John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

. (page 21 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 21 of 77)
Font size
QR-code for this ebook


(]802\ '6 B. & 1'. 217. (Plaiutiir's (r) Cooper v. Phillips (lS;n), 4 (".

arm broken while driving defendant's .^ I*. TjSI ; Scllcn v. Norman {\9i2^), 4

Irani.) S<-nrvmn\. Cadell (1795), 1 C. &; P. 80.

Es].. 270, is over-ruled. {d) J,', v. S„ii//i, (1837), S C. »t P.

In Scotland it would seem that 153.

a master may compel a male do- ('■) (3 Anne), 1 Salk. 381.



master's duty to I'llOVIDE SUSTENANCP]. IHl

boy was put out as apprentice was indicted for refusing to
provide for him. In R v. Friend (/), a girl of thirteen or
fourteen had been apprenticed to the prisoner. He and his
wife were mdicted for having refused and neglected to supply
sufficient meat, drink, wearing apparel, bedding, &c. At a
meeting of all the Judges, except Lord Kenyon and Mr.
Justice Rooke, the opinion was expressed (Mr. Justice
Chanibro dissenting) that it was " an indictable offence, as a
misdemeanour, to refuse or neglect to provide sufficient food
bedding, &c., to any infant of temler years, unable to pro-
vide for and take care of itself (whether such infant were
child, apprentice or servant), whom a man was obliged by duty
or contract to provide for, so as thereby to injure its health."
In the subsequent case of R. v. Ridleij {g), Mr. Justice
Lawrence confined the liability to the case of children of
tender years and under the dominion of the defendant.
Tlie defects of the law having been revealed in the case of
the Sloanes in 1851, the 14 & lo Vict. c. 11, was passed.

The whole of this Act, with the exception of sections 3, 4,
5, 8 and 9, was repealed by 24 & 25 Vict. c. 95. Under
section 3 a register is to be kept of young persons under the
age of sixteen hired or taken as servants from any work-
house. Under section 4 such young persons hired from work-
houses or bound out as pauper apprentices are to be visited
periodically by the relieving officer.

The 24 & 25 Vict. c. 100, s. 2() (Offences Against the
Person Act, 18G1) says : —

"Whosoever, Leing legally liable, either as a master or mistress, to
provide for any apprentice or servant necessary food, clothing, or lodg-
ing, shall wilfully and without lawful excuse refuse or neglect to provide
the same, or shaU unlawfully and maliciously do or cause to be done
any bodily harm to any such apprentice or servant, so that the life ot
such apprentice or servant shall be endangered, or the health of such
apprentice or servant shall have been or shall be likely to be per-
manently injured, shall be guilty of a misdemeanor, and being convicted



(/) (1802), Russ. & Ky. 22 ; p. 181.
Stephen's Digest of Criminal Law, (g) (1811), 2 Camp. 650.



182 THE LAW OF MASTER AND SERVANT.

(lu'rcdl' shall be liable, at the discretion of the Court, tu be ke])t in penal
servitude for the term of three years, or to be imprisoned for any tenn
not exceeding two years, with or without hard lalxmr "(/().

Section 6 of the Conspiracy and Protection of Property Act,
1875 (88 &; 39 Vict. c. 86), makes it an offence punisliable on
summary conviction to wilfully and without lawful excuse
refuse or neglect to provide, when one is legally liable to do
so, a servant or apprentice with necessary food, clothing,
&c. (i).

[h) See also 31 k 32 Yict. c. 122, ss. 221 to 231, and 30 & 31 Vict. c.

s. 37. 124, s. 4 ; and as to sailor suing

(i) Part II. Chap. XIII. As to duties owners for not su])])lyiiig uipdiciuc,

of owner to provide food, medicine. Couch v. t^ter.l (18.'')4, 3 E. & B. 402 ;

&c., to seamen, see 17&18Vict.c. 104, 23 L. J. Q. B. 121.



CHAPTER XVII.

Master's duty to teach tuaue.

It is the duty of a iiiastor to teach liis apprcntico
the trade or profession to which he has been
apprenticed.

This follows fioui the very nature of apprenticeship. It
is in fact stipulated for in every indenture. Where two
partners agreed to teach an apprentice his trade and one of
them retired from the business, it was held that there was
a breach of the agreement (a). It is a breach of a contract
of apprenticeship for a master who has covenanted to teach
three trades to cease to carry on one of them ; and the
apprentice may refuse to continue serving (h). In Scotland
it has been held that if a master did not teach the apprentice
his whole trade and mystery — for example, if a stonemason
taught his apprentice only to hew stones— the contract might
be annulled (c).

It is an answer to an action by the father on the covenants
of an indenture for not teaching that the apprentice absented
himself, and thereby became incapacitated from serving as
an apprentice {(/).

(a) Couch man v. SiUaj- (1870), 22 smuggler, and that he seldom at-

L. T. N. S. 480 ; 18 W. R. 757. tended tlie shop, and took no care to

{b) EUcti V. Top}} (1851), 6 Ex. instruct the apprentice. The rele-

424 ; Batty v. J/on^•s(1864), 12 L. T. vancy of this (Jefence was not denied,

N. S. 832. but the Court thought it " not proved

(c) James v. Carswclls, 7th July that the apprentice was deprived of

(1794); Campbell's edition of Eraser's daily instruction by reason of the

Master and Servant, p. 360, where casual absence of the master."
reference is made to a curious case, {d) Hughes v. Hamphrajs (1827),

Gardner v. Smith, in which an ap- 6 B. & C. 680; 9 1). <fe R. 715 ;

prentice pleaded that his master had Jlaijmond v. Minton (1866), L. R. 1

given up, in a great measure, his Ex.244; ^Ycstwickw. 2'h^odor {IS7 b),

business as a joiner, and become a L. K. 10 Q. B. 224.



184 THE LAW OF MASTER AND SERVAKT.

"Where the teaching should be given, is either a question of
construction or of what is reasonable in the circumstances.
In Roycc v. CJiarlfon (c), the apprentice, son of Ann Charlton
of Mansfield, in the county of Nottingham, put himself
apprentice to defendant " of Mansfield in the said county of
Nottingham," and the mother agreed to provide food, clothing,
&c. The Court refused to imply an obligation to give
instruction at Mansfield, the place where the master carried
on business, and the parties to the indenture resided, at
the time of its execution. This decision, however, was
overruled, so far at least as out-door apprentices are con-
cerned, by the Court of Appeal in Eaton v. Western (/),
which was an action for refusing to continue the plaintiflf
as apprentice against the defendants, who had removed
their business to Derby from Lambeth, where it was car-
ried on when the indenture was entered into. The de-
fendants had required all their apprentices to go to Derby,
and had offered to pay their railway fares and increase their
Avages. Drawing a distinction between an indoor apprentice,
Avhom a master is bound to provide with food and board, and
an outdoor apprentice, maintained by his father, the Court
of Appeal thought the defendants' command to remove to
Derby unlawful and unreasonable.

If a master of an apprentice dies before the term for which
he agi'eed to instruct him is ended the apprentice will not be
able to recover the whole or any part of the premium on the
ground of failure of consideration (f/).

(c) (1881), L. R. 8 Q. B. D. 1. Jur. N. S. 153 ; 30 L. J. Ch. 222;

(/) W. N. July 15, p. 112;,SW/d- 9 W. K. 183; 3 L. T. N. S. 574.

tors' Journal, Julv 8, 1882, ]>. 5()2. Sec, however, Derby v. IJumhcr

(g) Whincupv.JIughcs (1871), I.. \i. (I8G7), L. IJ. 2 C. r.'247, ami s. 6,

6 C. P. 78 ; 40 L. J. V. P. 104 ; 24 sub-.s. 2, ol' Kiliplovors iuul Work-

L. T. N. S. 76; 19 W. P. 43'J ; J^cbb men Aet, 1875 (38 & 39 Vict. c.

V. England (18CU), 29 Beav. 44 ; 7 90).



CHAPTER XVIII.

master's duty in regard to servant's character.

A MASTER is not obliged to give his servant a
character. Should a master, in giving a servant a
character, state that which A^ould be jjrimd facie
libellous or slanderous, no action, in the absence of
malice, will lie.

It matters not how ranch the servant is entitled to a
character in fairness, and how cruel the refusal may be ; it has
not been disputed since the ruling of Lord Kenyon in 1800
in Carrol v. Bird (a) that a servant cannot sue his master
because the latter does not give him a character.

The above immunity does not arise out of any peculiarity
in the relation of master and servant (b). It is one of a large
class of exceptions instituted in the interests of society.
It is a particular application of a general principle, viz., that
a communication made bond Jide upon any subject matter
in which the party communicating has an interest, or in
reference to which he has, or honestly believes that he has a
duty, is privileged if made to a person having a corresponding



(«.) 3 Esp., 201. See also
Handlcy v. Mofatt (1872), 7 Ir. W.
C. L. 104. (The 2 Geo. I. c. 17, s. 4,
requires a nia.ster to give a certificate
of disohiirgc, and, in case of refusal,
the servant may a])ply to a justice :
held that the statutory remedy was
exclusive, and that no action for
refusing certiUcate lay against the



master.)

(b) Eric, J., in Cojhcad v. Richards,
(1846), 15 L. J. C. V. 273 ; 10 Jur.
984 ; 2 C. B. 569. The origin of the
exemption may, however, have some-
thing to do with the testimonials
retjuired by the 5 Eliz, c. 4, s. 10, to
be given to servants.



18G THE LAW OF MASTER AND SEKVAXT.

interest or duty (c). The master's privilege is but an appli-
cation of the general rule which shielded a person who wrote a
letter to his mother-in-law containing defamatory statements
respecting a person whom she Avas about to marry (d) ; a
person who, bond Jide heliew'mg that the plaintiff had stolen
a box from the shop of the defendant's master, went to his
master and said, " There was no one else in the room, and he
must have taken it(e);" one who inserted a libel of the
plaintiff in a correspondence with plaintiff's friend which was
begun with the plaintiff's concurrence in order to investigate
certain charges against him {<j) ; directors who in a report to
their shareholders stated with res23ect to their manager that
there was a deficiency of stock for which he was responsible
and that his accounts had been badly kept and had been
rendered to them very irregularly (Jt). This privilege has been
extended on the ground of public policy to communications as
to servants by their former employers. The best justification
which can be offered for it is the interest which employers,
who are responsible for the acts of their servants,
have in obtaining information as to the antecedents and
characters of those whom they take into their service (i).
But for this })rotcction no one who had much regard to his
safety would think of giving an unfavourable character.

Communications with respect to a servant's character will
be presumed to be bond fide, and a master will not be, in
general, required to prove or substantiate the truth of such
statements (/;). In order to support an action against a master

(c) See Parke, 15., in I'ooi/ood v. diu't : letter voluntary.)

SpiiriiKj (1834), 1 C. 11. & 11. at p. (c) Anumn v. Damm (1860), 8

iy:j ; 3 L. .1. Ex. at p. 351, a dictum ('. 15. N. S. SO/ ; 7 Jur. N. S. 47 ;

(luoted witli approval in many subse- 29 L. J. ('. P. 313 ; 8 W. K. 470.

ijucnt casi's, includin<( Whili'bj v. (q) Jlojm-ooil v. Thorn (1849),' 8

Ailama (1863), l.'i V. 15. N. S. 392; C. H. 293 ; 19 L. J. C. P. 94.

Jfarrison v. Busk (IS.^f)), 5 E. & IJ. {/i) Lairlc.ssv. Anglo-Egyptian Cottoii,

344 ; Spill v. Manic (1869), L. li. 4 Co. (1869), L. 11. 4 Q. 15. 262 ; 38

E.v. 232. 1.. J. g. H. 129 ; 17 W. K. 498 ; 10

(d) Todd v. Hawkim (1837), 2 M. B. & S. 226.

& liol). 20 ; 8 C. & r. 88. (Letter {i) Soi; Wi^litman, J., in Gardner

IV.im a person to his mother-in-law v. Sbtdr. (1H19), 13 Q. 15. 796; 18

eliarj^inj; tiie ])erson whom blio was L. .1. (}. 15. 331 ; 13 Jur. 826.

aliout to marry with grave miscon- (I:) Alvanh^y, CI., in ilogrrn v.



MASTEirS DUTY AS TO SERVANT S CHARACTER.



187



who has published matter 2')H7nd facie libellous respecting a
servant, malice in fact, that is, some wrongful act clone inten-
tionally, without just cause or excuse (/), must be proved ; and
the question will not bo allowed to go to thu jury unless there
be evidence of malice {rn). Its existence will not necessarily
be shown by the fact that the statements complained of are
not true. Malice may be provcul in so many ways that only
instarices can be given ; for example, proof that the comnmni-
cations were false to the knowledge of the person making
them (7i) ; the heinous or intemperate character of the libel
itself (o) ; the fact that statements were made unsolicited
and officiously (2>) — though that is not always conclusive — or



Clifton (1803), 3 B. & p. 587 ; Den
man, C.J., in Fountain v. Iktodle
(1842), 3 (,). 15. 5. A letter written
in answer to incjuiries about a servant
is not privileged in the sense that it
is protected from discovery, witliout
the person wlio refuses to pi'oduee it
pledging his oath that it will tend to
criminate him : IVchb v. Eust (1880),
L. K. 5 Ex. V>. 108.

(I) Bayley, J.'s, definition of malice
in Bromaqev. Protiscr (1825), 4 B. &
C. at p. 255.

(??!.) There "must be something
that is consistent only witli a desire to
injure the plaintiff, tojustifya judge in
leaving the question of malice to
the jury." Jervis, C. J., in If arria v.
Thomjjson, see note (n), citing -So/hy'/ -
ville V. Ilawl-iihi (1851), 10 cCB. 583 ;
20 L. J. C. P. 131 ; 15 Jur. 450. Kcl/i/
V. Partington (1833), 2 N. & M. 460,
is sometimes quoted as an authority
for the statement that " Slight
evidence is sufficient in these cases to
■warrant the jury in finding malice."
It i-s sulmiitted that the same rule as
to leaving (questions to the jury
applies to these a.s to other cases.

(n) Fountain v. Boodle (1842), 3
Q. B. 5. (Plaintiff employed as a
governess for upwards of a year,
during Avhicli time she was twice
recommended to other situations by
defendant ; dismissed abruptly, with-
out cause assigned ; lost another
situation, in consequence of the de-
fendant writing in answer to in(|uiry.



" I parted with her on account of
her incompetency, and not being
ladylike? nor good-temjiered." A
l)ostscript was added, " May 1 trouble
you to tell her that this is the third
time I have been referred to ? I beg
to decline any more applications."
The Judge directed the jury that the
occasion was privileged ; but some
proof of illwill having been adduced,
and there being no evidences to tin?
contrary, he held that there was a
question for the jury.) Harris v.
Thompson (1853), li3 C. B. 333.
(Defendant, director of two com-
panies, kc. ; plaintilf, an official in
both ; plaintiff dismissed from an
office for misconduct ; defendant com-
municated the fact to the directors of
the company ; and, in rejdy to the
inquiries, stated that one of the
reasons was, obtaining money by false
pretences : privileged communica-
tion. )

(o) Rorjers v. Clifton (1803), 3 B.
& P. 587. (Defendant quarrelled
with ])laintiti', his butlei' ; called on
his former master to inform him that
plaintiff had behaved in an imperti-
nent manner, and to desire him not to
give him another character ; being
applied to by H., who wrote to him
for a character, repeated the charges in
a letter in strong terms : left to tln^
jury to say, looking to all the cir-
cimistances, whether there was
malice.)

{p) Fattisonv. Jones {1S2S), 8 B.



188 THE LAW OF MASTPm AND SERVANT.

that they were uttered needlessly in the presence of third
parties {q), may substantiate the existence of malice, that is,
a design to injure the servant. No enumeration of the cir-
cumstances which may prove this, and constitute extrinsic or
intrinsic evidence of malice, is possible ; the question of
malice or houa fides, of proper or improper feeling, being
peculiarly one for a jur3^ It is their business to say
whether a master has made a letter about a servant a pre-
text for expressing private spite or conveying an ill-natured
and unjust insinuation, or has described faults in an exag-
gerated fashion, indicating a wish to harm the servant.

In modern times the courts have been disposed to give a
liberal application to the rule stated above, and they have
not confined privilege to cases in which communications are
made to a person about to engage a servant. This is
illustrated by Weatherston v. Haivkins {r). The defendant,
in answer to an application made to him by E,., to whom
the plaintiff was recommended, gave the plaintiff a bad
character. The brother-in-law of the plaintiff having re-
peatedly called on the defendant with reference to the subject,
the defendant sent him a letter containing specific charges of
fraud ; it was held that this was a privileged communication
as being incidental to the application for a character. This
species of privilege, it is said, extends even to the communica-
tion of facts Avhich were unknown to a master while a servant
was in his employment; "the privilege lasts as long as any thing-
is discovered before unknown to the master." It will cover
communications respecting the conduct of a servant after he

& C. 578 ; 3 M. & R. 101. (Master Linrrii v. Aikcnhcad, Folkanl'.s

wrote first letter about a servant's Starki<', p. '2.53, must be taken with

misconduct, without having heen ap- reservation.

])iie(lto, and wrote a second in an.swer {q) Taylor v. Hawkins (1851), It!

to inquiries : held that tliere was Q. li. 308 ; 20 L. J. (.). B. 313 ; 15

evidence of" malice.) IJaylev, -1., Jur. 746 ; Manbi/ v. JFitt (185(i),

pointed out that there might be 18 (.:. B. 544 ; 25 L. J. C. P. 294 ;

occasions on which eonimunications, 2 Jur. N. S. 1004 ; Tootjoad v. Sj>y/ -

though nn.solicited, would be privi- imj (1834), 1 (". ^I. .t I>. 181 ;" 3

legcd. See also Coltman, .1., in L. .1. Kx. 347.
Coxhcadv. Richards {\U^), 2 C. B. (r) (178(5), 1 T. K. 110.

p. 601. Lord Mansfield's ruling in



master's duty as to servant's f'HARAf.'TER, ] S9

has quitted a master's employment. When a master wrote
in answer to inquiries " nothing can be in justice said in her
favour," and that " she (defendant) has, since her dismissal,
been credibly informed she (plaintiff) has been and now is
a prostitute at Bury," it Avas held, in the absence of any
evidence of the falsehood of the statement, that the letter
was privileged (s).

A mutual insurance society for shipping may, in order to
pi'otect its interests, communicate to the owner of a vessel
that if he gives the command to a certain person whom they
believe guilty of drunkenness, tliey will decline to continue to
insure the vessel. If made in good faith and without malice
towards the plaintiff, such a communication will be
privileged (f).

The exact limits of the qualified privilege described in
Toogood V. Spyring {u) are hard to define. Such expressions
as "public and private duty," " matters where his interest is
concerned," "the discharge of some duty, public, private or
official, which the ordinary exigencies of society, his own
private interest, or even that of another called upon him to
perform," [x] arc ambiguous. It cannot be said that they are
yet clearly explained by the decisions. This much, however, is
certain — by duties are not to be understood merely legal
duties ; they include moral and social duties of imperfect obli-
gation ; the duties, for example, which neighbours owe to each

(s) Child V. Afflcxl (1829), 9 B. & {t) Hamon v. Fallc (1879), L. R. 4

C. 403 ; 4 M. & K. 3.38 ; Gardner v. Ap. C. 247.

Sladc (1849), 13 Q. B. 79G ; 18 L. J. («) See note (-?).

Q. B. 334 : 13 Jur. 826. Db-on v. (,r) Folkard's edition of Starkie on

Parsons (1858), 1 F. & F. 24. (Letter Slander, 250. See fnrtlu'V as to privi-

to a person who lias given a good lege in communications respecting

character to a servant which had aervnnts ; Johnson v. Uvans (ISOO), '-i

procured a situation with defendant, Esp. 32 ; Cockayne v. Hodgkinson

saying that the servant does (1833), 5 C. & P. 543 ; Rumseij v.

not deserve the character given ; Webb (1841), C. & j\I. 104 ; Coxhead

privileged.) Somervillc v. Havjkins v. Jiichards (IS46), 2 C. &. B. 569;

(1851), 10 C. B. 583 ; 20 L. J. C. P. Gilpin v. Fowler (1854), 9 Ex. 615 ;

131 ; 15 .Tur. 450. (Warning by Fryer v. Kinncrsley (1863), 33 L. J.

master to servants not to associate C. P. 96 ; 15 C. B. N. S. 422 ;

with a dismissed servant, and state- Condes v. Potts (1865), 34 L. .T. Q. B.

ment of cause of dismissal ; privi- 248.
leged. )



190 THE LAW OF MASTER AND SERVANT.

other, and wliich solicitors owe in vindication of the cliaracter
of their clients (y). An action Avill lie against a person who
makes a false and fraudulent statement with respect to the
character of a servant (s).

The uttering of a forged character or testimonial is an
offence at common law. Tims Avhen a person had forged and
uttered a document purporting to be a testimonial by a clergy-
man, and recommending him for the situation of a school-
master, he was properly convicted of a misdemeanour at com-
mon law («).

(i/) }T(trrL'iO)i v. Bush (ISo.")), 5 396.
E. & B. 344. {a) R. v. Sharman. (1854), Dears.

(z) IVilkiav. Rrid{lS5 i), 15 C. B. 285. See 32 Geo. III. c. 56, ami

192 ; Foster v. Charles (IS-iO), 6 Bing. Part II., Chapter III.



CHAPTER XIX.

MEASURE OF DAMAGES.

A SERVANT who is discharged improperly or without
due notice is entitled to recover such damages as a
jury thinks compensation for the actual loss which he
has sustained.

Sometimes the master and servant agree as to the terms
on which they shall be at liberty to terminate the contract.
If it be agreed that they may determine the engagement on a
month's notice, the servant can recover only a month's wages
in the event of his being improperly discharged (a). A
servant who is dismissed is bound to make reasonable exer-
tion and show dihgence in endeavouring to procure employ-
ment. It is deemed contrary to public policy that he sliould
remain idle. He must seek for employment and accept it if
it be offered. The true measure of damages is therefore not
the amount of Avages which he was promised under the agree-
ment, but his probable loss. This will be his wages less the
value of any place which he has obtained, or might have got by
reasonable exertions. Mr. Justice Willes, in Hartland v, Tlte
General Exchange Bank (h), told the jury that in estimating
the damages due to the plaintiff — the manager of a banking
company — who had been engaged for a term of three years,
and who had been dismissed at the end of four months,

(a) Uarilr.i/ V. ITarman (1840), 11 burn, J., in Sou-don v. Mills (1861),

A. k E. 798 ; see Gordon, v. Fotlcr 30 I.. J. Q. B. 176 ; Emmcns v.

(1859), 1 F. & F. 644. Eldcrton (1853), 13 C. B. 508 ;

[h) (1866), 14 L. T. N. S. 863; Speck v. Fhillips {1SZ9), 5 M. & W.

see also statement of law by Black- 283.



192 TIIK LAW OF MASTER AND SERVANT.

tlicy should take liis salary into account ; that they were not
to give him the whole of his salary for the three years ; but
that they were to take into account tlie probability of his
obtaining other employment. The rule was thus expressed
by Erie, J., in Beckham v. Drahe{c): "The measure of
damages for the breach of promise now in question is obtained
by considering what is the usual rate of wages for the employ-
ment here contracted for, and what time would be lost before
a similar employment could be obtained. The law considers
that employment in any ordinary branch of industry can be
obtained by a person competent for the place, and that the
usual rate of wages for such employment can be proved, and
that when a promise for continuing employment is broken by
the master, it is the duty of the servant to use diligence to find
other employment."

The damages awarded must not be too remote. A sea-
man who had left his ship at Rio because he refused to
take part in an illegal voyage, and who was committed to
prison by the Brazilian Government as a deserter, was held
entitled to recover loss of wages under his contract. But a
claim for a loss of clothes, which had been carried away in the
ship, was disallowed (<1). In another case the facts were
these : The plaintiff was engaged as manager of a mining-
company in South America for three years. The directors
were at liberty to dissolve the agreement at any time on
giving him twelve months' notice, or in lieu of svich notice
paying him twelve months' salary and his reasonable
expenses in returning to England. If he served three



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 21 of 77)