« EelmineJätka »
become an offence to the Crown, being converted into a felony, and that drowns the particular offence and private wrong offered to the master before, and his action is thereby lost.” There are several objections to this explanation, which was a dictum not essential to the decision of the case. One of these is the fact that White v. Spettigue (yy), followed in this respect by Osborne v. Gillett (2), has decided that the rule as to a right of action being suspended in case of felony applies only between the person injured and the criminal; it does not affect a third party, such as the master. According to another explanation, “The master's right to his servant's services is instantly abrogated, and, in the eye of the law, no damage is sustained by him because no right” (a). This reason explains nothing. Does not a right of action accrue to the master between the moment when the injury was inflicted or the wrong done, and the moment when death took place ? And, if it does accrue, what becomes of it? Probably the rule originated in a mistake as to the meaning of the maxim Actio personalis moritur cum persona. The existence of the rule has been disputed by some American Courts (c). Whatever be its origin, it is in force. It was stated in Higgins v. Butcher, it was affirmed by Lord Ellenborough at nisi prius in Baker v. Bolton (!), decided in 1808. It has found its way into text books (e), and it was recognised by the Court of Exchequer (Bramwell, B., dissenting) in 1873 in Osborne v. Gillett.
When the injury to a servant is the result of a breach of contract to which the master is not a party, no action can be brought by him.
Thus, when a servant was hurt while on a railway journey,
(yy) (1845), 13 M. & W. 603. (z) (1873), L. R. 8 Ex. 88.
(a) Even in Osborne v. Gillett the Tule seems to have been misunderstood.
(c) Wood, 438.
(e) The whole subject is discussed in Ex parte Ball (1879), L. R. 10 Ch. D. 667, and in Mr. Justice Watkin Williams' learned judgment in Midland Insurance Co. v. Smith (1882), L. R. 6 Q. B. D. 651.
it was held that the master, not being privy to the contract, could not sue for loss of service (f). But where a servant had been injured by a collision caused by the negligence of another company than that with which the contract of carriage was made, the master recovered damages for loss of service (g).
(1) Alton y. Midland Ry. Co. (1865), 19 C. B. N. S. 213; 34 L. J. C. P. 292; 13 W. R. 918 ; 12 L. T. X. S. 703. This decision has been
much criticised. See Ames v. Union Ry. Co. (1875), 19 Am. Rep. 426.
(9) Berrington v. Great Eastern Ry. Co. (1879), 4 C. P. D. 163.
The following are the chief cases as to actions of seduction :-
NO ACTION. Bennett v. Allcott (1787), 2 T. R. Saterthwaite v. Duerst (1785), 5 166 (person seduced of full age); East, 47n ; Reddie v. Scoolt (1795), Edmondson v. Machell (1787), 2 Peake, 316 (plaintiff permitted T. R. 4; Fores v. Wilson (1791), man whom he knew to be Peake, 77 (servant not related to married to visit his daughter as her master); Mann V. Barrett suitor); Dean v. Peel (1804), 5 (1806), 6 Esp. 32 (plaintiff's East, 45 (plaintiff's daughter in daughter lived with her brother, service of another at time of sebut went every day to her duction, and did not intend to father's house to do all the house- return to plaintiff's house); Carr hold work); Speight v. Oliveira v. Clarke (1818), 2 Chit. 261 (no (1819), 2 Stark, 493; Manvell v. action when daughter not in Thompson (1826), 2 Ć. & P. 303 father's service, but he receives (plaintiff's niece entitled on com- part of her wages); Harris v.
age to £500; occasionally Butler (1837), 2 M. & W. 539 assisted in the household work); (plaintifi's daughter apprenticed Harper v. Luffkin (1827), 7 B. & C. to defendant's wife); Blaymire v. 387 (married woman living with Haley (1840), 6 M. & W. 55 (acher father and acting as servant); tion does not lie where daughter Maunder v. Venn (1829), M. & M. in domestic service of another, 323 (no proof of acts of service, but though she was there with the infather had right to daughter's ser- tention on her and her father's vices. Littledale, J.). Holloway v. part to return, on quitting her preAbell (1836), 7 C. & P.528 (A. occu- sent situation, to her father's house pied two farms seven miles apart ; if she got no other situation); A. resided at one, and his son and Grinnell v. Wells (1844), 7 M. & G. daughter at another ; the daughter 1033 (some proof of loss of service acted as mistress at the latter farm- necessary); Eager V. Grimwood
No ACTION. house; the daughter seduced ; ac- (1847), 1 Ex. 61 (some proof of loss tion lay. Littledale, J.); Griffiths of services necessary); Daries v. v. Teetgen (1854), 15 C. B. 344 Williams (1847), 10 Q. B. 725 (A. agreed with B. that B.'s (plaintiff's daughter when seduced daughter, who was then residing not in plaintiff's service) ; Thompwith him, should enter A.'s service son v. Ross (1858), 5 H. & N. 16; to assist him in business during 29 L. J. Ex. 1; 1 L. T. N. S. 43 the temporary absence of A.'s wife; (no action where daughter does action lay at suit of B. for seduc- not reside in house, though, with tion by A. during that period); permission of her master, she has Rist v. Faur (1863), 32 L. J. Q. B. been in the habit of assisting her 386 (plaintiff's daughter after day's mother in her business) ; Manley work as servant in husbandry per- v. Field (1859), 7 C. B. N. S. 96 formed services for her father); (plaintiff's daughter had a house Ogden v. Lancashire (1866), 15 W. of her own); Hedges v. Tagg, L. R. 158 (plaintiff's daughter lived R. 7 Ex. 283; 41 L. J. Ex. 169. with her father ; worked during See page 230. day at defendant's mill ; did wash- The action may be brought by ing and other domestic duties for master (Fores v. Wilson), brother, plaintiff); Terry v. Hutchinson, aunt, Edmondson v. Machell, 2 L. R. (1868), 3 Q. B. 599 ; 37 L. T. R. 4, or by a person who has J. Q. B. 257 (plaintiff's daughter adopted a friend's daughter, Irvin having left her situation v. Dearman, 11 East, 23. seduced on her way home to her father's house).
Long v. Keightley (1877), 11 Ir. C. L. 221. (Plaintift's daughter, twenty-four years of age, seduced in the house, and while in the service, of plaintiff, her mother.) In accordance with a previous arrangement, she left the day afterwards for America ; finding herself pregnant, she went to her sister's house, and resided there until after her confinement; subsequently she returned to the plaintiff's house. Evidence to go to jury of loss of service.)
DISSOLUTION OF THE CONTRACT OF HIRING AND SERVICE.
CONTRACTS of hiring and service are terminated by the death of the master or the servant.
The general rule is that executors or administrators are liable upon the contracts of the deceased, though they are not named (a). It is, however, an implied condition in contracts of service, requiring personal skill or taste, that they are terminated by death (b). “Where personal considerations,” says the Court in Farrow v. Wilson (6), “ are the foundation of the contract, as in cases of principal and agent, and master and servant, the death of either of the parties puts an end to the relation; and, in respect of service after death, the contract is dissolved, unless there be a stipulation, express or implied, to the contrary.” “ All contracts for personal service," said Pollock, C. B., in Hall v. Wright (c)—and the dictum is quoted with approval by Kelly, C. B., in Robinson v. Davison (d)—"which can be
(a) Parke, B., in Saboni v. Kirkman (1836), 1
M. & W. 423; Willes, J., in Farrow v. Wilson. See next note.
(b) (1869), L. R. 4 C. P. 744 ; 88 L. J. C. P. 326. (Farm bailiff engaged at weekly wages; service to be determinable by six months' notice, or payment of six months' wages. Administratrix not bound to continue the bailiff in her employment, or to pay him six months' wages
after the master's death.) Barker v. Parker (1786), 1 T. R. 287. But see Stubbs v. Holywell Ry. Co., L. R. 2 Ex. 311 ; 36 L. J. Ex. 166. Marriage does not operate as a dissolution of contract. Chitty's General Practice, vol. i. 770; Burn's Justice, 222.
(c) (1859), E. B. & E. 746, 793 ; 29 L. J. Q. B. 43.
(d) (1871), 6 L. R. Ex. 269 ; 40 L. J. Ex. 172 ; 24 L. T. 755 ; 19 W. R. 1836. See Blackburn, J., in
performed only during the lifetime of the party contracting, are subject to the implied condition that he shall be alive to perform them.” Hence a contract of apprenticeship (e) has been held to be determined by the death of one of the parties. No doubt such a contract may be drawn so as to prevent this taking place. In Cooper v. Simmonds (f), a lad was
a bound to a tradesman and “his executors” carrying on the same business in the same town. Notwithstanding the death of the master the apprentice was bound to serve his widow, the executrix, while she continued the same business.
The chief difficulty is with respect to the servants of partners. The death of a partner dissolves a partnership in the absence of an agreement to the contrary (9) ; and if the rule be, as is sometimes alleged, that the dissolution of partnership terminates all contracts of hiring and service (h), the death of one partner would bring this about. This view is supported by Tasker v. Shepherd (i). The plaintiff was employed as agent by a firm composed of two partners. The Court held that the death of one of them terminated the relation of agency. But this view was questioned by Martin, B., in Tasker v. Shepherd and in Hobson v. Cowley (k). There
Taylor v. Caldwell (1863), 3 B. & S. 826, 835; 32 L. J. Q. B. 164.
(e) Baxter v. Burfield (1747), 2 Stra. 1266 ; R. v. Chirk (1774), Bur. S. S. 782.
(f) (1862), 7 H. & N. 707 ; 30 L. J. Ex, 207.
(g) Pollock on Contracts, p. 64. (h) Wood, 308.
(i) (1861), 6 H. & N. 575 ; 30 L. J. Ex. 207; see also Rawlinson v. Moss (1861), 30 L. J. Ch. 797. (Dissolution of partnership of solicitors amounts to a discharge of client.)
(k) (1858), 27 L. J. Ex. 205, 208. (Plaintiff agreed with defendants, C. and M., to serve for seven years ; L. came into the firm in place of M. ; plaintiff signed a memorandum, which stated “that, in consideration that a new agreement is entered into with the new firm, he was willing to cancel the old agreement, evidence of
plea of exoneration, even if dissolution of partnership was a breach of contract.” Dobbin v. Foster (1844), 1 C. & K. 353. (A., B., and C. partners. D. engaged to serve them as foreman for twelve years ; C. quitted the business, and D. colitinued to serve A. and B. Plaintiff sued A., B., and C. on the original agreement : Coleman, J., ruled "C.'s going out of the concern did not per se put an end to the agreement. D. entitled to sue A., B., and C.") See also Hoey v. McEwan, 4 June, 1867 ; 5 Macph. 814; 39 Jur. 450. (Agree. ment between a firm and their clerk ; the clerk engaged for five years, at a salary of £300 a year, and percentage of profits ; the firm dissolved by death of one of the partners : held inter alia that the contract of service, being personal, was determined.) R. v. St. Martins