Scottish Court of Session Decisions

David Mason, manufacturer, 123 Argyle Street, Glasgow, raised an action against John Orr, superintendent of police, Glasgow, concluding for payment of £500 as damages for assault.

The pursuer's firm were tenants of premises at 123 Argyle Street and 8 and 12 Maxwell Street, Glasgow. Their landlords were the Glasgow and South Western Railway Company, and their premises on the south and west were situated on the North Drive, forming part of the entry into St Enoch's Station, and had a back entrance thereon.

During the visit of the Duke and Duchess of Fife to open the Glasgow Exhibition in May 1901 they had occasion several times to enter or leave the city by St Enoch's Station.

The pursuer in the present action averred that a foot-pavement extending along the North Drive to the extent of 15 yards or thereby was part of the property leased by his firm from the railway company.

He further averred—“Cond. 7. In the course of said 3rd May it became known that the Duke and Duchess of Fife would again arrive at St Enoch Station at about four o'clock in the afternoon on their way to Renfrew, and on the approach of that hour the pursuer's work-girls, to the number of thirty or forty, again left his premises and lined the pavement forming part of the premises tenanted by him as aforesaid. The pursuer gave permission for them to do so, and about the time when the Royal party were expected to arrive he himself left the factory and stood on the pavement beside the work-girls. Observing a Glasgow and South-Western Railway inspector in charge of the arrangements at the station, the pursuer as a matter of courtesy asked him if he had any objections to the work-girls occupying the pavement. Said inspector said ‘Certainly not.’ The pursuer thereupon returned to the girls, who were standing quietly on the pavement beside the wall of the pursuer's premises. Thereupon an inspector of police began to molest the pursuer's workers, ordering them into the pursuer's factory. The pursuer told him that the pavement formed part of his premises, and that he had given his workers permission to stand where they did. (Cond. 8). The inspector thereupon went to get instructions from the defender, who was standing a short distance away. In the meantime the pursuer entered his premises and remained inside for a little. He was recalled to the North Drive by the noise caused by the defender and two or three policemen pushing his work-girls down the steps into the warehouse. The pursuer on coming into view observed the defender catching hold of the girls by the arms and pushing them with needless violence down the steps and towards the door of the warehouse. One of the workers was thrown down the stairs, and her foot was severely sprained by the fall. Another worker also fell and had her dress torn. The pursuer went outside the factory and on to the pavement forming part of his premises, and informed the defender that he must cease abusing the girls in the way he was doing. The defender thereupon got into a temper and caught hold of the pursuer by the arm, and pushed and dragged him with unnecessary violence down the steps, saying ‘I will

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damned soon show you what I will do with you.’ The pursuer along with his work-girls was hustled by the defender and pushed down the steps in the direction of the glass door of his factory, and crushed and assaulted. The defender stationed two policemen on pursuer's premises at the pursuer's entrance, and prevented both the pursuer and his workers getting out of the premises, as they required and had a right to do.

The pursuer also averred that he was “thus assaulted and humiliated wrongously and maliciously by the defender in the presence of crowds of people, and also in the presence of his own servants,” and that he had suffered in reputation as well as in his feelings and person.

The defender denied that the pavement was part of any property let to the pursuer's firm, or that it validly could be let. He further denied that he had “laid hands upon the pursuer, or pushed or dragged him down the steps.”

He pleaded—“(1) The pursuer's averments are neither relevant nor sufficient to support the conclusions of the summons. (3) The defender having acted within the line of his duty, and without violence, and in the interests of the safety of the public, should be assoilzied from the conclusions of the action, with expenses.”

The pursuer proposed the following issue:—“Whether on or about the 3rd of May 1901, at or near the premises tenanted by the pursuer at North Drive, St Enoch's Station, St Enoch's Square, Glasgow, the defender assaulted the pursuer, to the loss, injury, and damage of the pursuer?”

The defender objected to an issue being allowed.

The Lord Ordinary ( Kincairney) on 3rd July 1901 pronounced an interlocutor approving of the issue.

Opinion.—“The pursuer proposes to put in issue whether the defender, who is Superintendent of Police in Glasgow, assaulted him. The defender has contended that there is no relevant averment of assault, but that in any case the pursuer cannot get an issue without malice and want of probable cause— Young v. Magistrates of Glasgow, May 16, 1891, 18 R. 825; Malcolm v. Duncan, May 17, 1897, 24 R. 747; and that there was no relevant averment of malice or want of probable cause— Innes v. Adamson, October 25, 1889, 17 R. 11. But Young and Malcolm were actions of damages for wrongous apprehension. This is an action of damages for assault, and if assault be well averred there is no need for an averment or an issue of malice or want of probable cause, and the circumstance that the defender is Superintendent of Police, and was acting in that capacity at the time of the alleged assault, seems to make no difference. I have had considerable difficulty in holding the averment of assault to be relevant, but I have come to the conclusion that it is. The defender denies in toto the pursuer's averments of assault, and if it appears at the trial that in what he did he was acting in the performance of his duty, and did not overstep its bounds, he will of course be entitled to a verdict. Meanwhile I think the case must go to trial, and that it may be tried on the issue proposed.”

The defender reclaimed, and argued—1. No issue should be allowed. The defender was in the course of executing his duty, and did no more than he was entitled to do when engaged in police duty. If a constable when on duty did some action ejusdem generis with police duty, to make a relevant case against him for such action there must be some averment analogous to that of malice in a case of wrongous apprehension, to the effect that the constable did something outside his duty— Malcolm v. Duncan, March 17, 1897, 24 R. 747, 34 S.L.R. 625; Fowler v. Hodge, November 3, 1896, 24 R. (J.C.), 17, 34 S.L.R. 161. The mere averment of “assault” here was not sufficient. It was not enough to say that the pursuer had been “pushed,” for that was an act clearly necessary to regulate the traffic and clear the pavement. The gravamen of the charge now seemed to be that the pursuer had been “assaulted” on his own steps, but this was all part of one continuous act, i.e., of clearing the pavement. This was a street where on ordinary occasions the public had a right to go, and the question of the title to the pavement had no significance. The police had right to be in the street as part of the general scheme of regulation of traffic, and were in no sense trespassers. 2. If an issue were allowed it should embrace details, such as “wrongfully and illegally pushed and hustled”— M'Gillvray v. Main, January 26, 1901, 3 F. 397, 38 S.L.R. 302; Maxwell v. Caledonian Railway Company, Feb. 5, 1898, 25 R. 550, 35 S.L.R. 449.

Argued for the respondent—1. The police had no right to interfere with the private rights of the pursuer on a locus which was his own property as leased by him from the Railway Company. Except by permission of the company the police had no right to be there. Nor had they higher rights than any other person—that is to say, they must do their duty and no more. The assault here was outside the scope of such duty. It was sufficiently averred that it was so. The defender's real line of defence was that he never touched the pursuer, and that was a plain fact for the jury. 2. “Assault” was quite a common form for an issue. Words such as “unnecessary violence” were not suitable for the case— Anderson v. Barr, March 11, 1847, 9 D. 929; Ewing v. Mar, December 22, 1851, 14 D. 314.

At advising—