« EelmineJätka »
having once entered to his service, he cannot be removed to any place which may occasion him trouble or expense.” Campbell's edition of Fraser's Law of Master and Servant, pp. 83 and 352.
The above distinction between servants whose work has reference to a place, and those whose work has reference to a master's person, seems to be recognised in all systems of jurisprudence ; Savigny, Obligationenrecht, I. 49; Levi, Della Locazione ; Anderson v. Moon (1837), 16 S. 412.
It was decided in Coventry v. Woodhall, Hob. 134, that “generally no man can force his apprentice to go out of the kingdom, unless it be so expressly agreed, or that the nature of his apprenticehood doth import it, as if he be bound apprentice to a merchant adventurer or a sailor, or the like."
RIGHTS OF MASTERS AGAINST THIRD PERSONS.
MASTERS may recover damages against persons who wrongfully deprive them of the services of their servants.
The rights of masters and servants arise out of contract. It might therefore be supposed that they would consist merely of rights in personam and not of rights ad rem. This, however, is not entirely the case. The relation is, in some respects, status. The master's rights to the labour of his servants are regarded as rights ad rem ; they are somewhat of the nature of property (a).
Such a right of action as that which is above stated existed from early times. According to Bracton (b), the master might bring an action for insult and disgrace inflicted upon his servant, apparently though he had not lost service (c). Actual bodily injury was not necessary to sustain such an action; mere intimidation or menaces were enough, as appears by 40 Ed. III. and 20 Hen. VII.,
p. 5 (d).
The rule clearly recognised nowadays is, that the master may recover damages from persons who have wrongfully
injured his servants, provided a loss of service is thereby caused (e).
Thus actions have been brought by masters against persons for negligently driving over a servant (f), administering injurious drugs to him (), or for injuries from the bite of a dog (h). Common instances of such actions are those which are brought against persons who knowingly entice away or procure the departure of servants (i). To sustain such an action, it is not necessary to prove any binding contract of services (1); it will be enough for the plaintiff to show that he was actually receiving the benefit of certain services at the time at which the injury of which he complains was committed, and that the defendent was aware of this fact. In Lumley v. Gye (m), it was held that an action might be brought by one theatre manager against another for procuring a prima donna to break ber engagement to sing at the theatre of the former. In short, the action lies when the relation of master and servant does not in the strictest sense exist.
The Courts have extended the action for loss of service to the case of children who are injured, a child being constructively in the service of its parent. There must, however, be some foundation for the theory. A father will not
(e) Would an action lie for inducing 15 W. R. 1062 ; 17 L. T. N. S. 92 ; a master to discharge workmen? Lumley v. Gye (1853), 2 E. & B.
v Martinez v. Gerber (1841), 3 216 ; 22 L. J. Q. B. 463 ; 17 Jur. 827; M. & G. 88.
Bowen v. Hall (1881), L. R. 6 Q. B. (9) Bacon's Abridgment, Master 333. Trespass will lie for enticing and Servant, 0.
away a journeyman, Hart v. Eldridge (h) Hodsoll v. Stallebrass (1840), (1774), Cowp. 54, although only hired 11 A. & E. 301.
by the piece and not for any certain (i) The Scotch courts have held time. Trespass will not lie for that a master is entitled to damages inducing a servant to leave at the from one who induces a servant to expiration of the period for which reveal the secrets of his master's trade. he was engaged, although he had Fraser, 314. See as to the above no intention at the time of leaving, class of actions Hall v. Hollander Nichol v. Martin (1799), 2 Esp. (1825), 4 B. & C. 660; Lewis v. 734. As to evidence of enticing Fogg (1732), 2 Str. 944; Fores v. away, Keane v. Boycott (1795), 2 H. Wilson (1791), Peake, 78.
B. 512. (1) Evans v. Walton (1867), L. R. (m) See note (1). 2 C. P. 615; 36 L. J. C. P. 307 ;
be able to recover damages if his child be incapable by reason of youth, as in Hall v. Hollander (n), of rendering services.
This remedy has been used by a sort of fiction for the purpose of punishing seducers of women. The action is based upon loss of service, and is said to be maintainable only when the relation of master and servant exists (0). But in order to extend the remedy, the Courts have been inclined to find that relation, when in point of fact it does not exist. Proofs of trivial acts have been accepted as evidence of service. It is enough that there is a service at will. The fact that a daughter, as in Rist v. Faux (q), assisted in household work after coming home in the evening from the fields where she worked for hire, has been held sufficient. The length to which the Courts have gone is seen by Evans v. Walton (r), which was an action for enticing away the plaintiff's daughter. She resided with her father and assisted him in his business as a licensed victualler, but she was free to leave at any time. Having quitted home with her mother's consent, she was seduced. The Court thought that, as she had been induced to quit a continuing service, an action was maintainable.
On the other hand, no action will lie for enticing away an apprentice if there exist no valid contract of apprenticeship. In a case in which an indenture was void by reason of the 8th of Ann. c. 9, sec. 35 & 39, for not truly and fully setting forth the consideration or premium paid, the
(n) (1825), 4 B. & C. 660.
(0) Fores v. Wilson (1791), Peake N. P. 77; Thompson v. Ross (1859), 5 H. & N. 16.
(q) (1863), 4 B. & S. 409; but see Dean v. Peel (1804), 5 East, 45; and Hedges v. Tagg (1872), L. R. 7 Ex. 283 (plaintiff's daughter, a governess, seduced while on a three days' visit with her employer's permission at her mother's home ; she gave some assistance in household work during her visit ; at time of her
confinement she was in service of another employer, and afterwards returned home to her mother ; no action because no evidence of service at the time of seduction; and by Kelly, C. B., Martin, Bramwell, BB., because confinement did not take place while daughter in plaintiff's service). But see Long v. Keightley (1877), 11 Ir. C. L. 221, Joseph v. Corvander (1834), and Roscoe on Evidence, 13th ed. 878.
(r) See note (1).
Court of Common Pleas held that a count for enticing away could not be sustained (s).
An action will lie, not only against one who wrongfully seduces or entices away a servant, but against one who knowingly harbours or employs the servant of another (t). But there is an important distinction between the two kinds of action. The action for enticing away or seduction may be maintained, as has been stated, when no binding contract of service exists, when service ex gratia or de facto is suspended in consequence of the persuasion or procurement of the defendant. The action for harbouring or taking into service the servant of another will, for obvious reasons, not be sustainable unless there has been a binding contract ; the contract may be voidable, but it must not be void. Accordingly, when A. took into his service C., who had been working for B. under a contract void by reason of the Statute of Frauds, and refused to discharge C. after receiving notice from A., it was held that no action lay against A. (u). To sustain either an action for enticing away or harbouring, it is necessary that there should be notice of the existence of the contract of service (x).
If the injuries wrongfully inflicted upon a servant cause his immediate death, the master has no right of action.
The reason of this qualification is very obscure. It was quaintly said by Tarfield, J., in Higgins v. Butcher (y), “That the servant dying of the extremity of a battery, it is now
(8) Cor v. Muncey (1859), 6 C. B. N. S. 375.
(1) Blake v. Lanyon (1795), 6 T. R. 221; Ashcroft v. Bertles (1796), 6 T. R. 652.
(u) Sykes v. Dixon (1839), 9 A. & E.693; 1 W. W. & H. 120 ; Pilkington V. Scott (1846), 15 M. & W. 657.
(a) Faucet v. Beavres (1671), 2 Lev. 63; Fossct v. Breer (1671), 3 Keb. 59; Pores v. Wilson (1791), Peake, 77. (No notice necessary in case of action of seduction.)
(y) (1606), Yelv. 90. Notice does not seem to have been required wlien the Statute of Labourers was in force.