Scottish Court of Session Decisions

Lord Barcaple, in his charge to the jury, said—Cases founded upon wrongful dismissal, where the dismissal is sought to be justified, are usually of a very simple kind. The question generally is whether the servant has committed a fault of such magnitude as to justify dismissal? But here there is a combination of matters alleged against the pursuer; and these combined may justify dismissal, although possibly each one taken by itself might not. The first matter I may allude to is the statement on record by the defender, that the pursuer had been frequently at the warehouse in a state of intoxication, and unfit for business. This was not known to the defender when the dismissal took place, and it might have involved a question of law as to whether you were entitled to regard any matter which could not be in the defender's mind at the time of dismissal. But I am relieved from giving any opinion on this legal question, and you are also relieved from considering the matter, because the charge has been virtually abandoned by the counsel for the defender, and I think it right to say that it was not proved. The pursuer admitted that there was sometimes jollification in the warehouse; but intoxication was only spoken to by one witness, who has not been corroborated. In 1863, a coldness seems to have arisen, in consequence of the pursuer suspecting that the defender wished to transfer him to the employment of Tillie & Henderson—a matter in regard to which the pursuer seems to have been entirely mistaken—but there was no decided breach until July 1864, when the pursuer went to Glasgow without giving any notice of his intention, because, as he thought, the defender would try to avoid him if he knew of his coming. That indicated a most unfortunate state of mind on the part of the pursuer. In the course of the interview that took place, the defender says expressions were used to him by the pursuer which justified his dismissal. Both parties are agreed that the cause of this was the recurrence to the dispute of 1863, which was introduced into the conversation by the defender. You will judge of the evidence of what passed on this occasion. Mr Brown, a clerk, heard through a partition what took place, and he was of the impression that he heard the pursuer say the defender was no gentleman. That was certainly a strong thing to say, if it was said. The defender's next ground of justification is that the pursuer disobeyed his order to return to London. The pursuer says he proposed to the defender to wait in Glasgow until the defender's return from Belfast. The defender says the pursuer had told him he was to return on the Monday. He did not remember whether at the interview he had told him to return. The pursuer's letter of 27th July, written immediately after the interview, rather shows also that he had intended to return on the Monday. But he went off with his wife to the Highlands, and did not return to Glasgow until the Tuesday, and on 3d August he was ordered in writing to go back to London, but he did not do so until the 5th. The defender's next ground of justification is that the pursuer had made false and improper statements in regard to him to third parties. Mr Sinclair gave evidence that the pursuer had said to him of the defender that he dealt in an underhand way with the buyers of the houses he did business with. The defender said nothing about this at the time, but he was quite entitled now to ask the jury to take it into account. Again, when the defender was in London he told Mr Sinclair that he could not be present at his daughter's marriage because his own mother was dying, and he required to go home; and the pursuer is said to have told Mr Sinclair in regard to this that it was all a pretence, and that he had left London to avoid him. The pursuer had also made statements as to the dispute about Tillie & Henderson, in regard to which, as I have said, he was mistaken. Then, again, he told Mr James Sinclair that the defender was endeavouring to prevent consignments being made to him, so as to save his commission, and that the defender was a “low, sneaking fellow.” You will judge of the evidence as to all these matters, and say whether they are proved, and whether, putting them altogether, they form a sufficient justification of the dismissal. This was peculiarly a question for a jury. It is quite true that the pursuer was only a servant in one sense; he was the defender's agent and representative in London, and while he was entitled to considerable latitude and consideration, it is also to be kept in view that from a person occupying the position he did, there were expected a carefulness and gentlemanlike propriety in his conversation with others in regard to his principal which are not looked for from an ordinary or untried servant. The question is, has he gone beyond the proper boundary? If you come to be of opinion that the defender was justified in dismissing the pursuer, then the manner in which it was done is immaterial. But if, on the other hand, you think that he was not justified in dismissing him, then you will consider the circumstances under which the defender carried out his resolution, and these you will take into view as aggravating the damages which in that case you will find to be due to the pursuer.

The jury, after an absence of an hour and ten minutes, returned a verdict for the pursuer, and assessed the damages at one farthing.