Page images
PDF
EPUB

of the workman's average wages for the previous twelve months, or such less period during which he has been in the same employment, and in no case exceeding 1l. (y). (vi) In order to entitle the injured workman or (in case of death) his dependants, to receive the compensation, notice of the accident must be given as soon as practicable to the employer, and the compensation must be claimed within six months of the accident or (in case of death) within six months of the death ; the notice is to contain the name and address of the person injured, and the cause and date of the injury (2). (vii) The Act applies in spite of an agreement between employer and workman to the contrary, except where the Registrar of Friendly Societies has (by his certificate) sanctioned a scheme of compensation, as being not less favourable to the workmen of an employer and their dependants than the provisions of the Act. The registrar continues to have a superintendence over the working of any scheme so sanctioned by him, and may revoke his certificate upon due cause shown (a). (viii) In claims for compensation under the Act, as also in claims for damages independently of the Act, the intervention of a contractor or sub-contractor is not to relieve the employer (being an undertaker as defined by the Act) (), from liability to pay the injured workman. Such employer, however, has his remedy over against the intervening contractor, and the injured workman is given the option of proceeding either against the employer or against the intervening contractor, though he cannot obtain compensation from both (c). (ix) In case of the bankruptcy of the employer or (if the employer is a company) the winding up of the company, the workman has a first charge for the compensation due under the Act on any insurance moneys coming to the employer in respect of the accident or injury ; and the county court judge may give effect to such charge by ordering the insurance moneys to be paid into the Post Office Savings Bank, in the name of the registrar of the court (d).

(y) Sched. I., 1, 13.
(3) Sect. 2.
(a) Sect. 3.

(b) Undertakers as defined by the Act (s. 7) are:- in the case of a railway, the company ; in the case of a factory, quarry, or lanndry, the “occupier” thereof within the meaning of the Factory

and Workshop Acts, 1878 to 1895; in the case of a mine, the “owner” thereof within the meaning of the Mines Regulation Acts, 1887 and 1872 ; in the case of an engineering work or building, the persons undertaking the construction, alteration, repair, or demolition.

(c) Sect. 4.

If a servant be guilty of moral misconduct, or of wilful disobedience, or habitual neglect of his master's lawful commands, he may in any such case be dismissed without notice ; and no wages can in such a case be claimed save what have actually fallen due before the dismissal (€).

When a servant quits his place, the master is not under any legal obligation to give him or her a character (f); but if he gives a false character, imputing from malicious motives a fault which does not really exist, he is liable to an action at the suit of the party thus injured (g). No action will, however, lie upon a representation contained in a character or made in answer to the inquiries of an intending master, though false in fact, and injurious to the character of the servant (h), if it was made bona tide. Such a representation is held to be a privileged communication ; but the privilege is a qualified one, and will therefore be lost if actual malice is shown to exist.

A servant, duly discharging the duties of his service, is entitled to recover his wages, in preference or priority to the general creditors, in case of the death insolvent or of the bankruptcy of his master, or, where the employer is a company, in case of its winding up ('). (d) Sect. 5.

. (h) Child v. Affleck (1829), (e) Turner v. Robinson (1833), 9 Barn. & Cress. 403 ; Taylor v. 5 B. & Ad. 789; Lomax v. Hawkins (1851), 16 Q. B. 308 ; Arding (1854), 10 Ex. 734.

Somerrille v. Hawkins (1850), (f) Carrol v. Bird (1820), 3 Esp. 10 C. B. 583. 201.

(i) Preferential payments in (9) Fountain v. Boodle (1842), Bankruptcy Act, 1889 (51 & 3 Q. B. 5.

52 Vict. c. 62); Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10.

Under the Truck Acts, 1831 to 1896 (1), a workman's wages, except in the case of a servant in husbandry, must “Te paid to him in cash, and not in goods ; and the master's power of making deductions in respect of fines or otherwise is limited. The Shop Clubs Act, 1902 (k), proceeds on a similar principle in making it an offence for an employer to impose it as a condition of employment, that a workman should become a member of a shop-club or thrift fund, unless such club or fund is certified in accordance with the Act by the Registrar of Friendly Societies, and duly registered under the Friendly Societies Act, 1896.

[A master may maintain, that is, abet and assist, bis servant in bringing and prosecuting an action against a stranger ; that is to say, it is not “ maintenance,” if he do so (!). A master may also bring an action against any man for beating or maiming his servant, but in such a case, he must assign, as a special reason for so doing, his own damage by the loss of the service ; and this loss must (under the name of special damage) be proved at the trial (m). A master may also justify an assault in the defence of his servant, and a servant in the defence of his master (n); the master, because he has an interest in his servant, not to be deprived of his service, the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master. Also, if any person do cause or procure my servant to leave me, or do hire or retain my servant, being in my service, whereby the servant departs from me and goes to serve another, I may have an action for damages against both the new

[ocr errors][merged small]

[master and the servant, or either of them ; but if the new master did not know that he was my servant, no action lies against him, unless indeed he afterwards refuses to restore him upon information and demand] (n). The right of the employer to damages against any person who wilfully induces the employed to break his contract of employment, exists even in cases where the relation is not strictly that of master and servant (p). Thus, the master's right to maintain an action for loss of service has been put to the use of enabling a father to maintain an action for the seduction of a daughter, who has thereby become pregnant. The father has the right to the service of his daughter living with him, and the mere right to the service is sufficient to maintain an action of this kind, and proof of actual service is unnecessary (9) ; but the action will not lie at the suit of the father, when at the time of the seduction the daughter is actually in the service of some other person (r). The damages, in such a case, are not limited to the value of the service, which might be merely nominal ; but substantial damages may be given for the father's injured feelings (s).

[As a general rule, a master is answerable to strangers for any injury done or occasioned to them by the act or negligence of his servant, if done either by his express command or authority, or within the course of the servant's employment; the maxim being qui facit per alium, facit per se (t). In this respect, the law makes no distinction between ordinary servants and those who are more properly and usually termed agents, excepting that where the

[ocr errors][merged small]

[agents are independent contractors, the liability of these latter usually (u), but not invariably, operates to exempt the principal.] The rule is that a person causing a thing to be done, the doing of which casts on him a duty to take precautions, as for instance, where the doing of the thing involves danger to his neighbour or to the public, cannot escape from the responsibility of seeing the duty performed by delegating it to a contractor (x). [Accordingly, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it, though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. On the same principle, if a servant, by his negligence, do any damage to a stranger, the master shall answer for the neglect, e.g., if a smith's servant lame a horse while he is shoeing him, an action lies against the master (y) ; but in all these cases, the damage must be done in the course of the servant's employment, for otherwise the master is not Tiable (y).]

A master will be liable for the acts of his servant done in the erroneous or wrongful execution of a lawful authority, as, for instance, when the servant on his master's behalf arrests a supposed offender (3) ; and this is so, even where the master has forbidden the servant to do the particular act, provided the act was done in the course of his employment, and in the supposed interest of the master (a).

With regard to contracts and representations inducing

[ocr errors]

(y) Storey v. Ashton (1869), L. R. 4 Q. B. 476; Venables v. Smith (1877), 2 Q. B. D. 279 ; Stevens v. Woodward (1881), 6 Q. B. D. 319.

(z) Moore v. Metropolitan Rail. Co. (1872), L. R. 8 Q. B. 36.

(a) Limpus v. London General Omnibus Co. (1862), 1 H. & C. 526.

« EelmineJätka »