Master And Servant
servants contract service giving
MASTER AND SERVANT. These are scarcely to be considered as technical terms in law. The relationship which they imply is created when one man hires the labour of another for a term. Thus it is not constituted by merely contracting with another for the performance of a definite work, or by sending an article to an artificer to be repaired, or engaging a builder to construct a house. Nor would the employment of a man for one definite act of personal service - e.g., the engagement of a messenger for a single occasion - generally make the one master and the other servant. It was held, however, in relation to the offence of embezzlement, that a drover employed on one occasion to drive cattle home from market was a servant within the statute. (See article EMBEZZLEMENT for definition of " clerk " or " servant " in that connexion.) On the other hand, there are many decisions limiting the meaning of "servants" under wills giving legacies to the class of servants generally. Thus " a person who was not obliged to give his whole time to the master, but was yet in some sense a servant," was held not entitled to share in a legacy to the servants. These cases are, however, interpretations of wills where the intention obviously is to benefit domestic servants only. And so in other connexions questions may arise as to the exact nature of the relations between the parties - whether they are master and servant, or principal and agent, or landlord and tenant, or partners, &c.
The terms of the contract of service are for the most part such as the parties choose to make them, but in the absence of express stipulations terms will be implied by the law. Thus, "where no time is limited either expressly or by implication for the duration of a contract of hiring and service, the hiring is considered as a general hiring, and in point of law a hiring for a year." But "in the case of domestic and menial servants there is a well-known rule, founded solely on custom, that their contract of service may be determined at any time by giving a month's warning or paying a month's wages, but a domestic or other Yearly servant, wrongfully quitting his master's service, forfeits all claim to wages for that part of the current year during which he has served, and cannot claim the sum to which his wages would have amounted had he kept his contract, merely deducting therefrom one month's wages. Domestic servants have a right by custom to leave their situations at any time on payment of a calendar month's wages in advance, just as a master may discharge them in a similar manner" (Manley Smith's Law of Master and Servant, chaps. ii. and iii.). The master's right to chastise a servant for dereliction of duty (which appears to be still recognized in some American cases) is no longer sustained in English law, unless perhaps in the case of servants under age, to whom the master stands in loco parentis.
The following are assigned by Manley Smith as in general sufficient grounds for discharging a servant : - (1) wilful disobedience of any lawful order ; (2) gross moral misconduct; (3) habitual negligence ; (4) incompetence or permanent disability caused by illness.
A master has 9. right of action against any person who deprives him of the services of his servant, by enticing him away, harbouring or detaining him after notice, confining or disabling him, or by seducing his female servant. Indeed the ordinary and only available action for seduction in English law is in form a claim by a parent for the loss of his daughter's services.
The death of either master or servant in general puts an end to the contract. A servant wrongfully discharged may either treat the contract as rescinded and sue for services actually rendered, or he may bring a special action for damages for the breach. A master is bound to provide food (but apparently not medical attendance) for a servant living under his roof, and wilful breach of duty in that respect is a misdemeanour under 24 & 25 Viet. c. 100.
A servant has no right to demand "a character" from an employer, and if a character be given it will be deemed a privileged communication, so that the master will not be liable thereon to the servant unless it be false and malicious. A master by knowingly giving a false character of a servant to an intending employer may render himself liable - should the servant for example rob or injure his new master.
For penalties incurred by personating masters and giving false certificates of character, or by persons offering themselves as servants with false or forged certificates, see 32 Geo. III. c. 56.
Reference may be made to the article on LABOUR AND LABOUR LAWS for the cases in which special terms have been introduced into contracts of service by statute (e.g., Truck Act), and for the recent legislation on the subject generally, including the Employers' Liability Act, 1880.
The master's liability on the contracts of his servant depends on altogether different principles from those on which his liability for negligence has been justified. It is substantially a case of liability as principal for the acts of an agent. The main question in all cases is whether the alleged agent had authority to make a contract for his principal, and in the relation of master and servant there may be any variety of circumstances giving rise to that presumption. Here the rights of third persons have to be considered, and the master will be held liable to them wherever he has " by words, conduct, or demeanour held out Ids servant as a general agent, whether in all kinds of business or in transacting business of a particular kind," - even if the servant should act contrary to express orders. For example, a horse-dealer sending his servant to market with a horse to sell will be liable on the servant's warranty, although he Has been positively ordered not to warrant ; whereas an owner sending a stranger to sell would not be liable on a warranty given contrary to express directions.