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servant of the ganger or station master, whose orders he is bound to obey—or, for that matter, of the general manager himself; but it is equally unreasonable to contend that the relation of employer and employed can be wholly disregarded in considering the action and limits of the liability in question. There does not seem to be any insuperable difficulty in devising a middle course, at once rational and sufficient, which would afford to the men protection from all risks which do not reasonably come within their contract, without imposing upon the companies a liability against which they would be powerless to protect themselves, and the amount of which would necessarily be formidable, probably ruinous. When it is recollected that the mortality from accident among railway servants in England alone exceeds 1,500 per annum, it will be perceived that we are dealing with no merely speculative grievance.
VII. SELECT CASES: SCOTTISH.
By Hugh BARCLAY, LL.D.
Master's Liability for Fault of Servant. A miner engaged in work of a company whose managers were competent persons, but from fault on the part of the underground manager, a boy lost his life whilst engaged under a contractor to form a level : Held, by seven Judges, in an action for reparation by the father of the boy against the mineral company, that they were not liable, because liability for injury applied only to strangers, and not to a person connected with the work, and not from personal fault of the master. Per Lord President (Inglis) : " As the result of the whole authorities, it appears to me that one of the conditions subject to which every man must become a member of one of these great organisations of labour, is that he shall take on himself all the perils naturally incident to the work he undertakes, without looking to any one else to guarantee him against, or indemnify him for, injury sustained from the occurrence of such perils. This does not interfere with the principle for personal liability for personal wrongs or negligences, but it excludes all notion of what, for the sake of distinction, I shall call secondary responsibility." Lord Justice Clerk (Lord Moncreiff) dissented : “ The propositions which I laid down to the Jury were two: first, that the company were liable if the person injured was not their servant, but was the servant of an independent contractor, and the second was that, on the terms of the contract, Gardner was an independent contractor, and that the deceased was his servant, and not the servant of the company; and the provisions of the Mines Regulation Act, and the rules of the pit under them, did not affect the relations of the parties in this respect.” 10 Feb., 1877. Woodhead v. Gardner's Mineral Company, 4 S.C., 469.
Master and Servant--Liability. In an action of damages by a miner against his masters for personal injury sustained : Held, that there was no proof of fault on the part of the masters, and, they therefore were assoilzied. Per Lord Ormidale: “ It has been held as settled that the owners of pits are not responsible for injuries sustained by the miners in their employment through the fault of their fellowworkmen, including the manager, engaged in the same common employment. All that can be expected is that they appoint proper and competent managers and others to direct and superintend and carry out the operations." 23 June, 1877. Stewart v. Coltness Iron Company, and Dewar, 4 S.C., 952.
Principal and Agent-Frauds. A stockbroker's clerk, who had authority to represent his master on Exchange, entered into transactions for his own behalf in the principal's name, and for which he was bound. To meet a balance due by the principal, resulting from the speculations of the clerk, the latter forged a cheque on a bank and applied the proceeds to that purpose: Held, the principal was bound to repay the sum to the bank in respect-Ist, that the money was obtained by the fraud of his representative; and 2nd, that he had been benefited by the fraud to that extent. Per Lord President (Inglis) : “ An agent will not be held authorised to commit a forgery or any other wrong, but if in the course of his doing business he does commit a wrong or crime,
and if the principal is benefited, then he is liable to the extent to which he is benefited.” The English cases of Scholefield (9 March, 1859) and Barwick (18 May, 1867) were chiefly relied 9 March, 1877. Clydesdale Bank v. Paul, 4 S.C., 626.
Bankruptcy-Bill of Lading. A. shipped a cargo for a foreign port, and made out the bills in name of B., and authorised him by letter to hypothecate the goods, and in return A. obtained bills from B. which he discounted with a bank, handing them the bills of lading and letter of authority. The bank sent these to a merchant at the port of delivery, who sold the goods, which only partially realised the advance. A. became bankrupt, and B. insolvent: Held, that in ranking on the estate of A. the bank was not bound to value and deduct the goods, as in a question with them the goods must be held the property of B. Per Lord Adam: “ The bank did not transact in any way with A., but with B., with whom, as holders of the bills of lading, and therefore as having a title to the goods, they were entitled to transact as owners. The bank are bound to account with B. for the proceeds of the goods, and not to A.” The English case of Brett (6 Ch. App. 838) was referred to. 13 March, 1877. British Linen Co. v. Gourlay, 4 S.C., 651.
Ship-Carrier-Bill of Lading-Negligence. A bill of lading very confusedly expressed had the usual clauses—" to deliver the goods in like good order and condition as received.” “But not to be accountable for leakage, breakage, &c., however caused, or for certain enumerated perils, whether arising from the negligence, default, or error in judgment of the pilot, master, mariners, engineers, or persons in the service of the ship, or for which acts the shipowner is liable or otherwise." A Jury returned a special verdict finding that damage had been sustained to the cargo through the negligence of some of the crew. The Court ordered the verdict to be entered up for the defenders, the shipping company, in an action by the freighters for damage done to a cargo of wheat by admission of sea water. Per Lord President (Inglis) : “ The proximate cause of the injury was sea water, but that sea water was admitted to the hold of the vessel by the negligence of the mariners, and for that, at common law, and independent of express stipulations in the contract of affreightment, there cannot be the smallest doubt that the shipowners are liable." “ There is nothing to
prevent shipowners stipulating, and shippers agreeing that the ordinary liability of the shipowners shall be entirely discharged, and, although in form they undertake to deliver in the like good order and condition, they shall not in effect be liable to do so." “ Conditions must be interpreted contra proferrentem, on the other hand there is another kind of construction applicable to a bill of lading, and which must not be subjected to a too critical verbal interpretation. Documents of this kind are grammatically expressed, and just as little are they expressed with any logical precision or accuracy, and therefore we must be content to construe the language, not critically, but according to what is the apparent meaning of parties.” “I cannot say I arrive at the conclusion of entering the verdict for the defenders without regret, because I am perfectly satisfied that the limitation of the liability of shipowners in the manner here stipulated, making them not responsible for any amount of negligence or misfeasance upon the part of their own servants is likely to lead to a great deal of negligence, and to be attended with very disastrous results. But if parties will contract in this form, I can do nothing but give effect to their contract.” 16 March, 1877. Steel and Craig v. State Line Steamship Company, 4 S.C., 657
Inspection by Medical Persons of a Pursuer before Trial.
In an action for personal injury the defenders' agent required the pursuer to submit himself to the inspection of three medical gentlemen. The pursuer objected to one of their number as being the medical adviser of the defenders' company, and on other personal grounds. On a motion for an order the Lord Ordinary refused the order in so far as it applied to the gentlemen objected to. On an appeal the Court granted the order applicable to the three. Per Lord Justice Clerk (Lord Moncreift): “ The pursuer says, that we are not to interfere with his liberty in the matter, because to grant the order craved would be on the one hand practically to compel him to be precognosed, and on the other to subject him, while suffering under serious nervous affection, to an interview which must necessarily be disagreeable to him in the extreme. I think there is no doubt, however, that we have power to make this order which the Lord Ordinary has refused, if we are satisfied that it should be granted. When a man says that he has suffered personal injury, and craves reparation therefor, the question of his physical condition after the alleged injury is the most important element in the case. If he is not to be inspected
prior to the trial, it is evident that the defenders must be put to a most serious disadvantage, amounting almost to deprivation of skilled medical evidence.” “ I should be slow in a matter of such delicacy as this to Gisregard any objection made to examination by a particular doctor, even though the objection appeared to be somewhat fanciful. But I am satisfied that the objection taken here should not be entertained, and that the order craved should be granted." 17 May, 1877. Funner v. North British Railway Company, 4 S.C., 686.
Ship-Merchant Shipping Acts, 1854 and 1862. Held, that the owner of a vessel, who was entitled to have his liability for damages, caused by the collision of his vessel with another, restricted under Section 54 of the Act, 1862, after presenting a petition for restriction, under Section 514 of the Act, 1854, was entitled to state a claim in right of parties whose claims he had settled extra-judicially before presenting the petition, and so limit the ranking of the other claimants. Per Lord President (Inglis) : “ The only difficulty is that the claims settled are not properly here, and cannot be given effect to. Technically, perhaps, the claims are not here, as the money has been paid. But if the owner has satisfied and paid the claims that will not deprive him of the benefit of Section 54 of the Act, 1867, and make him liable to a greater extent than £8 per ton. There is nothing in the Statute, and nothing in common law to lead to such a result.” 19 May, 1877. Rankin v. Raschen and others, 4 S.C., 725.
Joint Stock Company-Act, 1862. Held, that persons dealing with the directors of Joint Stock Companies, although they must be held to have made themselves acquainted with the provisions of the statutes and articles of association, are entitled to assume that all notices of meetings and notices of resolutions have been properly given. Per Lord President (Inglis): “ I hold it to be perfectly clear law that third parties are not bound to inquire, but on the contrary are entitled to presume that everything has been regularly done in the summoning of the meeting of the company in which resolutions are passed. I think any other conclusion upon such a question would be attended with the most monstrous and inexpedient results." 6 June, 1877. Hecton v. Waverley Hydropathic Company, 4 S.C., 830.