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would be void. In all such cases the principle that there is no contribution between tort-feasors or wrong-doers applies.
Where, however, an act is not palpably illegal, and is done 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 principle that at law joint trespassers cannot sue inter se for contribution, must in fairness be limited to cases where the servant could know that he was doing wrong. 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 principal who employs another to do an act, apparently lawful, undertakes to indemnify him against all the consequences. “The rule that wrong.doers cannot have redress or contribution against each other," says Best, C. J. in the former case (g), “is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.”
No distinction between malum in se and malum prohibitum exists in this point of view. A servant can no
(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 indemni. fied 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
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.”
(F) (1831), 5 Bli. N. S. 154 ; 2 Dow & Clark, 288. Plaintiff, a sheriff,
a 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. Hoey (1871), 19 W. R. 916.
(g) p. 73.
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.
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. As to this point, in the Civil Law, nice distinctions are drawn (h). It is enough for our purpose to say that indemnity cannot be legally claimed for merely collateral losses (i).
In a subsequent chapter, in dealing with the duties of a master to his servant, it will be pointed out that the latter is entitled to indemnity for losses due to the want of skill or negligence on the part of the former.
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 (k).” The authorities for this statement are Smith v. Cuff (1), Atkinson v. Denby (m), and the class of cases, 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
(h) Pothier, Chap. III., sec. 2.
(k) Wood, Master and Servant, p.
(1) (1817), 6 M. & S. 160.
(m) (1862), 7 H. & N. 934 ; 8 Jur. N. S. 1012; 31 L. J. Ex. 362.
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 may claim indemnity for the consequences of obeying illegal orders through fear of losing his place.
MASTER'S DUTY TO PROVIDE SUSTENANCE.
It is the duty of a master to provide his (domestic)
a servants with wholesome and sufficient food and suitable lodging
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 (b). 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 permitted to deduct the charge from the servant's wages. The position of an apprentice is different; in sickness he is entitled 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 indicted for having refused and neglected to supply sufficient meat, drink, wearing apparel, bedding, &c. At a meeting of all the Judges, except Lord Kenyon and Mr. Justice Rooke, the opinion was expressed (Mr. Justice Chambre 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 sections 3, 4, 5, 8 and 9, was repealed by 24 & 25 Vict. c. 95. Under section 3 a register is to be kept of young persons under the age of sixteen hired or taken as servants from any workhouse. Under section 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) says
“ 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 misdemeanor, and being convicted
() (1802), Russ. & Ry. 22; Stephen's Digest of Criminal Law,
(g) (1811), 2 Camp. 650.