Scottish Court of Session Decisions

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On 31st October 1910, Andrew Shaw, Dalry Road, Edinburgh, pursuer, brought an action against William Burns, Clifton Terrace, Edinburgh, defender, for £200 damages for having, as he alleged, given wrongous information to the police, in consequence of which he (the pursuer) was accosted in the street by two policemen and ordered to move on. The pursuer had been for about fifteen years prior to 1910 in the employment of Messrs W. & A. Gilbey, wine merchants, as cellarman and warehouseman at their stores in Clifton Terrace, Edinburgh. The defender during that time acted as manager for Messrs Gilbey at the stores in question.

The pursuer averred—“(Cond. 2) The pursuer's work was very arduous and his hours very long. He started work at 6 a.m. and did not finish till any time between 6 and 9.30 in the evening. He was allowed half an hour off for breakfast and an hour for dinner. In June 1908 the engineman at said stores turned ill, and thereafter the pursuer had also to do his work for him with the exception of about three months (October-January) each year. The pursuer's health, which had always been excellent, began to give way under the strain of so much work and so long hours, and about the month of June 1910 the pursuer began to feel very ill both physically and mentally, and had difficulty in sleeping at nights. A doctor was called in, and he ordered the pursuer to take a week's holiday. On the expiry of that period the pursuer returned to his work, but was only able to stay at it for two or three days when he again had to stop and go to bed. He was there after removed to the Infirmary, where he stayed for about three weeks, when he was discharged as recovered. A day or two thereafter the defender sent for the pursuer to come and see him at his office. The pursuer went, and the defender, after asking for the pursuer's health, immediately started to blackguard the pursuer's wife and the pursuer himself. It appears 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 in which pursuer and his wife were staying. The pursuer's wife was very much surprised and annoyed at such an intimation, thinking that it meant the defender was going to dispense with her husband's services altogether. She accordingly wrote to a former employer of her own, who, she was aware, was a friend of the head of Gilbey's firm, to see if anything could be done for her husband. In consequence of said letter a communication was received by the defender from the head of the firm in regard to the matter. The defender was much annoyed at receiving this communication, and at a second interview shortly afterwards between the pursuer and the defender the latter expressed himself in very angry terms with reference to what had been done by the pursuer's wife, and he then and there, after giving to the pursuer a small sum of money in name of salary for the time he was ill, dismissed him from the firm's employment. The defender clearly showed by his conduct and language that he was animated by feelings of the bitterest animosity towards both the pursuer and his wife.… (Cond. 3) The pursuer and his wife accordingly left the house which they had occupied at the stores and went to stay in lodgings. The pursuer asked the defender for a certificate of character as a workman, but the defender refused to give him one, although the pursuer had worked for him faithfully and well, and had never given the defender any reason to find fault with him. This the defender did to gratify the feelings of spite and ill-will which he had come to entertain against the pursuer and his wife, and to revenge himself against them for what the pursuer's wife had done as above condescended on. The result has been, that although the pursuer has applied for several situations he has failed to get one. On or about Monday, 12th September 1910, the pursuer had gone out for a walk, and on his way home, about 1 o'clock p.m., while he was waiting at the corner of Clifton Terrace and Grosvenor Street for the first edition of the evening paper to arrive, the defender, his wife, and a lady friend passed on the pavement. They saw the pursuer, and the pursuer saw them, but he took no notice of them. Shortly after they had passed, and while pursuer was still waiting for his paper, a sergeant of police and a police constable approached him. The sergeant asked pursuer if he was Shaw, to which pursuer replied in the affirmative. The sergeant then told the pursuer that he had had a complaint lodged against him for threatening Gilbey's workers. Although the pursuer stoutly denied the charge, for which there was not the slightest foundation, the constables ordered him to move on and not to stand about again as he was doing. The pursuer had no option but to do so. He was very much upset by the action of the constables, done as it was in broad daylight on the public street, and while there were many people passing.… (Cond. 4) … On inquiries being made it was discovered, and the pursuer now avers, that the defender on or about the said 12th September 1910 lodged a complaint with the Chief-Constable, which complaint was transmitted to the police-office at Torphichen Street, with instructions to attend to it. Said complaint was to the effect that the pursuer was threatening the defender's life or person, and was loitering about in order to get the opportunity of doing him (the defender) personal harm. (Cond. 5) The said charge and statement were absolutely false and without the slightest foundation, and were calumnious, and were made by the defender maliciously and without probable or any cause, in the knowledge that they were false, and they were made merely in order to gratify the feelings of ill-will which he then entertained towards the pursuer and his wife, as a result of the incidents above condescended on. The charge made against pursuer is that of a serious criminal offence, and falsely accused him with threatening the

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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 apprehended—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 police-officers 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 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—as he might have been honest but stupid — the 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

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had been done by the pursuer's wife.’ He also dismissed the pursuer from the firm's employment and refused him a certificate of character. The defender was within his legal rights in so acting, but the pursuer attributes his dismissal and the refusal of a character to malice on the part of the defender and to a desire for revenge. These averments of malice look very like an attempt to prove ignotum per ignotius. Prima facie the defender as deputy employer must be assumed to have acted honestly and from a sense of duty to the common employer. Even if the jury should think that he acted mistakenly and harshly, it would not follow that he acted maliciously. But I think that the pursuer has stated a case which entitles him to have the decision of a jury. I have adjusted the issue.”

The defender reclaimed. He also craved the Court to vary the issue approved of by the Lord Ordinary by deleting the words “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.”

Argued for reclaimer—The case was irrelevant, in respect that (1) malice was not relevantly averred, and (2) the injury complained of was too remote to be remitted to probation. (1) No action lay for giving information to the police, unless malice and want of probable cause were both relevantly averred. It was not enough merely to aver that the defender acted maliciously in making the charge complained of; facts must be alleged which would entitle a jury reasonably to infer malice. Moreover, such facts must be independent of the incident giving rise to the action, and must show antecedent ill-will on the part of the defender— M'Ternan v. Bennett, December 21, 1898, 1 F. 333, 36 S.L.R. 239; Macdonald v. M'Coll, July 18, 1901, 3 F. 1082, 38 S.L.R. 781; Brown v. Fraser, June 27, 1906, 8 F. 1000, 43 S.L.R. 741; Kufner v. Berstecher, 1907 S.C. 797, 44 S.L.R. 508. Such facts were a wanting here. (2) No damage could possibly result from merely being asked to “move on”— Sheppeard v. Fraser, January 26, 1849, 11 D. 446. That being so, the issue should be altered as proposed in the notice. The following cases were referred to— Webster v. Paterson & Son, 1910 S.C. 459, 47 S.L.R. 307; Lightbody v. Gordon, June 15, 1882, 9 R 934, 19 S.L.R. 703, and Lundie v. MacBrayne, July 20, 1894, 21 R. 1085, 31 S.L.R. 872.

Counsel for respondent were not called on.