& Cuninghame

the fund held by the pursuers and real raisers. It appears to me that these facts speak for themselves. There is a question between Brown and Poole & Company, and therefore the case falls within the principles already referred to. The argument was used that there was only one arrestment and therefore no double distress, but I am unable to see why, if in the case of an assignation a true competition has been held to arise between the assignor and the assignee, which was the case in Fraser's Executrix, 20 R. 374, there should not equally be double distress here. intimated assignation interpels the debtor from paying just as a duly executed arrestment. I therefore agree that there is here double distress and that the Lord Ordinary is right.

An

. LORD DUNDAS was absent, and LORD SALVESEN was sitting in the Lands Valuation Appeal Court.

The Court refused the reclaiming note, adhered to the interlocutor reclaimed against, and remitted the cause to the Lord Ordinary to proceed therein.

Counsel for Pursuers and Real Raisers (Respondents)-M. P. Fraser. AgentsFyfe, Ireland, & Co., W.S.

Counsel for the Compearing_Defenders (Appellants) - M'Kechnie, K.C. A. A. Fraser. Agent-Sterling Craig, S.S.C.

Tuesday, February 7.

SECOND DIVISION.

[Sheriff Court at Hamilton. KANE v. MERRY & CUNINGHAME, LIMITED.

Master and Servant-Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1)― Accident "Arising Out of" Employment.

A

A brusher in a mine who had finished his work for the day jumped on the last of three hutches which were being taken by a pony to the pit bottom. On the way he was knocked off the hutch by his head coming into contact with two crowns which were below the ordinary pit level, and he sustained serious and permanent injury. special rule, of which the injured man was cognisant, forbade miners from riding on the hutches. Held that the injury was not caused by an accident "arising out of" the workman's em. ployment within the meaning of the Workmen's Compensation Act 1906. The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1), enacts"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall . . . be liable to pay compensation. . . ."

Simon Kane, Motherwell, having claimed

7

compensation under the Workmen's Compensation Act 1906 from his employers Merry & Cuninghame, Limited, coalmasters, Glasgow, the matter was referred to the arbitration of the Sheriff-Substitute at Hamilton (A. S. D. THOMSON), who assoilzied the defenders, and at the request of the appellant stated a case for appeal.

The following facts were admitted or proved — “(1) That the pursuer on 30th October 1909 was employed in the respondents' pit as a brusher, and on said date, having finished his work for the day about 10:30 p.m., came with the other workmen to a lie on his way to the pit bottom. (2) That the pony-driver at this time was proceeding to draw three hutches of dirt from the lie to the pit bottom, and the appellant seeing the rake of hutches going off jumped on the rearmost hutch for the purpose of getting a ride to the pit bottom. (3) That in getting on to the hutch his lamp in some way went out, and the ponydriver failed to notice that he was riding on the hutch. (4) That on the way to the pit bottom the appellant was knocked off the hutch by his head coming in contact with two crowns which were considerably below the ordinary pit level, and that he in consequence sustained a fracture of the spine which involves a serious and per manent injury. (5) That it is one of the special rules in said pit (and notices thereof are duly posted up in the pit) that miners are forbidden to ride on hutches, and that this rule is well known to the miners and was well known to the appellant. (6) That in these circumstances the accident did not arise out of and in the course of the appellant's employment, and that he is not entitled to compensation. I therefore assoilzied the defenders and found them entitled to expenses."

The questions of law were - "(1) In the circumstances was the arbiter right in holding that the appellant was guilty of a breach of the special rules of said pit? (2) Assuming that the appellant was guilty of such breach, was the arbiter right in deciding that in the circumstances above stated the appellant was not injured by accident arising out of and in the course of his employment?"

Argued for appellant-The first question was clearly one of fact, and the arbiter's finding in regard to it was not challenged, but he had erred in his finding on the second question. Breach of a special rule, even in the circumstances here found proved, did not take a man out of his employment. "Employment" was not limited to the period of effective work. Even if he adopted a wrong and dangerous method of doing his work he was not thereby taken outside his employmentDurham v. Brown Brothers & Company, Limited, December 13, 1898, 1 F. 279, 36 S.L.R. 190. Breach of a rule might be serious and wilful misconduct-Dobson V, United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260-but that was not the question at issue here. The present case came very near the case of Glasgow Coal Company, Limited v. Sneddon, Feb.

& Cuninghame

7

ruary 14, 1905, 7 F. 485, 42 S. L. R. 365, where breach of a rule had been held not to bar the widow of a miner from claiming compensation. Reference was also made to M'Lauchlan V. Anderson, February 1, 1911, supra, p. 349.

Counsel for the respondents were not called on.

LORD JUSTICE - CLERK - In this case it cannot possibly be said that the SheriffSubstitute had no reasonable grounds for holding that the accident did not arise out of and in the course of the workman's employment. This is a totally different case from that of the Glasgow Coal Company v. Sneddon, 7 F. 485, which has been cited to us, because here we have a breach of a rule and in direct connection with the breach the accident happens. The workman had finished his work for the day when he saw a pony-driver proceeding to draw three hutches to the pit bottom, and he jumped on the rearmost hutch for the purpose of getting a ride. The driver did not notice him as his lamp had gone out, and on the way to the pit bottom he was knocked off the hutch by his head coming in contact with two crowns which were considerably below the ordinary pit level. It was one of the special rules of the pit that miners were forbidden to ride on the hutches, and of this the workman was well aware. In this state of the facts, although it may be said that the workman was in the course of his employment while in the act of leaving his work, I have no doubt that the accident did not arise out of his employment in the sense of the Act.

LORD ARDWALL-I am of the same opinion. Undoubtedly while a man is going to or coming from his work he is still in the course of his employment, but it is quite another question whether the accident in this case can be said to have arisen "out of the employment." I am of opinion it did not, but, on the contrary, that it happened in consequence of something which the appellant did, purely for his own ease or pleasure, and in direct and flagrant breach of rules which the employers had enacted under statutory authority for the protection alike of their workmen and themselves. In these circumstances I am satisfied that the result at which the SheriffSubstitute has arrived is right.

LORD MACKENZIE-In this case the arbiter has found that the accident did not arise out of and in the course of the employment of the appellant. Before this Court can interfere with that decision we must be satisfied that there was no evidence on which he could reasonably reach this conclusion. In this case I think that not only was there evidence on which the arbiter could reach that conclusion, but the facts plainly show it was the proper conclusion to reach. It is not every breach of rules which places a workman outside the sphere of his employment. In each case that is a question of circumstances, and the arbiter has so regarded it. Here I think the accident did not arise "out

of," although it may have arisen "in the course of" the workman's employment. The accident was due to an unfortunate act of the workman himself. For purposes of his own, instead of walking to the pit bottom as he should have done, he got on a hutch, with the result, that on the way his head came into contact with two crowns which were below the ordinary pit level. In these circumstances I think the Sheriff - Substitute has reached the proper conclusion.

LORD DUNDAS was absent, and LORD SALVESEN was sitting in the Lands Valuation Appeal Court.

The Court answered the first and second questions of law in the affirmative, and affirmed the dismissal of the claim by the arbitrator.

Counsel for Appellant J. A. Christie. Agents-St Clair Swanson & Manson, W.S.

Counsel for Respondents-Horne, K. C.Strain. Agents-W. & J. Burness, W.S.

Tuesday, February 7.

SECOND DIVISION.
(SINGLE BILLS.)

MACKENDRICK v. NATIONAL UNION
OF DOCK LABOURERS OF GREAT
BRITAIN AND IRELAND.

--

(Reported ante, November 1, 1910, at p. 17.) Expenses Appeal to House of Lords Withdrawal of Appeal Respondent's Additional Expenses Prior to Withdrawal.

Where a cause had been disposed of on a reclaiming note and the pursuer found entitled to expenses, held that the Court had no power to award additional expenses incurred by the pursuer in consequence of an appeal to the House of Lords having been taken by the unsuccessful defenders and afterwards withdrawn.

The case is reported ante ut supra.

Alexander Brownlie Mackendrick, writer, Glasgow, sued the National Union of Dock Labourers in Great Britain and Ireland for £425, 5s. 1d., being the amount of certain accounts for professional work.

On 1st November 1910 the Second Division found, inter alia, that the defenders were liable in payment of the accounts sued for in so far as the same were properly charged, remitted the same to the Auditor of Court to tax and report, and found the pursuer entitled to expenses, both in the Outer and Inner House, so far as not already disposed of by a previous interlocutor.

On 12th November 1910 the defenders presented a petition for leave to appeal to the House of Lords, and on 15th November leave to appeal was granted as craved.

On 20th January 1911 defenders' agents

intimated to pursuer's agents that their clients were not to proceed with the appeal.

Thereafter the pursuer presented a note to the Lord Justice-Clerk, in which he stated, inter alia, that after leave to appeal to the House of Lords had been granted, defenders' agents requested to know the names of the London solicitors who were to act for the pursuer in the appeal, in order that they might advise their London solicitors accordingly; that pursuer's agents thereupon instructed London solicitors to act for him, and advised the defenders' agents thereof; that various meetings and some correspondence took place between the London solicitors of the defenders and the London and Edinburgh solicitors of the pursuer, and that in consequence thereof pursuer had incurred legal expenses to his Edinburgh and London solicitors which could not be recovered in his account of expenses in the action at his instance against the defenders. The pursuer therefore craved the Court, "in respect of such leave to appeal to the House of Lords having been granted to [the defenders], and they having intimated that they are not to proceed with an appeal, and in consequence [the pursuer] having been put to legal expenses, to allow him to make up an account thereof, and to remit the same to the Auditor to tax and report. . . ."

On the note appearing in Single Bills, counsel for the pursuer moved that the prayer be granted.

There was no appearance for the defenders.

LORD JUSTICE CLERK-I do not think that this note should receive effect. The condition of matters is this. The case before us has been finally disposed of by a judgment which took it entirely out of our hands. The only thing that remains to be done is to decern for expenses, and a petition for leave to appeal to the House of Lords having been granted, there can be no further proceedings in this Court. That being so, and the appeal having been dropped, we are now asked to give a decerniture allowing or modifying expenses incurred by the petitioner in connection with the appeal. I think that is out of the question, and I am clear that we have no power to do any such thing.

I may add that it is very doubtful, indeed, even if the case had proceeded, whether these expenses would have been included in the costs as they might be granted by the House of Lords.

We

LORD ARDWALL-I entirely concur. have asked for authority, but counsel has frankly stated that there is no authority for the prayer of this note, and, apart from authority, it appears to me that the prayer asks us to do something which it is incompetent for us to do, viz., to deal with the expenses of an appeal to the House of Lords after we have exhausted the case so far as this Court is concerned. If the appeal had gone on these expenses would have formed part of the expenses to be dealt with by the House of Lords when the case came before

Reparation

[Lord Skerrington, Ordinary. SHAW v. BURNS.

---

Wrongous Information to Police-Malice-Averments-Relevancy. A cellarman who had been dismissed from his employment with a firm of wine merchants brought an action of damages against the manager, in which he, inter alia, averred that after being fifteen years in the firm's employment his health broke down through overwork; that after his discharge from the infirmary the defender sent for him to come and see him at his office; that on his doing so the defender began to blackguard the pursuer's wife and the pursuer; that while the pursuer was in the infirmary the defender had called for the pursuer's wife, and intimated that he would require the house which the pursuer and his wife then occupied; that at a second interview with the pursuer and his wife he (the defender) expressed himself in very angry terms with the latter for having written to a friend of the head of the firm on behalf of her husband, and that he then and there dismissed him from the firm's employment; that on the pursuer asking for a certificate of character the defender refused to give him one; that on a subsequent day the pursuer, while waiting in the street for a paper, was accosted by two policemen, who informed him that a complaint had been lodged against him for threatening the firm's employees, and asked him to move on; and that his being so asked was due to the defender having informed the police that he (the pursuer) was threatening the defender's life, and was loitering about with the intention of doing the defender harm.

Held that malice had been relevantly averred.

Process-Issue-Form of Issue-Competency of Putting in Issue the Alleged Con sequent Damage.

A pursuer is not entitled in every case to put in issue not only the facts which constitute the ground of action but also the alleged consequent damage, e.g., where the damage alleged is an unusual consequence.

life and person of defender, and intending to do him grievous bodily harm.

The defender pleaded, inter alia" (1) The pursuer's averments being insufficient and irrelevant to support the conclusions of the summons, the action should be dismissed."

On 11th January 1911 the Lord Ordinary (SKERRINGTON) approved of the following issue" Whether, on or about 12th September 1910, the defender falsely, calumniously, maliciously, and without probable cause, informed, or caused information to be given to the Chief-Constable of the City of Edinburgh, or one of his subordinate officers, accusing the pursuer of having loitered in or near Clifton Terrace, Edinburgh, with the object of doing personal injury to the defender, in consequence of which the pursuer, while standing in or near said terrace, was accosted on said date by two police officers and ordered to move on, to the loss, injury, and damage of the pursuer? Damages laid at £200."

Opinion. "The pursuer was for many years a cellarman and warehouseman in the employment of an English firm of wine merchants which has a branch in Edinburgh managed by the defender. His wages were paid weekly, and latterly he had in addition a free house in the firm's premises, and acted as engineman. In this action he claims damages because of the defender's having given information to the police to the effect that after the pursuer had been dismissed and had left his house he loitered near the business premises with intent to do personal injury to the defender. It was debated whether such an action is properly one of slander. I respectfully agree with the present Lord President that a person who denounces another to the police has passed from the region of mere words to that of deeds-Webster v. Paterson & Son, 1910 S.C. 459, p. 468. In such cases the issue may either be similar to an issue of slander with the addition of without probable cause,' and with a statement of the consequences following on the information, as in Lightbody v. Gordon, 1882, 9 R. 934, 19 S. L. R. 703; or it may simply inquire whether the defender maliciously, and without probable cause, caused the pursuer to be apprehended1-as in Douglas v. Main, 1893, 20 R. 793, 30 S. L. R. 726. In the present case, as the pursuer was only accosted by two policeofficers in the public street and ordered to move on, he has properly founded his proposed issue primarily upon the information to the police, though he brings prominently before the jury the fact that the information was accepted as true, and was to some extent acted on. Subject to verbal corrections the issue is in proper form. The damage of which the pursuer complains consists partly of injury to his health alleged to be due to the accusation of a crime at a time when, he says, that his health was, and was known by the defender to be, precarious. Founding upon two English decisions as to special damage in slander actions-Alsopp v. Alsopp, 5 H. and N. 534; Roberts v. Roberts, 5 B. and S.

384-the defender's counsel asked me to delete these averments upon the ground that mental or physical illness is not a direct and natural consequence of an accusation of crime. I know of no rule of law or practice in Scotland which entitles me to prevent the pursuer from proving, if he can, that he has suffered in health as a direct consequence of the defender's action. I cannot now decide that such a result is impossible. If the jury is properly directed at the trial, the defender ought not to suffer any prejudice from the admission of such evidence.

as

"As regards the relevancy of the averments of malice, the pursuer avers that the defender made the charge to the police knowing it to be false. In actions like the present there is no general rule that facts independent of the act complained of, and showing antecedent malice, must be averred -Brown v. Fraser, 1906, 8 F. 1000, 43 S. L.R. 741. A person smarting under an injury may make an accusation against a stranger without caring whether it is true or false. There is also force in Lord Young's observation that a man may have an enemy without knowing of it-M'Ternan v. Bennett, 1898, 1 F. 333, 36 S. L. R. 239. Lastly, although want of probable cause does not prove that the defender acted maliciously he might have been honest but stupidthe absence of reasonable ground for believing the charge may be some evidence that the defender did not in fact believe it to be true-Clark v. Molyneux, 1877, 3 Q.B.D. 237, and Cases in Cooper on Defamation, p. 205. Accordingly, I should be slow to refuse the pursuer an issue unless it was clear from his own averments that a jury could not competently come to the conclusion that the defender had made the accusation to the police from some indirect motive, and not for his own protection or out of duty to the public. In the present case, however, the pursuer alleges antecedent malice. He avers that his mental and bodily health having given way, he was removed to the Infirmary, where he stayed for three weeks. Meanwhile the defender called upon the pursuer's wife and told her that he would require the house in which she and her husband lived. It is not alleged that in so acting the defender was influenced by any motive except his duty to his principals, or that he was not entitled to resume possession of the house. The pursuer's wife was, however, very much surprised and annoyed,' because she thought that the defender intended to dispense with her husband's services. Unfortunately (as after events proved) she got a former employer of her own to write to one of the principals on behalf of the pursuer. The result was a communication' from the principal to the defender which 'much annoyed' the latter. After the pursuer had left the Infirmary there followed two interviews between him and the defender. At the first interview the defender blackguarded the pursuer's wife and the pursuer,' and at the second he expressed himself in very angry terms with reference to what