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notice of the cause of her request to absent herself, which was not alleged, it would not have justified her in disobeying her master's order. “There is not,” said Baron Parke, “ any imperative obligation on a daughter to visit her mother under such circumstances, although it may be unkind and uncharitable not to permit her."
In some cases appears a qualification of the doctrine just stated (9).
The correct rule in point of law, however, seems to be that expressed by Baron Parke in Turner v. M1801, that wilful disobedience to any lawful order is a good cause of dismissal.
At the same time, it is probable that the Courts would enquire whether there had been substantial obedience, and whether the master had provoked the servant by subjecting him to annoyance. Dismissal for disobedience to lawful orders involves forfeiture of wages (l), and it would be a perversion of justice if a master, who had done his utmost to irritate a servant to whom wages were accruing, could take advantage of his own wrong and escape the obligation to pay anything by driving a servant to an act of disobedience. According to Lord Fraser (i), “ Any angry word spoken under provocation, or a disrespectful expression or action apologised for, will not be held sufficient to sanction a dissolution of the contract.
(9) Cussons v. Skinner (1843), 11 M. & W. 161, where it was held to be necessary to prove disobedience, causing loss, turned on a point of pleading.
(h) Spain v. Arnott (1817), 2 Sta. 256.
(i) Law of Master and Servant, p. 405. In a case decided by Coleridge, C.J., and Manisty, J., Michaelmas Sittings, 1880, Shield v. Legge, the Conrt held that refusal to obey lawful order to fetch books did not warrant dismissal when master, by his language and conduct, haci provoked a quarrel, and the servant had, in fact, obeyed shortly after it was over. Misconduct on the part of the servant may not go to the
whole consideration of the contract ; e.g., in Gould, v. Webb (1855), 4 E. & B. 933 (actiou for wrongful discharge ; defence that the engagement was that the plaintiff, European correspondent of a newspaper, should, by every steamer, forward to New York a letter containing European news, and that defendant wrongfully neglected so to forward ; and also that defendant employed plaintiff upon condition that he might draw bills for the amount of his salary as it became due, but not for any sum not due ; but plaintiff wrongfully drew on defendant; both pleas held bad on demurrer. The case may be said to turn on pleading.
Dictum aut fuctum per iram aut fervorem non est ratum, nisi quis in iisdem persistat” (k).
A servant is bound to be reasonably diligent and faithful in his service, and he may be dismissed for habitual neglect of his duties.
It is impossible to define the precise degree of fidelity which is required; it varies according to the nature of the employment. It is not every failure in faithful service, or every act of negligence which will warrant a master taking
(k) The following are some of the chief decisions relating to obedience :GOOD GROUND FOR DISMISSAL. Not Good GROUND For DISMISSAL.
Spain v. Arnott (1817), 2 Sta. 256. Callo v. Brouncker (1831), 4 C. (Refusal by a farm servant to go & P. 518. (Defendant alleged that with his team to a place a mile off till her servant, a courier, stopped at a he had had dinner.) Reid v. Duns- particular hotel contrary to orders : more (1840), 9 C. & P. 588. (A appeared sulky when remonstratel journeyman painter sent by his with, and negiected to come several master to work at a gentleman's times when rung for. Park, J., house, and ordered to keep the in directing the jury, said that walks : circumstance of his being “There was a contract for a year, found in one of the preserves a good with an implied agreement that if ground for dismissal. Renno v. there was any moral misconduct, Bennett (1842), 3 Q. B. 768. (Plain. either pecuniary or otherwise, wilful tiff, employed as a carpenter's mate disobedience or habitual neglect, the on a South Sea voyage, to be paid, on defendant should be at liberty to the discharge and sale of the cargo, a part with the plaintiff”; but he proportion of the nett profits ; when added, “no such conduct had been the captain died, and the mate, a proved.” Jacquot v. Bourra (1839), foreigner, took command, plaintiff 7 Dow. 348. (Action for wrongful refused to work the ship except to discharge of plaintiff and his wife ; an English port.) Turner v. Mason. plea that the plaintiff's wife obstiSee n. (f), P. 206. Lilley v. Elvin nately refused to work for the de. (1848), 11Q. B. 742. (Plaintiff, a wag. fendant; but on demurrer plea held goner, refused to work during harvest bad, because not showing a disuntil eight in the evening, because obedience of reasonable commands. strong beer, of good quality, not sup- Price v. Jouatt (1861), 2 F. & F. plied him according to an alleged 529 ; (1862), 11 C. B. N. S. 508. custom, not established by evidence.) (Plaintiff, engaged as buyer : refused Churchward v. Chambers (1860), 2 to obey an order to card lace, was F. & F. 229. (Messman of a regi. dismissed : jury found that carding ment refused to send up dinner. lace was not within the duties of The colonel having threatened to buyer.) put him under arrest, he then served the dinner, which had been delayed half an hour : held that mess committee were entitled to dismiss him, though next day he apologised.)
the extreme step of dismissing his servant (). It is the habit of neglecting a master's interests, which goes to the root of the contract, and warrants him in putting an end to it. In Fillieul v. Armstrong (m), which was an action for wrongful dismissal brought by a French master, the defendant pleaded that the plaintiff had absented himself for four days without the defendant's consent. It was not shown that the defendant had suffered any inconvenience in carrying on his school ; and it was therefore beld that he was not justified in dissolving the contract. If a servant were frequently to absent himself without leave and to sleep out at night, he might be dismissed without notice (n). Even absence for a day or a single hour might, in certain circumstances, show such wanton disregard of his employer's interests as to excuse dismissal. An actor who failed to be present at a first night, a printer who quitted his work shortly before a newspaper went to press, might no doubt be at once dismissed.
When a servant or workman receives materials to be dealt with in the course of his business, he is a bailee coming under the fifth of the six divisions described by Holt, C. J., in Coggs v. Bernard (0). His duty is “to use ordinary diligence in the care and preservation of the property entrusted to him.” A watchmaker, for example, with whom a watch is left is bound to use ordinary care in keeping it (p). So, where the servant of a merchant was entrusted in the absence of this master with his goods, and caused them to be landed before the customs duties were paid, and the goods were consequently forfeited to the Queen, it was held that an action
sion of this misconduct, and not at any time after, at the master's option ;” Bramwell, B., in Uorton v. McMurtry (1860), 5 H. & N. 667, 675 ; 29 L. J. Ex. 260.
(mn) (1837) 7 A. & E. 557.
(n) Robinson v. Hindman (1800), 3 Esp. 235.
(0) (1703) Ld. Raym. 909; 1 Sm. L. C. 199 and 233.
(p) Clarke v. Earnshaw (1818), 1 Gow. 30.
on the case lay against the servant (9). "A watchmaker, having a watch left with him for repairs,” says Story (7), “ is obliged to use ordinary diligence in keeping it; and if he omits it, and the watch is lost, he is liable for the value in damages. So, a workman is bound, not only to guard the thing bailed against ordinary hazards, but also to exert himself to preserve it from any unexpected danger to which
be exposed.” The case generally cited in support of this doctrine is Leck v. Maestаer (8). The proprietor of a dry dock received a ship for the purpose of repairing it. The dockgates were burst by an unusually high tide, and the ship was injured. Only one watchman was left to take care of the shipping. Lord Ellenborough ruled that it was the duty of the defendant to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching, and that he was answerable for the effects of the deficiency (8)
A servant is bound to consult the interests of his master, and may be dismissed for acts seriously injurious thereto (t).
This is a vague description of a class of cases resembling some of those already described. No very precise account of their nature can be given. All that can be done is to show by a few illustrations the manner in which Courts have acted with regard to this point. Disclosure of a master's trade or business secrets, disclosure of family secrets (x), disclosure of the accounts of a company to a person connected with another company (y), advising and assisting an apprentice to
(9) Levison v. Kirk (7 James I.),
(r) Bailment, sec. 429.
J. Ex. 80.
(2) Best, C.J., in Beeston Collyer (1827), 2 C. & P. 607.
(y) East Anglian Ry. Co. v. Lyth. goe (1851), 2 L. M. & P. 221 ; also Mercer v. Whall (1845), 5 Q. B. 447.
quit his master's service (z), entry by a clerk of a company on the margin of a minute-book of a protest against a resolution of the directors to call a meeting to appoint his successor (a), an acting manager at the Covent Garden Theatre ridiculing and finding fault with his master's arrangements and choice of plays so as to excite discontent among the actors (6), receiving money contrary to express orders (c), - in all these instances masters have been warranted in dismissing servants. Conduct on the part of a servant wholly inconsistent with his position as such, and showing an intention to assert another position than that which he properly has, would be good ground for discharging him. Thus, a claim to be a partner by a servant who at certain periods received a portion of the profits of a business, was held to excuse dismissal without notice (d). For the same reasons dismissal, in cases where a master has been robbed by a servant (e), or where the latter has been guilty of some act of dishonesty towards the master, would be warranted. Such would be the case even if the
(3) Turner v. Robinson, see note (r). See as to soliciting business, Nichol v. Martin (1799), 2 Esp. 732.
(a) Ridgcay v. Hungerford Market Co. (1835), 3 A. & E. 171.
(6) Lacy v. Osvaldiston (1837), 8 C. & P. 80.
(c) Bray v. Chandler (1856), 18 C. B. 718.
(d) Amor v. Fearon (1839), 9 A. & E. 548 ; 1 P. & D. 398 ; 2 W. W. & H. 81. Smith v. Thompson (1849), 8 C. B. 44. (A servant appropriated to payment of his own salary, which was due, £30, part of a sum remitted to him by his master for business purposes ; left to jury to say whether plaintiff guilty of wrongful appropriation.) Horton McMurtry (1860), 5 H. & N. 667; 29 L. J. Ex. 260. (Plaintiff
, manager of defendant's factory, entered into a contract with C. for supply of bladders, which were necessary to defendant's business ; the bladders were consigned to
G., who let plaintiff have as many as he wanted for defendant's business; it did not appear that plaintiff charged defendant any more than he gave for them : good ground of discharge.) Blenkarn v. Hodges' Distillery Co. (1867), 16 L. T. N. S. 608. (Traveller of a distillery company bound to remit immedi. ately all sums collected by him, sold some of the company's wines to brothel keeper, and neglected to remit sums immediately.) Nichol v. Martyn (1799), 2 Esp. 732. (A clerk or servant at liberty to solicit from his master's customers business to be given him after he quits his master's service ; not so in case of orders to be given him while in master's service.)
(e) Lord Ellenborough in Trotman v. Dunn (1815), 4 Camp. 211; Cunningham v. Ponblanque (1833), 6 C. & P. 44, 49; Spotswood v. Barrow (1850), 5 Ex. 110.