Scottish Court of Session Decisions

This was an action at the instance of David Wood, cabman, Edinburgh, against the North British Railway Company, in which the pursuer concluded for payment of the sum of £100 as damages for being assaulted and illegally arrested by the servants of the defenders while acting in the course of their employment.

The pursuer averred that on the evening of Saturday, 10th September 1898, he was engaged to drive a hire to the Waverley Station, of which the defenders were proprietors; that when the pursuer was driving down the approach to the station he found he could not get into it because of some cabs in front; that the hire thereupon left the pursuer's cab; that cabs were bound by the rules regulating vehicular traffic entering and leaving the station to leave by an exit lane parallel to and to the south of the entrance approach; that in terms of the Edinburgh Hackney Carriage Bye-laws 1887, sec. 55 (20) the north side of the entrance approach was a public cab stance; that when the hire left him the pursuer's cab was at this stance, and there were other cabs in front of and behind him; that it is usual for cabmen who have driven a hire to the station to take up a position on the stance in hope of getting a hire; that immediately after the pursuer's hire had left him “a person named Walter Wilson, in the service of the defenders in the capacity

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of what the defenders call a railway constable, and employed in and about the said railway station, appeared and ordered the pursuer and some other cabmen to drive off from said stance, alleging that cabs other than those belonging to Croall & Sons, Limited, had no right to be there; that the cabmen drove off towards the exit lane, and that when driving towards the exit lane the pursuer was hailed for a hire, which the pursuer accepted, as he was bound to do, being then disengaged, and jumped off his box for the purpose of placing thereon a trunk, part of the luggage of those whom he was to carry. He denied that he was plying for hire when ordered to move off.

The pursuer further averred as follows:—“(Cond. 5) … While he was in the act of placing said trunk on his cab, the said Walter Wilson came alongside and knocked the trunk out of the pursuer's hands, it falling heavily to the ground. While the pursuer was remonstrating with the said Walter Wilson for doing this, the parties who had wished to use pursuer's cab, lifted the trunk, and hailed the cabman immediately behind the pursuer, who drove them off from said railway station. … (Cond. 6) The pursuer then mounted his box with the intention of driving off from said railway station, when the said Walter Wilson and another servant of the defenders, also employed as what defenders call a railway constable, named Thomas Hulse, also in the service of the defenders, and employed in and about said railway station, jumped up on pursuer's cab, seized him, and dragged him heavily to the ground, a third person named George Wallace, also in the service of the defenders, and employed in and about said railway station in the same capacity, taking hold of the horse's reins at its head. The two first-mentioned persons without any warrant, seized pursuer and marched him in their custody to the Waverley Market Police Station, and there charged him with committing a breach of the peace. On 20th September 1898 the pursuer was convicted in Edinburgh Police Court of said charge and was fined 7s. 6d. with the alternative of 48 hours' imprisonment. … The pursuer had not in fact committed any breach of the peace. (Cond. 7) The pursuer was assaulted by the said Walter Wilson and Thomas Hulse by being seized by them, and dragged from his cab to the ground. He Was also injured in his feelings and reputation by being conducted by said persons to said police office. If they wished to bring a charge of breach of the peace against pursuer, it was their duty to have taken his name and cab number, after which he ought to have been proceeded against in ordinary legal form, by citing him to appear to answer to the charge. Their acts on said occasion towards pursuer were malicious and without probable cause. They acted towards pursuer on said occasion illegally, wrongously, and oppressively, and with gross excess of what was necessary or proper, even assuming that a breach of the peace had been committed by pursuer, in assaulting the pursuer, taking into custody, and in marching him in their custody to the police office. (Cond. 8) The said persons were and are the servants of the defenders, who define their duties, and on whose instructions they act. They were on the occasion in question, and are employed at and about the Waverley Railway Station in carrying out the duties of constables or policemen. In acting as they did towards the pursuer they were acting in the course of their employment, although they grossly exceeded what was necessary or proper.”

The pursuer pleaded—“(1) The pursuer having been assaulted by the servants of the defenders, while acting in the course of their employment, the defenders are liable in reparation therefor. (2) The pursuer having been illegally, wrongously, and oppressively seized and marched in custody of the defenders' servants, while acting in the course of their employment, from Waverley Railway Station to Waverley Market Police Office, the defenders are liable in damages.”

The defenders pleaded—“(1) The pursuer's statements are not relevant, or sufficient in law to sustain the conclusions of the summons. (2) The pursuer not having been assaulted by the servants of the defenders while acting in the scope of their employment, the defenders are entitled to absolvitor, with expenses.”

On the merits the defenders alleged that the Hackney Carriage Bye-Law, 1887, No. 55, had been repealed by a bye-law made in 1896; that in terms of the new bye-law, which was in force on 10th September 1898, the cab stance at the Waverley Station was “the south and north platforms inside station, as may be arranged by the North British Railway Company;” that the stance, as arranged by the Railway Company, was wholly situated on their private property, and had been let to Messrs John Croall & Son, and that other cabs were not allowed to ply for hire there; that the pursuer was not entitled, and knew that he was not entitled, to ply for hire in the approach to the station, but that when ordered to leave the station he refused to do so and created a disturbance; that in consequence of his conduct it became necessary for the constables Wilson and Hulse to arrest him and convey him to the police office, and that they only used such force as was necessary. They admitted that the persons named by the pursuer were employed as constables at the Waverley Station.

On the merits the defenders pleaded—(3) that the arrest of the pursuer, and his conveyance to the police office were rendered necessary by his conduct; and separatim, (4) that the defenders' servants were acting in virtue of the powers conferred upon them by the Act 3 and 4 Vict. c. 97, sec. 16.

By interlocutor dated 24th January 1899 the Lord Ordinary ( Kincairney) approved of the following issues, and appointed them to be the issues for the trial of the cause:—“1. Whether, on or about 10th September 1898, the pursuer, at or near the Waverley Railway Station, Edinburgh, was assaulted

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by Walter Wilson and Thomas Hulse, while acting in the course of their employment by the defenders at said Railway Station, to the loss, injury, and damage of the pursuer? Damages laid at £50 sterling. 2. Whether, on or about 10th September 1898, the pursuer was illegally, wrongfully, and oppressively taken into custody and marched from said railway station to Waverley Market Police Office in custody, by Walter Wilson and Thomas Hulse, while acting in the course of their employment by the defenders at said railway station, to the loss, injury, and damage of the pursuer? Damages laid at £50 sterling.”

Opinion.—“This case has appeared to me to be difficult, and it may be that the pursuer may not find it easy to get a verdict. Still I am unable to say that his averments do not warrant the issues which he proposes. He certainly avers assault. The defenders say that he was trespassing on the company's premises, and that their servants, the railway constables, did no more than use the justifiable force required to remove him. It may be so; but I think that cannot be taken for granted. Then it was argued that they cannot be held to have authorised their servants to commit an assault, and therefore cannot be liable for it, although their servants might be; but this again raises a question for a jury. If it be shown that the constables were acting wholly outwith their authority, the Railway Company may not be liable; but if the jury take the view that they were merely chargeable with excess in the performance of their duty, then it is possible that the Railway Company may be liable, although the act of the servants may amount in law to an assault. On this point the cases of Maxwell v. Caledonian Railway Company, 5th February 1898, 25 R. 550; Gillespie v. Hunter, 28th May 1898, 35 S.L.R. 714; and Dyer, 1895, 1 Q.B. 712, were referred to. I think that on this record, in which the defenders appear to justify the act of their servants, it is not possible to hold at this stage that they were not liable for them.

The second issue is the averment that the constables seized the pursuer without a warrant and marched him to the police office, where they charged him with a breach of the peace, of which he was convicted. It is pleaded in defence that the constables' proceedings were warranted by section 16 of the Act for Regulating Railways (3 and 4 Vict. cap. 97). That section, however, refers to trespass and obstruction of the officers of the railway company, not to breach of the peace, and it does not expressly authorise the railway officers to apprehend the offender without a warrant, on which point the pursuer quoted Peggie v. Clark, 10th November 1868, 7 Macph. 89, and Leask v. Burt, 28th October 1893, 21 R. 32. The pursuer urged that this course was peculiarly unjustifiable in his case, because as a cabman wearing a cabman's badge he was necessarily or presumably a law-abiding person who could be distinguished and reached at any time. It seems to me that it will be for the jury to say whether what the railway constables did was justifiable in the circumstances. The defenders maintained that the conviction of the pursuer of breach of the peace proved without more inquiry that the police constables had acted justifiably. But I do not think that necessarily follows. The conviction can only show that the pursuer was guilty of breach of the peace, if it shows conclusively even that; but it does not follow of necessity that the manner in which the railway constables treated him was unobjectionable. The defenders founded strongly on the case of Gilchrist v. Anderson, 17th November 1838, 1 D. 37; but I think that case was very different. There a party who had been convicted of assault raised an action against the party whom he was convicted of having assaulted, concluding for damages on the ground that he had truly been the assaulted person and had been wrongously convicted. But that action was held incompetent because he had not endeavoured to set aside or otherwise challenged the conviction.

Lastly, the defenders maintained that there had been only one connected act by the constables, and that there ought not to be two issues. But the pursuer has stated two distinguishable acts of a somewhat different character, although the one followed the other immediately, and I think he is entitled to put them in separate issues. The defenders did not suggest a single issue, and I do not think it would be very easy to frame one. On the whole, I think the case may be tried by the issues proposed.”

The defenders reclaimed, and also gave notice of a motion to substitute the following issue for the issues approved by the Lord Ordinary:—“Whether, on or about 10th September 1898, the pursuer, at or near the Waverley Railway Station, Edinburgh, was assaulted, taken into custody, and marched to Waverley Market Police Office in custody by Walter Wilson and Thomas Hulse, while acting in the course of their employment by the defenders, at said railway station, to the loss, injury, and damage of the pursuer? Damages laid at £100 sterling.”

Argued for the defenders—(1) The pursuer's averments were irrelevant, ( a) According to his account there was an interval of time between the order to drive off and the assault and arrest. The pursuer alleged that when he was quietly driving off from the station he was gratuitously assaulted and unjustifiably arrested by the constables. If that were so the constables were clearly not acting within the scope of their employment— Walker v. South-Eastern Railway Company (1870), L.R., 5 C. P. 640. ( b) There was no relevant averment that the defender's servants were acting within the scope of their employment. A bare statement to that effect was not sufficient. It must appear from facts and circumstances averred that it was so— Gillespie v. Hunter, May 28, 1898, 25 R. 916. The case of Maxwell v. Caledonian Railway Company, February 5, 1898, 25 R. 550, had no bearing upon the present. (2) Alternatively.—The pursuer, on his own

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showing, was refusing to leave the station when ordered, and the constables were justified in arresting him in virtue of their powers under the Railway Regulation Act, 1840, sec. 16. (3) This action was barred in respect of the conviction in the Police Court, which was still standing against the pursuer, and which he had not submitted to the review of the superior Criminal Court— Gilchrist v. Anderson, November 17, 1838, 1 D. 37; Kennedy v. Wise, June 21, 1890, 17 R. 1036. (4) The alleged assault and arrest were not separate acts, the alleged assault being merely incidental to the arrest, and there should therefore only be one issue— Ferguson v. Colquhoun, July 19, 1862, 24 D. 1428.

Counsel for the pursuer was not called upon except as to points (3) and (4) in the above argument.

Argued for the pursuer—(1) As to the argument founded upon the case of Gilchrist, cit., in the first place there was no plea stated, but apart from that the case of Gilchrist was distinguished from the present. There the pursuers attempted to get this Court to review the decision of a criminal court, which was plainly incompetent. Here the complaints which the pursuer put forward in the present action had never been investigated by any Court. The pursuer did not complain of being convicted of breach of the peace. He complained of being assaulted and arrested illegally. Whether he had been guilty of breach of the peace or not, the defenders' servants had no right to assault him and arrest him. The railway constables had no right to arrest for breach of the peace under the Railway Regulation Act 1840, section 16. (2) The assault was a separate wrong, and two issues should be allowed. At least if only the second were allowed the words “wrongfully and forcibly” must be inserted before the words “taken into custody” in the issue proposed by the defenders.