Scottish Court of Session Decisions

This was an action at the instance of George Shanks, mason, Greenock, against “The United Operative Masons Association of Scotland,” and also against the individual members of the Central Committee as representing the Association. The summons concluded for a sum of £80, which the pursuer alleged to be due to him in the following circumstances—On the 9th August 1871 the pursuer, who at that time had been twelve months a member of the said Association, and of the Helensburgh Lodge or Branch thereof, and was not to any extent in arrears, received a real accident while following his employment as a mason, at or near Clinder, Roseneath, by the falling of a heavy block of stone on his person, whereby his right leg was crushed, and his body was otherwise so severely injured as to disable him for life from following his trade or occupation as a mason.

By Law I, Class IV, of the Rules and Regulations by which the Association was governed, it was provided that “Members disabled for life by any real accident while following their employment as a mason may lay an application before the Society, according to Law 7 of this Class, and if the majority of those voting on the application consider him entitled, he shall receive the sum of £80 sterling.”

The pursuer averred that he had complied with all the conditions upon which, according to the further rules of the Association, a member was eligible for the provisions of this class, and that the sum of £80 had been wrongfully withheld from him by the Association.

The defenders denied that the pursuer had been disabled for life by the accident, and averred that the provision of £80 had been refused to him in terms of and in conformity with the said Rules and Regulations.

The pursuer pleaded inter alia:—“(1) The pursuer having, while a member of the said Association, been disabled for life by a real accident received while following his employment as a mason, became, in terms of the said Rules and Regulations, entitled to the foresaid sum of £80 sterling.”

The defenders pleaded inter alia:—“(1) In so far as directed against ‘The United Operative Masons Association of Scotland,’ the action ought to be dismissed, in respect that the Association is not incorporated, and has no persona standi in judicio. (2) The Association and its laws being directed to support strikes of workmen and in restraint of trade, the said laws cannot be enforced or sustain action in a Civil Court. (3) The pursuer's statements are not relevant or sufficient in law to support the conclusions of the Summons. (4) The pursuer is not entitled to recover, in respect that neither the Central Committee, nor the Association, nor the majority of the Lodges, or of the individual members voting, were or are satisfied that he was disabled for life from following his

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trade, or that he was or is entitled to the provision claimed; but that, on the contrary, his claim was negatived by a majority of votes.”

The Lord Ordinary pronounced this interlocutor:—

“ Edinburgh, 5 th December 1873.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings,—Finds that the action cannot, in the circumstances in which it has been brought, be maintained in this Court, and therefore dismisses the same, and decerns: Finds the defenders entitled to expenses; allows an account thereof to be lodged, and remits it when lodged to the Auditor to tax and report.

Note.—This is one of several actions which have been lately instituted by members of the Association in question to enforce payment of claims in respect of injuries sustained by them through accidents, the object of the Association being to secure for its members some provision against the consequences of such accidents.

A former action at the instance of a member of the Association, named M'Kernan, was dismissed by the Court as incompetent, in the circumstances and on the grounds referred to in the report published in the Scottish Law Reporter,’ vol. x., p. 861, and Scottish Jurist,’ vol. xlv., p. 351. A second action, at the instance of the same individual, M'Kernan, was on the 29th October 1873 dismissed on the same grounds by the present Lord Ordinary, and now a third action, at the instance of the pursuer George Shanks, has met with the same fate.

The grounds upon which the Lord Ordinary has proceeded in now dismissing this action are, that the pursuer's allegations are irrelevant and insufficient to support it; and, in particular, that he has not averred or shown any reason why he should be allowed to come into this Court with such an action as this, in place of leaving his claim to be disposed of by a vote of the Association, in terms of its laws; or, in the event of a dispute arising in regard to that or any other matter relating to his claim, allowing it to be determined by arbitration in conformity also with its laws, and the special agreement afterwards referred to, entered into by him and the Association.

The pursuer himself, in article 6 of his condescendence, sets out the law of the Association, which directs that an application for relief such as the present ought to be made to the Association, and declares that a ‘majority of those voting on the application shall be held binding without power of appeal to any Court of civil law or equity.’ And in article 10 of his condescendence the pursuer acknowledges that a vote was taken on his claim or application, and that it was adverse to him. Nor has he, so far as the Lord Ordinary can see, made, any statement relevant or sufficient to show that this ought not to be held as conclusive against him.

But, further, it appears that the pursuer having brought an action in the Sheriff Court for the purpose of enforcing his claim, a minute of agreement was, according to his own statement in the 11th article of his condescendence, ‘entered into, whereby it was agreed that the said action and the pursuer's claim should be referred to arbitration, in accordance with the rules of the society, and the action therefore was allowed to stand dismissed, in terms of the Act 16 and 17 Vict., cap. 80, sec. 15.’

Then, in the next article (12th) of his condescendence, the pursuer goes on to set out the law of the Association in accordance with which the arbiters were to be chosen. But in place of conforming himself to that law by getting arbiters appointed by the Association, the pursuer states, in article 13 of his condescendence, that the ‘Helensburgh Lodge’ has named arbiters, and he maintained in argument that that lodge must be held to be the ‘body’ referred to in the law quoted in condescendence 11, by whom the arbiters fell to be nominated. The Lord Ordinary, however, can see no ground whatever for that contention. On the contrary, he thinks it quite clear that, by the expression ‘the body,’ in the law quoted in condescendence 11, is meant the Association. Nor can the Lord Ordinary think it competent for the pursuer to lead evidence, as he said he was ready to do, in order to prove that according to the practice of the Association the expression ‘the body,’ in the law referred to, meant the local lodge; for it is obvious there can be no practice since 1869, when the laws first came into operation, that could affect the matter. The pursuer, indeed, did not say that there was; but explained that he proposed to enquire into the practice under a prior set of laws, which are not founded on in the present action at all. Clearly, and in any view, such a course is quite inadmissible. The Lord Ordinary has had no hesitation, therefore, in holding that, by the expression ‘the body,’ the Association, and not the Helensburgh Lodge, is meant. And if this be so, the Lord Ordinary cannot doubt, having regard to the statement of the defenders in article 7 of their statement of facts, that the pursuer has had it all along, and has it now in his power, to get his claim or dispute with the Association considered and determined in the only way in which it can competently be considered and determined under the constitution and laws of the Association.

Such is, shortly, the explanation the Lord Ordinary has to offer of the ground upon which he has proceeded in dismissing as he has done the present action.”

The pursuer reclaimed.

At advising—