Scottish Court of Session Decisions

This was an action of damages brought by Donald Ross, sometime head gamekeeper in the service of J. Pender, Esq., M. P., to recover damages for wrongous dismissal. The facts of the case as

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disclosed on a proof, are fully narrated in the Lord Ordinary's interlocutor and note.

On 26th July 1873 the Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, Finds, 1st, that in the year 1864 the pursuer was engaged by the defender to act in the capacity of gamekeeper at Cotton of Craigs, in the county of Forfar, as a yearly servant, from Whitsunday to Whitsunday, on the terms mentioned in the condescendence: Finds, 2d, that the pursuer continued in the defender's service at Cotton of Craigs till the spring of 1866, when he removed to the defender's estate of Minard, in Argyleshire, where he continued in the service of the defender as head gamekeeper, and on the same terms: Finds, 3d, that while in the defender's employment at Minard. the pursuer had the charge of the whole shootings in the defender's property, and on the adjoining property of Lochgair, held on lease by the defender, and was entrusted with the duty of engaging and discharging under-keepers and trappers, and of keeping the accounts in his own department: Finds, 4th, that the pursuer remained in the defender's service at Minard till the spring of 1872, when he received an intimation on the 4th May from the defender, through his agent at Inverary, to the effect that he was to look out for another situation, as the defender was dissatisfied with the pursuer and was looking out for another keeper: Finds, 5th, that the pursuer was thus dismissed from his situation without due notice on the part of the defender, and that the defender has failed to prove that he had any just grounds for dismissing the pursuer: Finds, 6th, that the defender has also failed to prove that the pursuer ever accepted the notice thus given him that he was to leave the defender's service, as a notice which the defender was legally entitled to give, or acquiesced in the same, or that the defender ever offered to retain the pursuer in his service upon terms which the pursuer was bound to accept: Finds, in these circumstances, in point of law, that the defender is liable in damages to the pursuer for his illegal dismissal. Repels the defences, and assesses the said damages at £75 stg., for which decerns: Finds the pursuer entitled to expenses, of which appoints an account to be given in, and remits the same when lodged to the Auditor to tax and report.

“ Note.—It is clearly established by the evidence in this case that the pursuer was engaged by the defender, in the year 1864, as a yearly servant, from Whitsunday to Whitsunday, and that, on the 4th of May 1872 he was dismissed from his situation for no sufficient cause, and without due warning. In such circumstances, the rule is fixed that a party so dealt with is entitled to reparation, to the extent at all events of a full year's wages and his fixed perquisites, unless the employer can instruct a defence sufficient to exclude the claim. M'Lean. 4th February 1813; Morrison, 27th June 1823 ( 2 S., p. 434); Finlayson, 6th June 1829 ( 7 S.. p. 717).

Now the special defences here relied on are,—1st. The pursuer's alleged acquiescence in the notice given him on the 4th of May; and 2d, An offer made on the part of the defender to receive the pursuer back into his service in the beginning of July 1872.

(1.) This defence of acquiescence, as the Lord Ordinary understands it, is rested on the fact that the pursuer, instead of leaving Minard at the Whitsunday term and intimating an intention to take legal proceedings, endeavoured to obtain another situation, and availed himself of the defender's permission to remain at Minard for a reasonable time after Whitsunday while so engaged. The Lord Ordinary, however, has been unable to Bee that there is anything in the pursuer's conduct, in this respect, which can be held to bar him from maintaining that he was improperly dismissed, and is therefore entitled to the compensation usually given in such a case. The pursuer and the defender's agent, Mr Wright, are not at one as to the precise time when the pursuer first intimated his objection to the legality of the notice. The pursuer says he all along did so, and it is evident that there has been some strong misunderstanding between him and the defender's agent as to what took place at their first meeting in May. But the real evidence of the case is, in the opinion of the Lord Ordinary, against the account of the matter given by the defender's agent, because it appears to him a most improbable thing that a yearly servant, which it is quite well known a gamekeeper is always understood to be, would without objection acquiesce in such a notice, and as soon as the pursuer failed to get a situation and had to remove, which he did under directions from the local manager of the defender, from the house occupied, in order to make way for his successor, he, on leaving Minard, duly intimated that he looked to the defender for payment of wages till he succeeded in getting another situation. This, in the special circumstances of the case, and even if no objection had previously been raised, would, in the opinion of the Lord Ordinary, have been a sufficiently timeous intimation to bar the plea that the objection of want of due warning had been waived; and the Lord Ordinary does not think that there is any evidence sufficient to instruct that the new gamekeeper was engaged on the faith of this alleged acquiescence. The only evidence of this is a statement, or rather inference to that effect, of the local agent for the defender. That gamekeeper, however, was not engaged by Mr Wright, but by the defender himself, who was not examined on the subject, and as the defender was plainly on the look out for another keeper, as stated in his letter of the 3d of May, when he dismissed the pursuer, and was actually in treaty, as shown by the correspondence of a few days after the 3d of May, with the person whom he ultimately engaged, the presumption, in the opinion of the Lord Ordinary, and in the absence of any evidence or explanation from the defender himself to the contrary, is, that the new keeper was engaged irrespective of any question as to what arrangement the defender might be able to make with the pursuer.

(2.) With reference to the offer made by the defender's agent to the pursuer, to look after the Lochgair shootings, the Lord Ordinary, though not without hesitation, has come to the conclusion that it was not one which the pursuer was in the circumstances bound to accept. The pursuer had at that time been dismissed from his situation as head gamekeeper, and, by written directions from the local manager of the defender, had removed from his house, and handed over the whole charge of the dogs, guns, and kennels at Minard to his successor, who had thus been fully installed in the

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situation which the pursuer had occupied as head gamekeeper at the family residence, with charge of the whole shootings, including the outlying shootings at Lochgair. In these circumstances, the offer ‘to take care of Lochgair shootings,’ which is what the jotting made at the time bears, was an offer of a very different position from that which the pursuer had for many years been accustomed to occupy, and it is plain to the Lord Ordinary, upon the evidence, that the pursuer refused it upon that account, and the Lord Ordinary cannot say that he thinks the pursuer was wrong. For although he was to get the same wages as before, the situation was evidently a subordinate one, with no charge of kennels, dogs, and gamekeeping establishment, but substantially that of an underkeeper or watcher, entrusted with the duty of looking after an outlying shooting. In this respect the case appears to the Lord Ordinary to fall within the principle of the rule laid down in the case of Gunn, June 3, 1801, (Hume p. 384), in which a party who had been engaged as housekeeper and cook, having been deprived of her charge as housekeeper, it was held that a party so treated was not bound to remain in service as cook alone.

But while the Lord Ordinary does not consider this offer as sufficient to exclude the pursuer's claim for compensation, it is one which in his opinion tends to show that the defender had no objection, on the ground of character, to take the pursuer back into his employment, and is one, therefore, which may on that account be held to afford grounds for modifying the damages, which the Lord Ordinary has accordingly limited to the amount of wages and fixed perquisites in use to be paid by the defender to the pursuer. These, according to the pursuer's evidence, which is not contradicted, amounted to about £73, 6s., which were paid quarterly, and the Lord Ordinary has fixed the damages at £75—the difference being a sum allowed to cover the interest due upon the instalments between the date when they became payable and the date of this decree.”

The defender reclaimed, and argued:—(1) The pursuer accepted and acquiesced in the notice given him; (2) The defender had offered to take him back into his service.

The pursuer was not called upon.

At advising—