honestly, in discharge of the directions of the master; where a servant does not know, and has no reasonable ground for believing, that that which he did was wrongful; where he had a right to suppose that the orders which he obeyed were lawfully given, the servant will be entitled to indemnity, even though his acts have injured others. His duty is, in general, to obey; it would be wholly unreasonable to deprive him of indemnity, where the orders are not on the face of them unlawful. The older authorities may not support this view, but many decisions, such as Adamson v. Jarvis (e), and Humphrys v. Pratt (f), show that a person who requests another to do an act not manifestly unlawful or tortious to the knowledge of that other (g), undertakes to indemnify him against all the consequences. This principle is not limited to the relations of principal and agent or master and servant (g). rule that wrong-doers cannot have redress or contribution against each other," says Best, C. J., in Adamson v. Jarvis (h), “is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." "The No distinction between malum in se and malum prohibitum exists in this point of view. A servant can no more recover indemnity for contravening a statute than committing a crime at Common Law; it is clear that a servant could not recover expenses incurred in smuggling goods in pursuance of the orders of his master, any more than he could recover the expenses of carrying out a conspiracy to effect a felony. It has been said that “ as to servants doing an act in obedience to the master's orders, knowing the act to be unlawful, the rule as to parties in pari delicto does not apply with that strictness that is given to it in cases where the party is not in any measure subject to the control of the other" (i). The authorities for this statement are Smith v. Cuff (k), Atkinson v. Denby (1), and the class of cases (e) (1827), 4 Bing. 66 Plaintiff, an auctioneer, sold cattle which were not the property of the defendant, in whose possession they were, and who employed him; owner recovered judgment against the plaintiff for selling the cattle; held, that the plaintiff was entitled to be indemnified by the defendant. Best, C. J. stated the rule thus: "Every man who employs another to do an act which the employer appears to have a right to authorise him to do, undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have." M. (f) (1831), 5 Bli. N. S. 154. Plaintiff, a sheriff, seized cattle under a fi. fa. given by defendant; owner recovered damages against plaintiff held, the plaintiff was entitled to indemnity from the defendant. See Power v. Нову (1871), 19 W. R. 916. (g) Dugdale v. Lovering (1875), L. R. 10 C. P. 1963; following Betts v. Gibbins (1834), 2 A. & E. 57, and Toplis v. Grane (1839), 5 Bing. N. C. 636. in which embarrassed debtors, who have paid sums of money to particular creditors, in order to procure their assent to compositions, have been allowed to recover what they have so paid. Particular expressions used by Ellenborough, C. J., and Cockburn, C. J., in these cases, are wide enough to warrant the statement which we have quoted. When servants execute illegal orders through fear of dismissal, there is, to quote the language of the former, "Oppression on the one side, and obedience on the other." No decision, however, has gone so far as to say that a servant is entitled to be indemnified for the consequences of obeying manifestly illegal orders through fear of losing his place. No right to indemnity will exist in respect of losses or expenses caused by the servant's failure to comply with orders or by reason of his exceeding them. A servant can, of course, claim indemnity only for the losses which are directly due to the execution of his employer's orders. The general principle of the Civil Law was that the person who had bonâ fide incurred expenses or liability in carrying out the order of his employer, was entitled to indemnity: "Impendia mandati exequendi gratiâ facta, si bonâ fide facta sunt, restitui omnimodo debent. Nec ad rem pertinet quod is qui mandâsset potuisset minus impendere" (m). But, to be recoverable, the expenses must not be accidental, but a consequence of the mandate : "Non omnia quæ impensurus non fuit mandatori imputabit, veluti quod spoliatus sit a latronibus, aut naufragio res amiserit, vel languore suo suorumque adprehensus quædam erogaverit: nam hæc magis casibus quam mandato imputari oportet" (n). Probably English law is the same. (m) Dig. lib. xvii. tit. 1, sect. 27, 4. (n) Dig. lib. xvii. tit. 1, sect. 26, 6. CHAPTER XII. MASTER'S DUTY TO PROVIDE SUSTENANCE. It is the duty of a master to provide his (domestic) servants with wholesome and sufficient food and suitable lodging; and failure to do so is a good ground for departure. We read in Fitzherbert that the "keeping from the servant meat or drink is a good cause for his departure from his service" (a). At Common Law a master is not bound to furnish medical aid or medicine to his servant (6). He is not even liable upon an implied contract or otherwise if a doctor or surgeon be called in to attend a servant who is injured in the course of his employment. But slight evidence of assent-for example, interference on the part of the master, or the fact that he called in his own doctor-will suffice to fix him with liability (c), and he will not be entitled to deduct the charge from the servant's wages. The position of an apprentice is different; in sickness he is entitled, at all events if he reside with his master, to proper medical attendance and medicine (d). Failure or neglect to provide nourishment to a servant or apprentice was in certain cases at Common Law an indictable offence. Thus in R. v. Gould (e), a master to whom a poor boy was put out as apprentice was indicted for refusing to provide for him. In R. v. Friend (f), a girl of thirteen or fourteen had been apprenticed to the prisoner. He and his wife were (a) 168 E. Apparently a servant, if maltreated, can leave the service and sue for damages; see Erskine by Rankine (18th ed.), 302. (b) Newby v. Wiltshire (1785), 4 Doug. 284; Atkins v. Banwell (1802), 2 East, 505; Wennall v. Adney (1802), 3 B. & P. 247. (Plaintiff's arm broken while driving defendant's team.) Scarman v. Castell (1795), 1 Esp. 270, is overruled. In Scotland it would seem that a master may compel a male domestic servant to reside out of his house on paying board wages; not so a female domestic servant. Graham v. Thomson (1822), 1 S. 287. (c) Cooper v. Phillips (1831), 4 C. & P. 581; Sellen v. Norman (1829), 4 C. & P. 80. (d) R. v. Smith (1837), 8C. & P. 153. A master was held bound, under a covenant in the indentures, to find "meat, drink, lodging and all other necessaries," to provide his apprentice with clothes and washing gratis: Abbott v. Bates (1875), 33 L. T. (N. S.) 491. Sce Austin on Apprentices, 77-79. As to duty to maintain apprentice during sickness or incapacity, see p. 181, n. (i), infra. (e) (3 Anne), 1 Salk. 381. (f) (1802), Russ. & Ry. 22; Stephen's Digest of Criminal Law (5th ed.), 220, indicted for having refused and neglected to supply sufficient meat, drink, wearing apparel, bedding, &c. At a meeting of all the judges, except Kenyon, C. J., and Rooke, J., the opinion was expressed (Chambre, J. dissenting) that it was an indictable offence, as a misdemeanour, to refuse or neglect to provide sufficient food, bedding, &c., to any infant of tender years, unable to provide 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. Ridley (g), Mr. Justice Lawrence confined the liability to the case of children of tender years and under the dominion of the defendant. The defects of the law having been revealed in the case of the Sloanes in 1851, the 14 & 15 Vict. c. 11 was passed. The whole of this Act, with the exception of sects. 3, 4, 5, 8 and 9, was repealed by 24 & 25 Vict. c. 95. Under sect. 3 a register is to be kept of young persons under the age of sixteen hired or taken as servants from any workhouse. Under sect. 4 such young persons hired from workhouses or bound out as pauper apprentices are to be visited periodically by the relieving officer. The 24 & 25 Vict. c. 100, s. 26 (Offences Against the Person Act, 1861), provides : Whosoever, being legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour. Sect. 6 of the Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), makes it an offence punishable on summary conviction wilfully and without lawful excuse to refuse or neglect to provide, when one is legally liable to do so, a servant or apprentice with necessary food, clothing, medical aid, or lodging (h). (g) (1811), 2 Camp. 650. (h) See also 4 Edw. VII. c. 15 (Prevention of Cruelty to Children Act, 1904). As to duties of owner to pro vide food, medicine, &c. to seamen, see 57 & 58 Vict. c. 60, ss. 198-210; and as to sailor suing owners for not supplying medicine, Couch v. Steel (1854), 3 E. & Β. 402. CHAPTER XIII. MASTER'S DUTY TO TEACH APPRENTICE. It is the duty of a master to teach, or cause to be taught, his apprentice the trade or profession to which he has been apprenticed. This follows from the very nature of apprenticeship. It is, in fact, stipulated for in every indenture of apprenticeship, the usual covenant being "to take and receive the said apprentice as his apprentice during the said term; and to the best of his power, knowledge, and ability, teach or instruct, or cause to be taught or instructed," &c., &c. No technical meaning is given to "teaching": it may mean merely allowing the apprentice "the run of the office" or "shop" (a). 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 (b). 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 (c). 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 (d). (a) Cridland v. Marler and Bennett (1893), 9 Times L. R. 529. (b) Couchman v. Sillar (1870), 22 L. T. (N. S.) 480. (c) Ellen v. Topp (1851), 6 Ex. 424; Batty v. Monks (1864), 12 L. T. (N. S.) 832. (d) James Carsewell, 7th July (1794), unreported; cited in n. (h) at p. 604 of Fraser's Law of Personal and Domestic Relations (ed. 1846). See Campbell's edition of Fraser's Master and Servant, p. 360, where reference is made to a curious case, Gardner v. Smith, in which an apprentice pleaded that his master had given up, in a great measure, his business as a joiner, and become a smuggler, and that he seldom attended the shop, and took no care to instruct the apprentice. The relevancy of this defence was not denied, but the Court thought it "not proved that the apprentice was deprived of daily instruction by reason of the casual absence of the master." |