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master sustained no loss (f). So, too, is desertion by a seaman—that is, abandoning a ship before the end of the time for which he is engaged without just cause and without the intention of returning. The question is always one of fact. Has the servant so conducted himself that it would be manifestly injurious to the interests of the master to retain him (g).
A servant (domestic) may be dismissed for gross acts of immorality.
Thus a female domestic servant who, while in the service of her master, is delivered of a bastard child, may be dismissed (h). So if a man servant debauches a female servant, both may be dismissed (i). A clerk who assaulted his master's maid servant with intent to ravish her, was held to be rightly dismissed (k). Habitual drunkenness, if it interfered with the due discharge of a servant's duties, would justify dismissal (). The authorities are not clear as to the limitations, if any, with which the above principle must be taken. They lay it down as a general rule that gross immorality on the part of a servant will be a good reason for the master putting an end to the contract. But it is submitted that the immorality must have direct reference to
(f) Brown v. Croft (1828), 6 C. & P. 16 (n.).
(9) Vaughan, J., in Lacy v. Osbal. diston, 8 C. & P. 80.
(h) R. v. Brampton (1777), Cald. 11 ; Connors v. Justice (1862), 13 Ir. C. L. 451.
(i) R. v. Welford (1778), Cald. 57 ; but see R. v. Westmcon (1781), Cald. 129.
(k) Atkin v. Acton (1830), 4 C. & P. 208.
(1) Speck v. Phillips (1839), 5 M. & W. 279, 281 ; Wise v. Wilson (1845), 1 C. & K. 662 ; McKcllar v. Macfar. Inne (1852), 15 D. 2nd Ser. 246 ; Edwards v. Mackie (1848), 11 D. 2nd Ser. 67; New Phonic (1823),
1 Hagg. Ad. 198. There has been a considerable amount of discussion in the Scotch cases as to when intoxication is a ground for dismissal. Mr. Wood seems to indi. cate the true rule when he says : “In all such cases it is for the jury to say, in view of the position occupied by the servant and the particular circumstances, whether his discharge is reasonable. A minister who should become intoxicated on any occasion would, of course, be subject to instant dismissal, because inconsist. ent with his position ; but a farm labourer or a clerk, when off from duty, upon a holiday, would not ;"
the services to be performed, so as to render them worthless or less valuable than was to be reasonably anticipated.
Acts of immorality on the part of a governess, a secretary, a menial servant, or other members of a household, during the time they were employed, would naturally warrant a master in discharging them ; such conduct unfits them for their place.
But it is not to be supposed that a cotton manufacturer would be at liberty to discharge one of his hands without notice, or that a newspaper proprietor could dismiss a reporter because these servants had been guilty of immorality which had no relation to the duties which they were hired to perform (m). Even as regards servants who live in a master's house, and are brought into close relationship with his family, the misconduct which will justify dismissal must occur in the course of their service ; they may not be dismissed for past misconduct. This is illustrated by Fletcher v. Krell (n). The plaintiff had engaged the defendant as governess for three years. In an action for breach of contract the defendant set up the plea that she had concealed the fact of her having been divorced from her husband. This was held a bad plea in the absence of any allegation of fraud.
A servant may be dismissed for gross insolence or rudeness to his master.
In most of the cases in which this point was considered, there was insubordination or disobedience. But gross insolence would also warrant dismissal. Each case must be considered by itself; the social rank and position of the parties and the habits and customary language of people in their
(m) “It would appear that improper conduct out of the master's honsehold is not a ground of dismissal, unless, indeed, it can be shown to be prejudicial to the master, and hurtful to his feelings or reputation.” Fraser, ii. p. 413. And See Read v. Dunsmore, 9 C. & P. at
(n) (1873) 42 L. J. Q. B. 55; 28 L. T. N. S. 105. The plaintiff had described herself in the written agreement as “spinster.” The case turned on a point of pleading. R. v. Westmeon (1781), Cald. 129; Andreus v. Garstein (1861), 31 L. J. C. P. 15.
condition of life must be considered. It is useless to try to give more precision to matter, which is peculiarly one of degree, than it admits of. When an action was brought by a musical critic against a newspaper proprietor for wrongful dismissal, and the latter pleaded that the former had been negligent and insolent, Hill, J., said “A single instance of insolence on the part of a gentleman employed in such a capacity would hardly justify dismissal ” (o).
A servant is bound to possess reasonable skill in performing the duties which he undertakes, and gross incompetence will justify dismissal.
"The public profession of an art," said Mr. Justice Willes in Harmer v. Cornelius (p), “is a representation and undertaking to all the world that the professor possesses the requisite ability and skill.” No express representation of fitness is necessary. A warranty of this is implied in the fact that a man holds himself out as a doctor, or an architect, or a painter, or a ploughman. No doubt this would not hold good if the employer had notice of the incompetence of his servant before engaging him, or if he chose to employ him in work for which he did not profess to be specially fitted (9). It is equally clear that there is no implied undertaking on the part of a servant to use the highest possible skill. The circumstance that some other workman would have done
(0) Edwards v. Levy (1860), 2 F. & F. 94 ; Smith v. Allen (1862), 3 F. & F. 157 ; Handyside v. Arthur, Campbell's edition of Fraser's Master and Servant, p. 71 ; Selby v. Baldry, (1867), 5 S. L. R. 64. As to master's right to turn out a servant who makes a noise and disturbs the peace of the family, Shaw v. Chairitie (1850), 3 C. & K. 21.
(P) (1858) 5 C. B. N. S. 236 ; 28 L. J. C. P. 85. (A scene-painter dismissed for incompetenco.) Slater v. Baker (1767), 2 Wils. 359; Seare
v. Prentice (1807), 8 East, 348 ; Jenkins v. Beltham (1855), 15 C. B. 168 ; Searle v. Ridley (1873), 28 L. T. 411 (servant dismissed for incompetence without notice : held not entitled to wages); Lec v. Walker (1872), L. R. 7 C. P. 121 ; Bulmer v. Gilman (1842), 4 M. & G. 108; Pothier, Louage, 419 to 433; Story on Bailments, s. 428.
(9) Willes, J., in Harmer v. Cor. nelius (1858), 28 L. J. Q. B. 85; Shiells v. Blackburne (1789), 1 H. B. 158.
better what was undertaken is no proof that there was a want of care or skill warranting dismissal, or an action for negligence, or a deduction in remuneration (). The degree of diligence required will vary according to the delicacy and importance of the occupation (8).
A servant may be dismissed if from sickness or other cause he becomes for a considerable time or permanently unable to perform his duties. But if the servant be not dismissed, sickness will be no defence to an action for wages.
This principle, which is only a particular application of the former principle, was affirmed in Cuckson v. Stones (t). The plaintiff had agreed to serve the defendant as a brewer for ten years, at £2 108. a week. The plaintiff was taken ill in Christmas of 1857, and was unable to attend to his work until July of 1858. He then tendered his services, and was again employed about the brewery. In an action for wages for the thirteen weeks during which he had been absent, it was admitted that the contract had not been rescinded. The defendant set up the defence that the plaintiff was not ready or willing and able to render the agreed service. The plaintiff demurred; and the Court gave judgment for the defendant on the demurrer. But on a motion to set aside
(r) Tindal, C.J., in Lanphier v. Phipos (1838), 8 C. & P. 475, 479 ; Rich v. Pierpont (1862), 3 F. & F. 35.
(8) Dig. 19, 2; 13, 5; Story on Bailments, s. 432 ; Pothier, Louage, c. II. 8. 4, a. 1 ; see also Cockburn, C.J., Reasons for Dissent in regard to Alabama Award, Supplement to London Gazette, 1872, 4139; Hinshaw V. Adam (1870), 8 M. 933.
(1) (1858) 1 E. & E. 248 ; 28 L. J. Q. B. 25. Campbell, C.J., ob. Serves : “He (the servant) could not be considered incompetent by illness of a temporary nature."
See Blackburn, J., in Poussard v. Spiers,
(1876), L. R. 1 Q. B. D. 414. The law is thus stated by Mr. Bell in his Principles. Sickness, or inevitable accident, “will excuse non-performance for a short time ; but if the inability should continue long, and a substitute should be required, the master will be discharged from his counter obligation to pay wages,” zec. 177, 6th ed. Sickness or incapacity to serve on the part of an apprentice, however, apparently, does not discharge his master from the covenant to provide for and maintain him ; he takes the apprentice for better or worse. Addison on Contracts, 696, R. v. Hales Owen (1717), 1 Str. 99.
the verdict obtained by the plaintiff, the Court refused to enter judgment for the defendant. “Looking to the nature of the contract sued upon in this action,” said Campbell C.J., we think that want of ability to serve for a week would not of necessity be an answer to a claim for a week's wages, if in truth the plaintiff was ready and willing to serve had he been able to do so and was only prevented from serving during the week by the visitation of God, the contract to serve never having been determined.” "If the plaintiff," added Lord Campbell, “from unskilfulness, had been wholly incompetent to brew, or, by the visitation of God, he had become, from paralysis or any other bodily illness, permanently incompetent to act in the capacity of brewer for the defendant, we think that the defendant might have determined the contract.
The contract being in force, we think that here there was no suspension of the weekly payments by reason of the plaintiff's illness and inability to work."
While permanent inability or incompetence owing to sickness would, as the above case shows, warrant dismissal, it would be a good defence in an action for non-performance of service. This was decided in Boast v. Firth (u), which was an action by a master for breach of an apprenticeship deed. The defendant, the father of the apprentice, pleaded that his son was prevented by the act of God, to wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff. This was considered a good plea, it being in the contemplation of parties to all contracts for personal services that the parties to them should be in a position to perform them.
The right of a servant to wages during temporary sickness is not quite clear. Some writers have drawn a distinction between illness caused by the servant's own fault and that for which he is not to blame (@). But the authorities, on the
(u) (1868) L. R. 4. C. P. 1; Taylor v. Caldwell (1863), 3 B. & S. 826, 839 ; Appleby v. Meycrs (1866 & 1867), L. R. 1 c. P. 615; L. R. 2 C. P. 651, reversing decision of
Court of Common Pleas; 35 L. J.
ser on Master and Servant, p. 140.