Scottish Court of Session Decisions

An action was raised in the Sheriff Court of Lanarkshire by James M'Cafferty, labourer, Glasgow, against James M'Cabe, stevedore, Glasgow, concluding for payment of £500 as damages in respect of an accident sustained by the pursuer at a time when he alleged he was in the employment of the defender.

The pursuer averred—“(Cond. 1) The pursuer is thirty years of age, and is a stevedore's labourer, and on 15th December last he was in the employment of the defender, who is a stevedore in Glasgow. Denied that the pursuer was in the employment of P. & J. M'Cabe, as Patrick M'Cabe died about a year ago, and James alone carries on business now under his own name.”

The defender averred—“(Ans. 1) Admitted that the pursuer is thirty years of age, and is a stevedore's labourer. Quoad ultra denied, and explained that on said date pursuer was in the employment of P. & J. M'Cabe, stevedores in Glasgow.”

The defender denied the truth of the pursuer's account of the accident, and contended that he was not responsible for it, and further pleaded—“(2) The pursuer not having been in the employment of the defender at the time when he received his injuries, the defender should be assoilzied, with expenses.”

The Sheriff-Substitute ( Balfour) on 24th February 1898 allowed the pursuer a proof of the averments contained in the first article of his condescendence.

The pursuer appealed to the Court of Session for a jury trial.

On the case appearing in the Single Bills, the appellant having moved the Court to order issues, the respondent submitted that the proof allowed by the Sheriff-Substitute should first be proceeded with, on the ground that it dealt with a separate question of fact which might itself be sufficient to decide the case. He quoted in support of his contention the cases of M'Leod v. Pirie, November 15, 1893, 20 R. 381, and Conolly v. Young's Paraffin Light and Mineral Oil Co., November 17, 1894, 22 R. 80.