Duguid v Fraser
| Jurisdiction | Scotland |
| Judgment Date | 17 September 1941 |
| Date | 17 September 1941 |
| Docket Number | No. 1. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Ld. Jamieson.
War—Emergency Legislation—Statutory Offences—Selling goods at price exceeding controlled price—Vicarious criminality—Trader charged with offence—Sale carried out by employee in course of employment—Mens rea—Prices of Goods Act, 1939 (2 and 3 Geo. VI, cap. 118), sec. 1.
The Prices of Goods Act, 1939, enacts:—Sec. 1. "It shall be unlawful for any person to sell, agree to sell or offer to sell, any price-regulated goods in the course of any business at a price which exceeds the permitted price, that is to say the basic price together with the amount of any permitted increase."
The owner of a shop was charged with a contravention of sec. 1 of the Prices of Goods Act, 1939. An employee, in the course of her ordinary duties, sold a price-regulated article at a price exceeding the permitted price. The owner had delegated to subordinates the ordinary work of the shop and the conduct of the business transacted therein, and he was not present at the time of the sale.
Held that the owner was guilty of the offence charged, in respect that he was the seller within the meaning of the Act, which imposed an absolute obligation upon traders, for a breach of which they could not disclaim responsibility on the ground that a sale had been made by an employee, provided that the employee was acting within the scope of the employment.
John Fraser, Inverness, was charged in the Sheriff Court at Inverness on a complaint at the instance of George Duguid, Procurator-fiscal, Inverness, which set forth "that on 12th December 1940, in your shop No. 1 Drummond Street, Inverness, you did sell to Ethel Strachan or Crichton, No. 12 Baron Taylor Street, Inverness, a price-regulated article under the Prices of Goods (Price Regulated Goods) Order 1940, dated May 10, 1940, made by the Board of Trade under section 2 of the Act first aftermentioned, namely a “Bourjois Evening in Paris scent, powder and cream set,” in the course of your business as an outfitter and house furnisher, at a price which exceeded the permitted price, namely at the price of 7s., the basic price of said set being 4s. 9d.; contrary to the Prices of Goods Act, 1939, section 1."1 The accused pleaded not guilty.
On 30th April 1941 the Sheriff-substitute (Grant), after evidence had been led, found the accused not guilty, and, at the request of the complainer, stated a case for appeal to the High Court of Justiciary.
The case set forth that the following facts were admitted or proved:— "(1) That the respondent carried on business under his own name as a draper, outfitter and house furnisher at 1 Drummond Street, Inverness; (2) that on 12th December 1940 an assistant in the said shop sold to the said Mrs Ethel Strachan or Crichton a price-regulated article under the Prices of Goods (Price Regulated Goods) Order, 1940, namely a “Bourjois Evening in Paris scent, powder and cream set”; (3) that the price charged by the said assistant for the said price-regulated article was 7s.; (4) that the basic price of said article was 4s. 9d.; (5) that the said assistant was a servant of the respondent and that in carrying out the said sale she was acting in the course of her employment; and (6) that the respondent was not present at the time of the sale.
The case further stated:— "I accepted the explanation of the respondent that he took no actual part in the management of the business of the shop at 1 Drummond Street, Inverness. I held that in law the respondent was not responsible for the actings of his said servant and found the respondent not guilty."
The question of law for the opinion of the Court was:— "On the facts above stated, was I entitled to find the respondent not guilty?"
The case was heard before the High Court of Justiciary on 16th September 1941.
LORD JUSTICE-CLERK (Cooper).—The charge against the respondent is that in his shop in Inverness he sold to a customer for 7s. a price-regulated article of which the permitted price was 4s. 9d., contrary to section 1 of the Prices of Goods Act, 1939.13 The sale and its surrounding circumstances are not in dispute. The sole specialty which gave rise to the argument in the Court below and before us depended upon the fact that the sale was made, not by the respondent in person, but in his absence by a subordinate, a servant, acting within the scope of her employment. The Sheriff-substitute, to quote the stated case, "accepted the explanation of the respondent that he took no actual part in the management of the business of the shop, … held that in law the respondent was not responsible for the actings of his said servant and found the respondent not guilty" We are now asked to determine whether the Sheriff-substitute was entitled so to find.
I pause to observe that the precise implications of the respondent's defence are not wholly clear to me. We are specifically told in the findings in fact that it was the respondent's shop; that he there carried on business in his own name as a draper, outfitter and house furnisher; and that the shop assistant in question was his servant, which I take to mean that she was appointed and remunerated by him and answerable to his orders in the discharge of her duties. We are further, I think, entitled to infer, though the findings are silent on...
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