suddenly pulled up to avoid a van belonging to the defenders second called, which was crossing the rails in front of the car.

On 16th June 1915 the Lord Ordinary' ( Anderson) approved of an issue in the following terms—“Whether, on or about 11th November 1914, and at or near a point in Rutherglen Road, Glasgow, near Sandy—fauld Street, the pursuer, while travelling in a tramway car belonging to the defenders, the Corporation of the City of Glasgow, was injured in her person through the fault of the defenders, or either and which of them, to her loss, injury, and damage? Damages laid at 250 sterling.”

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The case was tried before Lord Skerring—ton and a jury, and the jury found for the pursuer as against both sets of defenders.

The defenders first called having obtained a rule upon the pursuer to show cause why a new trial should not be granted, counsel for the pursuer at the hearing on the rule intimated that he did not support the verdict against the defenders first called, and that he did not object to the granting of a new trial against both defenders, but made no motion to have the verdict applied as against the second defenders only.

Counsel for the defenders first called moved that the verdict should be set aside in toto, or as against his clients, and for absolvitor in favour of his clients under the Jury Trials Amendment (Scotland) Act 1910 (1 Geo. V, cap. 31), section 2.

Counsel for the defenders second called, after supporting the verdict, moved that if the verdict was to be set aside, it should be set aside in toto, and opposed the motion for absolvitor.

Argued for the defenders second called—It was incompetent to set aside the verdict as against one defender, for the verdict was a unum quid and could only be set aside as a whole. The verdict was joint against both defenders, and was not two verdicts, one against each defender. To set it aside against one defender was to alter it, and that was beyond the power of the Court, for that was really giving a verdict— Morgan v. Morris, 1858, 3 Macq. 323; Spring v. Martin's Trustees, 1910 S.C. 1087, 47 S.L.R. 703; Purnell v. Great Western Railway Company, 1876, 1 Q.B.D. 636; Dudgeon v. Martin, 1815, 13 M. & W. 811; Boal v. Scottish Catholic Printing Company, Limited, 1908 S.C. 667, 44 S.L.R. 836; Watt v. Watt, [1905] AC 115; Sandford v. Porter and Wain, [1912] 2 I.R. 551. The Scots law was taken from the English common law, which gave the courts no such power as desiderated in this case. That common law was altered by the Supreme Court of Judicature Act 1875 (38 and 39 Vict. cap. 77), and the Rules of the Supreme CourtOrder xxxix, Rules 6 and 7, but these did not apply to Scotland, and further, did not give such a power. (2) Esto the verdict was set aside in toto, it was incompetent to assoilzie the defenders first called. The Jury Trials Amendment (Scotland) Act 1910 (1 Geo. V, cap. 31), section 2, was inapplicable, as (1) it did not contemplate the case of more than one defender, and (2) in any event it was not certain that all the available evidence against the defenders first called was before the Court.

Argued for the defenders first called— Esto the Court was of opinion that the verdict must be set aside in toto, the Court could set aside the verdict and then proceed under the Jury Trials Amendment Act 1910 ( cit. sup.) to grant absolvitor in favour of these defenders. There was no evidence against them and no prospect of further evidence, and the verdict being set aside the Court could not be said to be applying it in part only if they granted absolvitor to these defenders. The position was analogous to the case where a pursuer abandoned his case against one defender, for the pursuer here had refused to show cause— Western Bank v. Baird, 1862, 24 D. 1054.