Lindley Daniel Clark.

The law of the employment of labor online

. (page 4 of 32)
Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 4 of 32)
Font size
QR-code for this ebook

into will not operate to dissolve it, however,' but for an
employer to refuse to accept services except of a nature and
under conditions violative of the terms of the contract is in
effect a breach,'' for which the employer is liable as above
stated. (Sec. 11.)

While the death or sickness of an employee, preventing the
fulfillment of a contract, operates to terminate it, the assump-
tion being that the contract is for his personal services and not
for those of a substitute to be furnished by him or his personal
representative,^ the rule is not well fixed where the case is one
of the death of the employer. Some authorities hold that the re-
lation is so strictly a personal one that the death of the employer
effects a dissolution,® while in other cases a contrary position
has been taken.'' Acceptance of services, either by a surviving
partner or by the personal representative of the decedent,

1 Dickey v. Linscott, 20 Me. 453, 37 Am. Dec. 66 ; Clark v. Gilbert, 26 N.Y.
283, 84 Am. Dec. 189.

» Jones r. Judd, 4 N.Y. 411.

» .\ngle V. Hanna, 22 111. 429, 74 Am. Dec. 161 ; Carr r». Coal Co., 25 Pa. St.

* Curtis V. A. Lehman Co., 1 15 La. 40, 38 So. 887 ; Marx r. Miller, 134 Ala. 347,
32 So. 765.

' O'Connor v. Briggs, 182 Mass. 387, 65 N.E. 836.

• Lacey v. Getman, 119 N.Y. 109, 23 N.E. 426 ; Griggs v. Swift, 82 Ga. 392, 14
Am. St. Rep. 176 ; In re McPhee's Estate, 156 Cal. 335, 104 Pac. 455. Cal. Civ.
Code, sec. 1996.

' PhcBbe V. Jay, 1 111. 268 ; Hill v. Robeson, 10 Mies. 541.


would at least entitle an employee to a quantum meruit/ while
other courts exact payment as provided for by the original con-
tract.2 'Phe insolvency of an employer occurring after the
formation of a contract does not put an end thereto,' nor does
his insanity/ though as to matters of the latter nature, it may be
said that considerations that are personal to individual em-
ployers are of less general importance with the enlargement of
the scope of the operations of incorporated concerns in the
conduct of business.

I Either custom or contract may provide for the rescission of the
contract by notice. In such cases the law favors mutuality, so
that employer and employee shall stand on an equal footing as
to length of notice required and the forfeiture of wages, which
is the usual penalty for the violation of the agreement.* A
usual custom is one that requires notice for a length of time
equal to the interval between pay-days. Where a rule of the
employer is offered in evidence, it is for the jury to decide
whether the employee was properly instructed as to such rule
so as to be bound thereby.® Failure to give notice in accord-
ance with the terms of a contract is such a violation thereof as
to prevent the recovery of wages earned before the breach ; '
though it has been held that the abandonment of a contract
without having given the agreed notice does not forfeit the
wages earned, but only makes the employee liable for any dam-

' Louis V. Elfelt, 89 Cal. 547, 26 Pac. 1095.

2 Toland v. Stevenson, 59 Ind. 485 ; Ferira v. Sayres, 5 Watts & S. 210 (Pa.),
40 Am. Dec. 496.

» In re Silverman, 101 Fed. 219 ; Vanuxem v. Bostwick, 4 Pa. Cas. 532, 40 Am.
Dec. 598. ■• Sands v. Potter, 165 111. 397, 56 Am. St. Rep. 253.

' Fawcett v. Cash, 5 B. & Ad. 904.

• Diamond State Iron Co. v. Bell, 2 Marvel 303 (Del.), 43 Atl. 161.

' Naylor v. Iron Works, 118 Mass. 317.


ages caused by such abandonment.^ The employer is liable
in damages to an employee discharged without the agreed notice,
the measure of damages being the wages the employee would
have earned during the period of the notice, subject to the same
rules as in the case of the violation of a contract for a fixed
period ; ^ so also an employee quitting without notice in viola-
tion of his agreement will be held to a contract to forfeit the
wages for the period agreed upon.^

The matter of notice has been made the subject of legislation
in a few states, the uniform provision of the laws being that the
obligations as to time of notice and amount of forfeiture shall
be reciprocal ; * while a Connecticut statute ^ prohibits the re-
tention of wages because of failure to give notice, even where
there was an agreement requiring notice to be given.

Section 14. Clearance Cards. — The practice of asking for
a clearance card or a letter of recommendation before engaging
an applicant for employment does not, in the absence of custom,
affect employers to the extent of requiring them to furnish such
cards or letters to employees at the termination of their employ-
ment.' If, however, there is a custom to give such cards, and
the contract was made with mutual knowledge thereof, an ac-
tion lies for the failure to give one on the discharge of an em-
ployee.^ The courts will take judicial cognizance of the fact

> Hunt V. Otis Co.. 4 Mete. 464 (Mass.).
« Babcoek v. Appleton Mfg. Co.. 93 Wis. 124, 67 N.W. 33.
» Fisher v. Wabh, 102 Wis. 172, 78 N.W. 437 ; Willis v. Muscogee Mfg. Co.,
120 Ga. 597, 48 S. E. 177.

* Me., R.S. ch. 40. sec. 51 ; Mass. Acts 1909. ch. 514. sec. 120; N.J.. G.S. p.
2351, Acts 1904. ch. 64. sec. 27 ; Pa.. B. P. Dig. p. 2073 ; R.I.. G.L. ch. 198, sec.
25 : Wis.. A.S.. sec. 1728m. « G.S. sec. 4694.

• New York. C. & St. L. R. Co. v. Schaffer. 65 Ohio St. 414, 62 N.E. 1036;
Cleveland. C. C. & St. L. R. Co. v. Jenkins, 174 111. 398. 51 N.E. 811.

' Hundley v. Louisville, etc., R. Co., 105 Ky. 162, 48 S.W. 429.


that such a card is not necessarily a recommendation, but is
rather a statement of the cause of the termination of the em-
ployment, together with such other facts, whether favorable or
unfavorable to the employee, as the employer may see fit to
incorporate.^ Malicious falsity of statement, or even known
falsity without malice, would probably give a right of action
against an employer making such statements as to the reason
for discharge, at least where they result in preventing the em-
ployee from securing employment.^

The legislatures of some states have undertaken to compel the
furnishing of a statement of the cause of discharge, when re-
quested by the employee.' In a case in which the constitution-
ality of a statute of this character was challenged, the court held
that as the desired credentials were intended not for public, but
for private information, the law commanding that they be fur-
nished was void, as violating the right of the liberty of silence,
which is involved in the right of the liberty of speech ; saying
that "compulsory private discovery, even from corporations,
enforced, not by suit or action, but by statutory terror, is not
allowable where rights are under the guardianship of due pro-
cess of law." * By like reasoning the supreme court of Kansas
held that a similar law was unconstitutional ; ^ while a lower
court of the state of Ohio held that failure to furnish an em-
ployee with a written statement of the reason for his discharge
did not make the employer liable in a civil action for the penalty

* Cleveland, C. C. & St. L. R. Co. v. Jenkins, supra; McDonald v. Illinois C.
R. Co., 187 111. 529, 58 N.E. 463.

* Hundley v. Louisville, etc., R. Co., supra.

»Fla., G.L. sec. 2856; Ind., A.S. sec. 7078; Mo., Acts 1905, p. 178; Mont.,
A.C. sec. 3392 ; Ohio, Gen. Code. sec. 9012 ; Texas, Acts 1907, ch. 67.

* Wallace v. Georgia, C. & N. R. Co., 94 Ga. 732, 22 So. 579.

» Atchison, T. & S. F. R. Co. v. Brown, 80 Kans. 312, 102 Pac. 459.


provided for the violation of the statute, thereby making the
law of no effect.^ The Texas statute cited above was sustained
as a constitutional enactment in a case in which the doctrine of
the Wallace case was expressly rejected, and a judgment for
damages against a railroad company for refusing to state fairly
the reason for an employee's discharge affirmed.^ Without dis-
cussing the constitutionality of the statute, this judgment was,
on appeal, reversed, since the employer need only state truly
his reason for discharge, without detail as to circumstances,
even though another person might draw a different conclusion
therefrom as to the nature of the employee's conduct.^

In a few states the forgery of employers' certificates or clear-
ance cards is specifically made an offense.''

Section 15. Procuring Breach of Contract. — If a third per-
son unjustifiably interferes with a contract of employment,
either by persuading an employee to break a known contract, or
by procuring the discharge of an employee, the injured party
has a right of action against such person for damages caused by
his interference.^ And this is true even though the contract was
terminable at the option of the parties.® It is therefore of no
advantage to the defendant to show that the employer himself

• Crall V. Toledo & O. C. R. Co., 7 C. C. Rep. 132.

» St. Louis S. W. R. Co. v. Hixon. 126 S.W. 338 (Tex. Civ. App.).

« Same case, 137 S. W. 343 (Tex.).

< Ga., Acts 1899, p. 79 ; Minn., R.L. sec. 5053 ; Wis., A.S. sec. 4464b.

•Lumley v. Gye, 2 El. & Bl. 216; Jones v. Leslie, (Wash.) 112 Pac. 81;
Bixby V. Dunlap, 56 N.H. 456, 22 Am. Rep. 475 ; Walker v. Cronin, 107 Mass.
655; Angle v. Chicago, etc., R. Co., 151 U.S. 1, 14 Sup. Ct. 240; Huskie t.
GrifEn, 75 N.H. 345, 74 Atl. 595.

• Chipley r. Atkinson, 23 Fla. 206, 1 So. 934 ; Lucke v. Clothing Cutters, etc.,
77 Md. 396, 26 Atl. 505 ; Per contra. Holder v. Cannon Mfg. Co., 138 N.C. 308, 50
S.E. 681.


incurs no liability by discharging his employee ; ^ nor is it ma-
terial, so far as the right of action of a discharged person is con-
cerned, whether his discharge is procured by fraud or intimida-
tion, or merely by successful persuasion.^

In an action by an employee to procure damages for causing
his discharge, the declaration is usually made that it was will-
fully and maliciously procured ; but this signifies nothing more
than that the act was knowingly done to the apparent damage
of the person discharged, and without lawful justification on the
part of the instigator, i.e., as of competition in trade or employ-
ment.' Where the defendant did nothing more than to an-
swer an inquiry of an employer, stating such facts as led to the
discharge of the plaintiff, no damages can be recovered.^ So the
mere imparting of information, in the absence of fraud or co-
ercion, gives rise to no liability, though it in effect leads to a
discharge.^ The question of motive may be properly consid-
ered, and may be decisive in a given case," though the mere fact
of bad intent does not make that actionable which does not
amount to a legal injury. '^ Where, however, there is an improper
and malicious motive, not only actual but also exemplary dam-
ages may be recovered.^ The communication to the employer
need not be Ubelous per se, but if it is effective in procuring the

» Moran v. Dunphy, 177 Mass. 485, 59 N.E. 126.
' Moran v. Dunphy, supra.

'Haskins v. Royster, 70 N.C. 601, 16 Am. Rep. 780; London Guarantee,
etc., Co. V. Horn, 206 lU. 493, 69 N.E. 526.

* Wabash R. Co. v. Young, 162 Ind. 102, 69 N.E. 1003.

s Baker v. Insurance Co., 23 Ky. L. R. 1174, 1178, 64 S.W. 913, 967.
« Moran v. Dunphy, supra; Gibson v. Fidelity & Casualty Co., 232 111.
49, 83 N.E. 539 ; Plant v. Woods, 176 Mass. 504, 57 N.E. 1011.
» Allen V. Flood, 67 L.J.Q.B. 119.

• Gibson v. Fidelity & Casualty Co., suin-a.


discharge of the employee to his loss and damage, its publication
is actionable.^ Where, however, a discharge is procured on the
basis of representations as to misconduct on the part of an
employee, the charges being verified on investigation by the
employer, the informant is not liable in damages, nor does the
fact that he bore ill will to the discharged employee make him
S0.2 In fact, some courts have denied that motive should be
considered in connection with cases of this nature,' since if an
act is injurious and unlawful, it is actionable, irrespective of
motive, and whether malicious or not ; while if not unlawful or
injurious, it is not actionable, however maliciously performed.*
In another case it was said that motive is immaterial where the
acts considered are lawful, but if done A\ithout legitimate in-
terests to protect, it is unlawful to maliciously injure another's
business.^ The differences would seem to be more apparent
than real, though obviously some courts lay considerable stress
on the question of motive ; but the rule seems well stated in a
British case, in which it was said that an act which does not
amount to a legal injury cannot be actionable because done
with a bad intent.^

So if an employer brings action on the ground of enticement,
he must show that the act was ^villful or intentional, and that it
did injure, or was calculated to injure him, the actor being with-
out a justifiable cause. Malice is said to be of the essence of

' Hollenbcck v. Ristinc, 105 Iowa. 488, 75 N.W. 355.
' Lancaster v. Hamburger, 70 Ohio St. 156, 71 N.E. 289.

> Macauley u.Tierney, 19 R.I. 255, 33 Atl. 1 ; Bohn Mfg. Co. v. Holli3,54 Minn.
223,55 N.W. 1119.

* Payne v. Western & Atlantic R. Co., 13 Lea 507 (Tenn.).
» Ertz V. Produce Exchange, 79 Minn. 140, 81 N.W. 737.

• Stevenson v. Newnham, 13 C.B. 285 ; Allen v. Flood, supra.


such an action, but the charge of malice is supported by show-
ing that there was notice of the contract of employment, and
that the employee has been persuaded not to enter into or con-
tinue in the service contemplated thereby. The retention of
an employee whose services are due to another under an existing
contract, after knowledge of such contract, even though the
second employer did not know at the time of the engagement
that such a contract was in existence, is ground for action.^ Con-
tracts for piece work, where the work agreed for is abandoned
in an incomplete condition, are on the same footing as con-
tracts for a fixed term.'^ This principle is held also to apply
to employees engaged for a season, as for the making of a crop.'
Where a contract has been entered into, it is not necessary for
the maintenance of an action that the rendition of the service
be actually begun ; ^ but there must be a knowledge of the
contract, since intent to deprive the employer of service must
be shown.^ Where service is actually being rendered, there
need not be a binding contract to support the action, since the
employer is none the less entitled to at least the opportunity for
the services of an employee merely at will ^ or one under a con-
tract which could not be enforced against him, as of a minor,
without being required to submit to officious interruptions by
third parties.'' But a mere attempt without damage will
support no action,^ Where the employee has violated a void-

1 Butterfield v. Ashley, 6 Cush. 249 (Mass.) ; Campbell v. Cooper, 34 N.H. 49.
» Walker v. Cronin, 107 Mass. 555.

' Haskins v. Royster, 70 N.C. 601, 16 Am. Rep. 780 ; Daniel v. Swearengen,
6 S.C. 297, 24 Am. Rep. 471. * Lumley v. Gye, 2 El. & Bl. 216.

' Butterfield v. Ashley, supra.

• Salter v. Howard, 53 Ga. ; Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152.
7 Wood, M. & S., 2d ed., sec. 234 ; Keane v. Boycott, 2 H. Bl. 511.
» Hool V. Dorroh, 75 Miss. 257, 22 So. 829.


able contract of his own volition, or left service under a contract
at will, no action lies against a subsequent employer ; ^ so also
if there is an agreement to employ at the expiration of a terra of
hiring, even though otherwise a renewal of the contract might
reasonably be expected.^

Section 16. Statutes Forbidding Interference with Contracts. —
The same economic conditions that led to the enactment of laws
which attempt to prevent the violation of contracts, especially
where advances are involved, doubtless give rise to laws di-
rected against the enticement of employees who are under con-
tract for a given time.' These aim their penalties at "any
person who knowingly interferes with, hires, employs, entices
away or induces" an employee to leave the service of another,
or similar acts less particularly enumerated, and have been held
constitutional.'* The attempt entails the same penalty as the
actual performance under the Alabama and Georgia statutes.
The penalties are either fine or imprisonment, and may or may
not be coupled with a liability for any advances made to the
inveigled employee, or for damages suffered by reason of the
commission of the prohibited act. The right of action in dam-
ages is the only redress given in some states, thus making it only
civilly and not criminally actionable.

In so far as this action alone is contemplated, the statute only

» Langham v. State, 55 Ala. 114 ; Campbell v. Cooper, 34 N.H. 49.

* Boston Glass Co. v. Binnoy, 21 Mass. (4 Pick.) 425.

' Ala. Code, sec. 6850 ; Ark., Acts, 1905, No. 298 ; Fla., G.S., sec. 3232 ; Ga.,
Penal Code, sees. 121, 122. Act No. 390, Acts of 1901; Ky. Stat., sec. 1349;
La., Acts, 1906, No. 54 ; Miss., Code, sec. 1146 ; S.C, Cr. Code, sec. 359 ; N.C.,
Revisal, sec. 3365; Tenn., Code, sec. 4337.

< Tarpley v. State, 79 Ala. 271, Murrcll's Case, 44 Ala. 367; Hool v. Dorroh,
76 Miss. 257, 22 So. 829. Hightower v. State, 72 Ga. 482 ; Per contra, Peonage
Cases, 123 Fed. 671 (Ala. Stat.).


enforces the common law right, and actual damage must still
be shown. ^ Damages recoverable do not include debts due
the employer or landlord.'^ The statute may prohibit the en-
ticement of any one to leave his employer, or hiring him before
the expiration of his contract, without the consent of the em-
ployer. Under this law there is no offense where the employee
has not actually entered on the service.' On the other hand, a
second employer has been held liable for employing one before
the expiration of his contract, regardless of the fact that the
employee had already broken his contract,^ the statute prohibit-
ing such employment without the former employer's consent.
This agrees with the doctrine of the case at common law of
Butterfield v. Ashley, supra. In other cases ^ it was held that
there was no ground for criminal action for the mere employ-
ment of one who had left his former master. A statute of the
United States on this subject makes it an offense to procure or
entice any artificer or workman employed by the United States
in any arsenal or armory to depart from his work during the
term of his contract of employment, or, after notice of such
contract, to retain, hire, or conceal such workman.^ It is ob-
vious that such statutes must be construed strictly according
to their language, so that no generally applicable rule can be
laid down.

The interference may be prohibited no less for the safety of

* Hool V. Dorroh, supra.

« Chrestman v. Russell, 73 Miss. 452, 18 So. 656.
» Hendrix ti. State, 79 Miss. 368, 30 So. 708.

* Armistead v. Chatters, 71 Miss. 509, 15 So. 39. See also Tarpley v. State,

'Jackson v. State, 16 So. 299 (Miss.) ; Morris v. Neville, 79 Tenn. (11 Lea)

* 35 Stat. 1097, Comp. Stat. Supp. p. 1404.


person and property than for the sake of procuring the comple-
tion of a labor contract as ordinarily understood. Laws of this
sort are to be found in connection with mine regulations, for-
bidding the intimidation of or the interference with hoisting
engineers ; * or with the performance of the duties of railroad
employees,'^ or of employees of other quasi-public corporations.'

The giving of gifts or gratuities to an employee with intent to
influence him in relation to his employer's business, or the
acceptance by employees of such gifts is prohibited by statutes
of recent enactment in a number of states ; * so also of bonuses
or discounts to employees who purchase supplies or materials
for their employers, under most of the laws cited ; the same
prohibition may be applied to the giving or receiving of tips in
hotels or on common carriers.^ A dealer allowing an employee
a discount in violation of such a statute cannot recover any-
thing on his contract, the entire contract being made void by
the illegal act of granting discount.^

While these statutes are mentioned here on account of their
close relation to each other, it is clear that they are not all
designed strictly to prevent interference with employment, but
to protect in a manner the financial interests of the employer
and of the public.

Where intimidation is practiced in the interference, not only
is there civil liability, but such conduct is declared a penal offense

> Ala., Code, sec. 1029 ; Ind., Acts 1905, ch. 50, sec. 10.

» Del., R.C. p. 928 ; 111., R.S. ch. 114, sec. 109 ; Kans., G.S. sec. 2375.

» Me., R.S. ch. 124, sec. 9.

* N.J., Acts 1909, ch. 284; Wash., Acts 1909, ch. 249, sees. 426, 427; Conn.,
Acts 1905, ch. 99 ; Iowa, Acts 1907, chs. 183, 184 ; N.Y., C.L. ch. 40, sec. 439.

» Wash., Acts 1909, ch. 249, sees. 439, 440.

• General Tire Repair Co. r. Price, 115 N. Y. Supp. 171.


by the statutes of a number of states. Inasmuch as this phase
of the question is frequently introduced into cases involving the
activities and rights of strikers, its discussion will be deferred
until the subject of labor organizations is taken up.

Section 17. Right of Employer to Recover for Injuries to
Employee. — A doctrine that is obviously rooted in the older
view of close personal relationships is one that gives the em-
ployer a right of action against a third person who injures his
employee in such wise as to deprive the employer of his ser-
vices.^ The employer's right to recover does not interfere with
the employee's right to sue the same party for damages for such
personal injuries as he may have received.^ This doctrine, hke
that which allows a suit by an employer for the seduction of
a female employee ^ or for libel injuring the employee's character/
is grounded on the view that the employer has an interest or
property in the services of one in his employment; so that
where he is deprived of them, or their value is diminished, the
employer is entitled to redress, actual loss being necessarily
proved to support an action.*

A statute that may be noticed under this general head is one
that gives employers a right of action against persons selling
liquor to employees, producing intoxication and consequent
damage to the employer.^ Such laws may or may not require
previous notice not to sell ; they are to be strictly construed,

1 Woodward v. Washburn, 3 Den. 369 (N.Y.) ; McCarthy v. Guild, 12 Mete.
291 (Mass.).

« Rogers v. Smith, 17 Ind. 323.

» Furman v. Applegate, 23 N.J.L. 28; Nickelson v. Stryker, 10 Johns. 115
(N.Y.) ; Hewitt v. Prime, 21 Wend. 79 (N.Y.).

* Riding v. Smith, 13 Albany L. J. 441.

« Fluker v. R. Co., 81 Ga. 461, 8 S.E. 529.

e Wash., A.C. sec. 2945 ; Mass., R.L. ch. 100, sec. 63.


and where they give a right of action for damages only, no other
proceedings can be had under the statute, as by way of injunc-
tion to abate a nuisance, since the employer has no such prop-
erty in his workmen as to entitle him to a writ against one
keeping open a place to which they voluntarily resort.^

Section 18. Civil Rights of Employees. — A majority of the
states of the Union have enacted laws whose object it is to pro-
tect workmen in their contracts of employment while exercising
their rights as citizens. Such laws may be broad enough in
their terms to prohibit employers from interfering with their
employees in the exercise of "any natural right or any right or
privilege of citizenship ;" ^ or they may, as is most frequently
the case, direct their prohibitions against interferences with the
exercise of the right to vote, either by demanding an inspection
of the employee's ballot,^ or by printing on the pay envelopes
in use the names of candidates, or mottoes, arguments, or
threats intended to influence the political action of employees,
or the posting of any handbill or notice stating that, in case of
the success of any particular candidate or party, the establish-
ment will close.* Threats of dismissal or reduction of wages on
account of an employee's vote,^ or interfering with his candi-
dacy for office,® or otherwise attempting to influence his action
may also be made an offense. One state prohibits the appoint-
ment of an employer, manager, or foreman of railroad, mining,

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 4 of 32)