John Macdonell.

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

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Servants are bound to obey the la^vfiil orders of
their masters, and they may be dismissed without
notice for wilful disobedience of such orders (a).

The obedience wliicli is required is not limitless. A servant
is not bound to obey unlawful orders. Neither is be oblio-ed
to risk his safety (h). Servants may not be dismissed if they
refuse to perform services of a kind U'liich they did not
undertake to perform. A lady's maid cannot be expected to
milk cows(c), or a farm labourer to act as a domestic
servant (d). A seaman, who is engaged for one voycige, is
not bound to serve for another vo}'age, the risks of which
may be very different from those which he agreed to face.
This is iUustrated by Burton v. Plnherton (e), which has

(«.) As to the general principles not desertion within 7 & 8 Vict. c.

stated in the text, see Lord Abinger 112, s. 9, if a seaman quits a ship

in Prifsf,ley v. Fowirr (1837), 3 M. & in consequence of the cruel treat-

W. 1 ; Tamer y. Mason {lS^5), 2 J). ment by tlie master ; Ed/cards v.

& L. 898 ; 14 M. & AV. 112 ; 14 L. J. TrcceUick (1854), 4 E. & R. .59 : or

Ex. 311 ; Callo v. Brounckcr {\%Zl), because the provisions are insufiicient-

4 C. & P. 518. The Cast ilia {IS22), 1 Hag. 59.

{h) If a servant has been misled as (c) Bell's Principles, 77.

to the dangers of his employment, he (d) See Campbell's edition of

may throw up his engagement; Eraser's Master and Servant, 78, where

Cockburn, C. J., in JFoodlcij v. it is said : " Nor is a person hired to

Mctropolllan Disirid llif. Co. (1877), manage a farm bound to otficiate

L. R. 2 Ex. 1). at p. 388, and Lord as a servant of all work ; nor can

Abinger in P>-iM«c?/ V. i^'oK'Zc/- (1837), a gardener be forced to work in a

3 M. k W., at p. 6; Liiiiland v. turnip-lield ; nor a grieve and over-

Stcphens (1801), 3 Esp. 269. (If seer of a coalwork be compelled to

a master, by inhuman treatment, assist at the windlass-wheel, and

compels a sailor, for his safety, to click the coals at the pit ; nor a head

quit the ship, this will not be de- gamekeeper to act a« under game-

sertion, and will not cause a for- keeper."'

feiture of wages. Accordingly it (c) L. E. 2 Ex. 340 ; Ross v.


been already mentioned. The plaintiff had engaged to serve
for twelve months as a mariner from London to various ports
in North and Sontli America, and to obey all lawful com-
mands. War was declared between Spain and Peru, and
a proclamation enjoining neutrality was issued by the
English Government. Acting under the orders of the
Peruvian Government, the captain told the crew at Rio that
tbe next destination was Callao. The plaintiff" objected to
serve further, on the ground that the voyage was illegal, and
he left the ship. It was held that an action for breach of
contract lay against the owners, inasmuch as the vessel was
used for purposes which made the crew liable to more risks
than were incident to an ordinary commercial voyage. The
general rule, however, is, as Baron Parke stated in Turner v.
Mason {f),th'<xt"thQ obligation of a domestic servant is to
obey all lawful commands." It matters not how incon-
venient to the servant, or how harsh or cruel the orders
may be ; they may be even unreasonable ; provided they
be lawful and within the scope of his employment, he
must obey them on pain of dismissal. " The master is to
be the judge," as Baron Parke observes in the same
case, " of the circumstances under which the servant's
services are required, subject to this, that he is to give
only lawful commands." This principle was carried to
an extreme length in Turner v. Mason (/). A housemaid
having insisted, contrary to her master's orders, upon visiting
her sick and dying mother, was dismissed ; and the Court of
Exchequer was of opinion that, even if the master had liad

Pnuhr, 1 R. 4th .scries, 3o2. Mr. (1829), 9 P.. & V. 896.
AVooil, in his Law of Master aiulSer- (,/) (184r.), 14 iL & W. 112, 115 ;

vant, pj). 17.5 and 183, rontciids that, 2 D. k, L. 898; 14 L. J. Ex. 311.

in times of special or^'reatenicr^'cncy. Sec Spain v. Arnott (1817), 2 Sta.

a servant is not jiistilied in refusin*,' 2UQ ; Callo v. Broam-ker (1831),

to work beyond the measure of a 4 C. & P. 518; and two Scotcli

day's work as fixed by custom or cases, .similar to Turner v. Mason ;

contract. No antliority is a<lduccd Jfnmilton v. McLean, 9 Dec. 1824,

for tills view, and it does not .seem 3 I). & S. 379, 268 ; A. v. B. (1853),

capable of liein^ supported, unless so 16 D. 269.
far as is borne out by It. v. St. John


notice of the cause of her request to absent herself, wliicli
was not alleged, it would not have justified her in dis-
obeying her master's order. " There is not," said Baron
Parke, " any imperative obligation on a daughter to visit iicr
mother imdersuch circumstances, although it may be unkind
and uncharitable not to permit her."

In some cases appears a qualification of the doctrine just
stated (//). The correct rule in point of law, however,
seems to be that expressed by Baron Parke in Turner v.
Mason, that wilful disobedience to any lawful order is
a good cause of dismissal. At the same time, it is jirob-
able that the Courts would enquire whether there had
been substantial obedience, and whether the master had
provoked the servant by subjecting him to annoyance.
Dismissal for disobedience to lawful orders involves forfeiture
of wages (/i), and it would be a perversion of justice if a
master, who had done his utmost to irritate a servant to whom
wages were accruing, could take advantage of his own wrono-
and escape the obligation to pay anything by drivino- a
servant to an act of disobedience. According to Lord
Fraser {%), " Any angry word spoken under provocation, or a
disrespectful expression or action apologised for, will not be
held sufficient to sanction a dissolution of the contract.

((/) Cnssons v. Skinner {\d,iZ), 11 whole consiileration of the contract ;

M.' & W. 161, where it was hekl to e.g., in Gould v. IVchb (1S.55), 4 e!

he necessary to prove disohedience, & B. 933 (action for wrongful dis-

causing loss, turned on a point of charge ; defence that the engagement

jileading. was that the plaintiff, Eui-opean

(/() V. Arnott (1817), 2 Sta. correspondentof a newspaper, should,

256. by every steamer, forward to New

(i) Law of Master and Servant, p, York a letter containing European

405. In a case decided by Coleridge, news, and that defendant wrongfully

C.J., and IManisty, J., Michaelmas neglected so to forward; and also

Sittings, 1880, Shield v. Lcgge, the that defendant employed i)laiutilf

Court held that refusal to obey upon condition that he miglit draw

lawful order to fetch books did bills for the amount of his salary as

not warrant dismissal wlieu a it became due, but not for any sum

master, by his language and conduct, not due; but plaintiff wrono-fuUv

had provoked a (juarrel, and the ser- drew on defendant ; f)oth pleas held

vant had, in fact, obeyed shortly bad on demurrer. Tlie case mav 1-^

after it was over. Misconduct on the said to turn on pleading,
part of the servant may not go to the



Dictum aid faciiiin per irani ant fervorem non est ratum,
nisiquis in iifidem pevsistat " (/«•).

A servant is bound to be reasonably diligent and
faithful in liis service, and lie may be dismissed for
habitual neglect of his duties.

It is impossible to define the precise degree of fidelity
whicli is required ; it varies according to the nature of
the employment. It is not every failure in faithful service,
or every act of negligence which will warrant a master taking

{k) The followiug are some of the chief decisions relating to obedience : —

Good Ground fok Dismissal.

Sjmin V. Arnott (1817), 2 Sta. 256.
(Refusal by a farm servant to go
with his team to a place a mile off till
he had had dinner. ) Rcid v. Dans-
more (1840), 9 G. & P. 588. (A
journeyman painter sent by liis
master to work at a gentleman's
house, and ordered to keep the
walks : circumstance of his bein^c
found in one of the jireserves a good
ground for dismissal. Rcnno v.
'Ucnactt (1842), 3 Q. B. 7(;8. (Plain-
tiff, employed as a carpenter's mate
on a South Sea voyage, to be paid, on
the discliarge ami sale of the cargo, a
proportion of tlic nett profits ; when
the captain died, and the mate, a
foreigner, took command, plaintiff
refused to work tlie sliip exce]it to
an English port.) Turner v. Mason,.
Seen, [f], j). 206. Lilleij v. Elv;in
(1848), ilQ. B. 742. (Plaintiff, a wag-
goner, refused to work during harvest
until eiglit in the i\-cniiig, l)ecausc
strong beer, of good ipiality, not sup-
])lied him according to an alleged
custom, not established by evidence.)
Ohurchicaril v. Chambers (1860), 2
F. & F. 229. (Me-ssman of a regi-
ment refu.sod to .send up dinner.
The colonel having threatened to
put him under anest, he then served
the dinner, which had been delayed
half an hour : held that mess com-
mittee were entitled to dismiss him,
though next day he apologi.scd.)

Not Good Ground for Dismi.ssai,.
Callo V. Brouncker (1831), 4 G.

6 P. 518. (Defendant alleged that
her servant, a courier, stopped at a
particular hotel contrary to orders ;
appeared sulky when remonstrated
with, and neglected to come several
times when rung for. Park, J.,
in directing the jury, said that
"There was a contract for a year,
with an implied agreement that if
there was any moral misconduct,
either pecuniary or otherwise, wilful
disobedience or habitual neglect, the
defendant should be at liberty to
part with the plaintiff" ; but he
added, " no such conduct liad been
jiroved." Jacquot v. Bonrra (1839),

7 Dow. 348. (Action for wrongful
discharge of plaintifl' and his wife ;
plea tliat the plaintiff's wife obsti-
nately refused to work for the de-
fendant ; but on demurrer plea lield
bad, because not showing a dis-
oliedience of reasonable commands.
Prkc V. }foHatt (1861), 2 F. & F.
529 ; (1862), 11 G. B. N. S. .'508.
(Plaintiff, engaged as buyer ; refu.sed
to obey an order to card lace, was
dismis.sed : jury found that carding
lace was not within the duties of


tlic extreme step of dismissing his servant {I). It is the hahit
ot" neglecting a master's interests, which goes to the root of
the contract, and warrants him in putting an end to it. In
Fillieul V. Armstrong {m), which was an action for wrongful
dismissal brought by a French master, the defendant pleaded
that the plaintiff had absented himself for four days without
the defendant's consent. It was not shown that the de-
fendant had suffered any inconvenience in carrying on his
school ; and it was therefore held that he was not justified
in dissolving the contract. If a servant were frequently to
absent himself without leave and to sleep out at night, he
might be dismissed without notice (n). Even absence for a
day or a single hour might, in certain circumstances, show
such wanton disregard of his employer's interests as to excuse
dismissal. An actor who failed to be present at a first night,
a printer who quitted his work shortly before a newspaper
went to press, might no doubt be at once dismissed.

When a servant or workman receives materials to be
dealt with in the course of his business, he is a bailee coming
under the fifth of the six divisions described by Holt, C. J ,
in Co(j(js V. Bernard (o). His duty is " to use ordinary dili-
gence in the care and preservation of the property entrusted
to him." A watchmaker, for example, with whom a watch is
left is bound to use ordinary care in keeping it ( ji). So, where
the servant of a merchant was entrusted in the absence of
his master with his goods, and caused them to be landed
before the customs duties were paid, and the goods were con-
sequently forfeited to the Queen, it was held that an action

(I) It is sometimes alleged that tlie sion of this misconduct, and not at

command must be "reasonable," any time after, at the master's

Gibbon, Contracts on Work, p. 143 ; option;" Bramwell, B., in llorton

Wood, p. 223. But unless " reason- v. McMurtry (1860), 5 H. & K. 667,

able " means only lawful, and within 675 ; 29 L. J. Ex. 260.
the scope of the .servant's duties, tlie (m) (1837) 7 A. & E. 557.

qualification seems not justified. See {n) Robiiuson v. Hind man {lSOO)y

Jacquot V. Bourra, supra. " It is 3 Esp. 235.

not every failure in faithful service (o) (1703) Ld. Raym. 909; 1 Sm.

which will warrant a master in dis- L. C. 199 and 233.
charging his servant, and, if he does, (p) Clarke v. Earnsliaw (1818), 1

he must discharge him on the oeca- Gow. 30.


on the case lay against the servant (q). " A watchmaker,
having a watch left with him for repairs," sa3^s Story (r), " is
obliged to use ordinary diligence in keeping it ; and if he
omits it, and the watch is lost, he is liable for the value in
damages. So, a workman is bound, not only to guard the
thing bailed against ordinary hazards, but also to exert
liimself to preserve it from any unexpected danger to which
it may be exposed." The case generally cited in support of
this doctrine is Leek v. Maestaer (s). The proprietor of a dry
dock received a ship for the purpose of repairing it. The dock-
gates were burst by an unusually high tide, and the ship was
injured. Only one watchman was left to take care of the
shipping. Lord Ellenborough ruled that it was the duty of
the defendant to have had a sufficient number of men in the
dock to take measures of precaution when the danger was
approaching, and that he was answerable for the effects of the
deficiency (s).

A servant is bound to consult the interests of his
master, and may be dismissed for acts seriously in-
jurious thereto (t).

This is a vague description of a of cases resembling
some of those already described. No vciy precise account of
their nature can be given. All that can be done is to show
by a few illustrations the manner in which Courts have acted
with regard to this point. Disclosure of a master's trade or
business secrets, disclosure of family secrets (x), disclosure
of the accounts of a company to a person connected with
another company (y), advising and assisting an apprentice to

iq) Levisonv. Kirk (7 James I.), J. E.x. 80.
Lane, 65 ; Hussy v. Pcuy (1607), ] (j-) Host, C.J., in Bccston v.

Lev. 188 ; Walker v. The, JirUisU CuUi/rr {1827), 2 C. & P. 607.
Guarantee Association (1852), 18 (}. {y) East. Avqlian Jlji. Co. v. Lyth-

I> 277. 9^ (1851), 2 L. M. i: P. 221 ; also

(r) Bailment, sec. 429. Mercer v. IVhall (1845), 5 Q. B.

(j) (1807) 1 Camp. 138. 447.

(t) Ardin'j v. Lomax (1855), 24 L.



quit his master's service (z), entry by a clerk of a com-
pany on the margin of a minute-book of a protest against
a resohition of the directors to call a meeting to appoint his
successor (a), an acting manager at the Covent Garden
Theatre ridiculing and finding fault with his master's
arrangements and choice of plays so as to excite discontent
among the actors (/>), receiving money contrary to express
orders (c), — in all these instances masters have been
warranted in dismissing servants. Conduct on the part of
a servant wholly inconsistent with his position as such, and
showing an intention to assert another position than that
which he properly has, would be good ground for discharging
him. Thus, a claim to be a partner by a servant who
at certain periods received a portion of the profits of a
business, was held to excuse dismissal without notice {d ).
For the same reasons dismissal, in cases where a master has
been robbed by a servant (e), or where the latter has
been guilty of some act of dishonesty towards the master,
would be warranted. Such would be the case even if the

(*) Turner v. Robinson, sec note
(n). See as to soliciting business,
Nichol V. Mart i/n (1799), 2 Es)). 732.

(ft) Ridi/wai/ V. Hunqcrford Market
Co. (1835)', 3 A. & E. 171.

(6) Lacy v. Oshaldiston (1837), 8

0. & P. 80.

(c) Bray v.
C. B. 718.

(d) Anioi

Chamlkr (1856), 18

f'e«ron. (1839), 9 A. i:
E. 548 ; 1 P. & D. 398 ; 2 W. W. .<:
H. 81. Smithy. Thomji.son (IS ^9),
8 C. B. 44. (A servant ajipiopriated
to payment of his own salary, wliicli
■was due, £30, part of a sum remitted
to him by his master for business
purposes ; left to jury to say whether
plaintiff guilty of wrongful appro-
priation.) Horton v. McMnrtry
(1860), 5 H. & N. 667 ; 29 L. J. Ex.
260. (Plaintiff, manager of defend-
ant's factory, entered into a contract
Avith V. for supply of bladders, which
were necessary to defendant's busi-
ness ; the bladders were consigned to

G., who let ])laintiff have as many
as he wanted for defendant's business ;
it did not appear that plaintiff
ehavgi'd defendant any more than
he gave for them : good ground of
discharge.) £lcnkai-n v. Iludyrs'
IJistillcry Co. (1867), 16 L. T.
N. S. 608. (Traveller of a distillery
company l)ound to remit immedi-
ately all sums collected by him, sold
some of the company's wines to brothel
keeper, ami neglected to remit sums
immediately.) Niclwl v. Martyn
(1799), 2 Esp. 732. (A clerk or
servant at liberty to solicit from his
master's customers business to be
given him after he quits his master's
service ; not so in case of orders to be
n-iven him while in master's service. )
* (e) Lord EUenboroiigh in Trotman
V. Dunn (1815), 4 Camp. 211 ;
Cunningham v. Fonblanque (1833),
6 C. & P. 44, 49 ; l^potswood v.
Barrow (1850), 5 Ex. 110.


master sustained no loss (/), So, too, is desertion by a sea-
man — that is, abandoning a ship before the end of the
time for which he is engaged without just cause and without
the intention of returning. The question is always one of
fact. Has the servant so conducted liimsulf that it would
be manifestly injurious to the interests of the master to
retain him ((/).

A servant (domestic) may be dismissed for gross
acts of immorality.

Thus a female domestic servant who, while in the service
of her master, is delivered of a bastard child, may be dis-
missed (h). So if a man servant debauches a female servant,
both may be dismissed (/). A clerk who assaulted his
master's maid servant with intent to ravish her, was held to
be rightly dismissed (/,•). Habitual drunkenness, if it inter-
fered with the due discharge of a servant's duties, would
justify dismissal (I). The authorities are not clear as to
the limitations, if any, with which the above principle must
be taken. They lay it down as a general rule that gross
immorality on the part of a servant will be a good reason
for the master putting an end to the contract. But it is
submitted that the immorality must have direct reference to

(/) Brown v. Oroff (1828), 6 C. & 1 Hagg. Ail. 198. There ha.s

P. 16 (n.). been a considerable amount of dis-

{(/) VanKban, .1., in Larij v. Oshal- eussion in the Scotch cases as to

disfon, 8 C. & P. 80. when intoxication is a ground for

(A) A'. V. Brampton [lin), Cald. dismissal. Jlr. Wood .seems to indi-

11 ; Connors v. Juslic; (1862), 13 Ir. cate the true rule when he .says :

C. L. 451. "Ill all .such it is for tlie jury

(i) J\. V. U'clford (1778), Cald. to .say, in view of tlie jiositiim occu-

.57; but .see 7c'. V. TFe.itmron (\7Sl), pied liy the .servant and the jiartieulai'

Cald. 129. circumstances, wlietlicr his discharge

(k-) Alkin V. Acton (1830), 4 C. & is reasonable. A minister who should

P. 208. become into.xicated on any occasion

{D SlKckv. PhilUj)s{\m9),5^\. k wouLl, of, be subject to

W. 279, 281 ; 7/7.svv. //7/.w»(184.'>), instant dismi.s.sal, because incon.sist-

1 C. & K. 662 ; McKrllnr v. Macfnr- ent witli liis i)osition ; but a farm

liuir (1852), 15 D. 2nd Ser. 246 : labouicr or a clerk, when otf from

Kilv)ard-'s v. Marbi'- (1848), 11 D. duty, upon a holiday, would not ;"

2ud Ser, 67 ; Nnn rimnix (1823), p. 212.


tlie services to be performed, so as to render them worthless
or less valuable than was to be reasonably anticipated.

Acts bf inmiorality on the part of a governess, a secretary,
a menial servant, or other members of a household, during
the time they were employed, would naturally warrant a
master in discharging them ; such conduct unfits them for
their place.

But it is not to be supposed that a cotton manufacturer
would be at liberty to discharge one of his hands without
notice, or that a newspaper proprietor could dismiss a reporter
because these servants had been guilty of immorality which
had no relation to the duties which they were hired to per-
form {m). Even as regards servants who live in a master's
house, and are brought into close relationship with his family,
the misconduct which will justify dismissal must occur in the
course of their service ; they may not be dismissed for past
misconduct. This is illustrated by Fletcher v. Krell{n).
The plaintiff had engaged the defendant as governess for
three years. In an action for breach of contract the defendant
set up the plea that she had concealed the fact of her having
been divorced from her husband. This was held a bad plea
in the absence of any allegation of fraud.

A servant may be dismissed for gross insolence or
rudeness to his master.

In most of the cases in Avhich this point was considered,
there was insubordination or disobedience. But gross inso-
lence would also warrant dismissal. Each case must be con-
sidered by itself ; the social rank and position of the parties
and the habits and customary language of people in their

{in) "It would appear that im- p. .594.
proper conduct out of the uia.ster's {n) (187:3) 42 L. J. (,'. 15. oo ; '28

household is uot a ground of dis- L. T. N. S. 105. The plaintiff had

missal, unless, indeed, it can be described herself in the written ayree-

shown to be prejudicial to the master, nient as " spinster." The case turned

and liurtful to his feelings or on a point of pleading. li. v. U'cxt-

reputution." Fraser, ii. p. 413. And meun (1781), Cald. l^y ; Andrews v.

see Head v. Bunsriwre, 9 C. & P. at Garstein (1861), 31 I.. J. C. T. 15.


condition of life must be considered. It is useless to try to
give more precision to matter, which is peculiarly one of
degree, than it admits of. Wlien an action was brought by
a musical critic against a newspaper propi'ietor for wrongful
dismissal, and the latter pleaded that the former had been
liegligent and insolent, Hill, J., said "A single instance of
insolence on the part of a gentleman employed in such a
capacity would hardly justify dismissal " (o).

A servant is bound to possess reasonable skill in
performing the duties which he inidertakes, and gross
incompetence will justify dismissal.

" The public profession of an art," said Mr. Justice Willes
in Harnier v. Cornelius {li), " is a representation and under-
taking to all the world that the professor possesses the requisite
ability and skill." No express representation of fitness is
necessary. A warranty of this is implied in the fact that a
man holds himself out as a doctor, or an architect, or a painter,
or a ploughman. No doubt this would not hold good if the
employer had notice of the incompetence of his servant
before engaging him, or if he chose to employ him in work
for which he did not profess to be specially fitted ((/). It is
equally clear that there is no implied undertaking on the
part of a servant to use the highest possible skill. The
circumstance that some other workman would have done

(o) Eibamh v. Lcry (1860), 'J F. v. Prentice (1807), 8 East, 348 ;

k ¥. 94 ; Smith v. Allen (18t;-2), a Jenkins v. Bcllham (1855), 15 C. H.

F. kY. 157 ; Ilintib/yide v. Arthur, 168 ; Seurlc v. nidhn (1873), 28

CainiilieH's edition of Fniscr'-s MiLstor L. T. 411 (.servunt dismissed lor iii-

aiui .Servant, p. 71 ; iSclInf v. Jinlilri/, eoniiu'tence without notice : held not

(18()7), 5 S. L. J!. (i4. As to master's entitled to wajjes) ; Lee v. JValkcr

right to turn out a servant who makes (187'2), L. R. 7 C. P. 11\ ; Buhner

a noise and disturbs the peace of the v. Gilmrin (1842), 4 M. & G. 108 ;

family, Shaw v. Chairitic (1850), 3 I'othier, Lonage, 419 to 433; Story

C. &K. 21. oil IJailmeiits, s. 428.

(;;) (18.58) 5 C. I?. N. S. 236; (7) Willes, .1., m Harmtr \. Cw-

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 23 of 77)