Amor v. Clerk claim- Cussons Y. think that you ought to consider what Mr. T. had a right to expect from the defendant and his men. If a gentleman engages a tradesman, who has several workmen under him, he has a right to expect that the workmen will conduct themselves well." "It is said they did no damage; but I do not think that it entirely depends on that, because it might have been that Mr. T. might have said I will not allow the workmen to go into my garden, and if they had done so, they would have done no actual damage; but still if the defendant employed persons who acted in that way he would soon find that he was injured in his business, and would lose his custom because gentlemen would not engage him." So a wine-merchant (m) was held justified in dismissing a clerk at a yearly salary, who also, at certain periods, received a portion of the profits, (but this, as the master alleged, was a mere gratuity), for claiming to be a partner, as he thereby disclaimed being a servant. And it was said by Lord Abinger (n), that the acceptManager of ing of an undrawn bill of exchange, in blank, by the manager of a cotton company, was wrong, and would have been a very justifiable cause of discharging him bill in blank. the next day after it was discovered (0). company accepting Filleul v. Armstrong master not French returning for two days after vacation. But it has been held (p), that a schoolmaster was not justified in discharging the plaintiff, a teacher of French and drawing, for not returning to the school for two days after the vacation, as it did not appear that the plaintiff had been guilty of any immorality, nor that the defendant was obliged to hire another person, or that the plaintiff's department was not, in fact, adequately filled, nor that the instructions in French or drawing were im (m) Amor v. Feuron, 9 A. & E. 548; and see Mercer v. Whall, 5 Q. B. 447, where to an action of covenant by an articled clerk against a solicitor for dismissing him, the defendant pleaded that the plaintiff conspired to induce the defendant's clients to leave him, and disclosed his professional secrets. (n) Cussons v. Skinner, 11 M. & W. 170. The decision in that case, however, did not turn on this point. (0) And see The East Anglian Railway Company v. Lythgoe, 2 L. M. & P. 221, where a clerk to a railway company was dismissed for disclosing the accounts of the railway to another company, but under the circumstances of the case the County Court Judge thought him entitled to his salary up to his discharge. (p) Filleul v. Armstrong, 7 A. & E. 557. peded, or that the business of the school was suspended for a single hour. Wilson. making cines. And where (o) a surgeon, by a written agreement not Wise v. under seal, agreed with the plaintiff, in consideration of Surgeon's a premium of 50%., to take her son, a young man seven- assistant teen years old, as pupil and assistant for three years, to getting assist him in his studies, to allow him to attend lectures, drunk, and and to provide him with board and lodging; but dis- shop-boy missed him in consequence of his coming home drunk mix mediabout five times, and on some occasions when he came home late desiring the shop-boy to make up the medicines; Lord Denman, in summing up to the jury, said: "There is a great distinction between a contract of apprenticeship and a contract with a servant. A person has a right to dismiss a servant for misconduct, but has no right to turn away an apprentice because he misbehaves. This is a mixed case, something between that of apprenticeship and service. The plaintiff's son goes to the defendant to render assistance to him in his business, although he is also to pursue his studies; and as a justification of his dismissal the defendant has pleaded, not that the plaintiff's son did not perform all things on his part to be performed, but that he did things injurious to the defendant's practice, and so misconducted himself as to be dangerous to the defendant's practice as a surgeon. It is proved, beyond all doubt, that on some occasions the plaintiff's son came to the defendant's house intoxicated; but I think that that alone would not justify the defendant in dismissing him. It is also proved that, on several occasions, in consequence of the plaintiff's son coming home late, he could not compound the medicines, and employed the shop-boy to do it. Now I think this affords matter for serious consideration; and if you think that from this conduct of the plaintiffTMs son real danger was occasioned to his master's business, you ought to find your verdict for the defendant, as the defendant was then, in my opinion, justified in dismissing him." But the plaintiff had a verdict. And where (p) the plaintiff was engaged as clerk to smith v. the defendant, under a contract of hiring for two years, Thompson. to conduct the business of a shipping agent at South- Clerk to ampton, and in the course of his employ it was his duty agent applyto pay freight, dock dues, &c., to meet which the defend (0) Wise v. Wilson, 1 Carr. & K. 662. (p) Smith v. Thompson, 8 C. B. 44. shipping ing money given for "business his own salary. ant remitted money: on one occasion the plaintiff wrote to the defendant for 1401., enclosing an account of the purposes" to purposes for which it was required, one of them being the payment of 30l. salary due to himself: ten days afterwards, the defendant sent the plaintiff 1007., in a letter directing him to apply the money for "business purposes," and he applied 30l. in payment of his own salary; whereupon the defendant discharged him, and the plaintiff brought his action for wrongful discharge: at the trial, the Judge left it to the jury to say whether the plaintiff had been guilty of any wrongful and improper appropriation of the money, or of disobedience of orders and it was held by the Court of Common Pleas to have been properly so left, and that the Judge was not bound to tell the jury that it was not necessary to justify the dismissal of the plaintiff that he should have been guilty of any moral turpitude. If good ground of discharge exist, and is known to the master, it is suffi charge, Where an act of wilful disobedience of a lawful order, or other misconduct on the part of a servant which would justify his master in discharging him, is known to the master at the time he discharges him; although he does not insist on that as the precise ground of discharge, cient to jus- or even if he alleges some other ground of discharge; yet tify the dis- the master may afterwards, by shewing that the fact existed and that he knew it, justify such discharge on that ground (q). But it would seem that if the master, at the time he discharged the servant, did not know of any act of misconduct on the part of the servant which Aliter, if not would justify his discharge, although such fact existed, the mere existence of the fact would not justify the discharge (r). although different ground alleged. known to exist. Spotswood v. Burrow. In a case, however, in which a traveller and salesman brought an action for wrongful dismissal, and the defendant pleaded in justification that the plaintiff had received money from the defendant's customers and embezzled it, wherefore he discharged him; to which the plaintiff replied de injuriâ; and it appeared in evidence that the defendant did not know of the embezzlement when he discharged the plaintiff: It was held, that on these pleadings, the Judge who tried the case was (q) Baillie v. Kell, 4 Bing. N. C. 638; Ridgway v. Hungerford Market Company, 3 A. & E. 171; Cussons v. Skinner, 11 M. & W. 161; Mercer v. Whall, 5 Q. B. 447. (r) Cussons v. Skinner, ubi supra. wrong in leaving it to the jury to say whether the de- Secondly. As between the Master and Third action of servant. A master may maintain an action against any person Remedies of who deprives him of the services of his servant, either master by by enticing him away from his master (t); or by har- against bouring and detaining him after having been apprised third persons for deof the former contract (u); or by beating, confining, or priving him disabling him; or by seducing a female servant (v). of services The master may also, where wages have been earned by a servant enticed away or harboured by another person, waive his right of action for such tortious act, and sue for the earnings of his servant. In all these cases the master's right of action arises out of the property which he has acquired by the contract of hiring, in the labour of his servant; and in all of them, except the action for his servant's earnings, the gist of the action is the loss of Loss of service, without an allegation of which no action can be service gist sustained by a master, however great the injury to his actions. servant (w). Whilst, therefore, on the one hand, a mere attempt to deprive a master of the services of his servant, without any damage following upon it, would not give the master a right of action (x); so, on the other, a master, who has recovered, in an action against the servant, a stipulated penalty for leaving his service, cannot maintain an action against the person who induced him to leave (y). Moreover, the loss of service must And must (8) Spotswood v. Barrow, 5 Exc. 110. (t) F. N. B. 91, I., 167, B. (u) F. N. B. 168; Winch, 51. (v) Com. Dig., tit. “Trespass," B. 5; tit. " Pleader," 3 M. 11. (w) Robert Mary's case, 9 Rep. 113a; Poley v. Osborn, cited 10 Rep. 130 b; Hanbury v. Ireland, Cro. Jac. 618; Chamberlaine v. Harvey, 5 Mod. 182; S. C. 1 Ld. Raym. 146; Hall v. Hol lander, 4 B. & C. 660; (x) Per Lord Mansfield in (y) Bird v. Randal, ubi supra. of such be the ne sequence of act. be the natural and necessary consequence of the defendcessary con- ant's act, otherwise the master cannot maintain any defeudan's action. Where, therefore, the plaintiff, who was director of certain oratorios had, at considerable expense, engaged M., who, in consequence of a libel published by the defendant, refused to sing, being afraid of being hissed; Lord Kenyon held, that the plaintiff could not maintain an action against the defendant, as the injury complained of was too remote and impossible to be connected with the cause assigned for it (z). The action for enticing away a servant. Mere attempt will not do. Scienter. OF THE ACTION FOR ENTICING AWAY A SERVANT. An indictment will not lie for enticing an apprentice or servant from his master, it being only a private injury which may be redressed by civil action (a). If therefore, one take away my apprentice or servant by force an action of trespass will lie (b); but if he merely entice him to leave, and he do leave, an action on the case is the proper remedy (c). A mere attempt to entice a servant away, without any damage following, would not, however, entitle the master to maintain an action (d). But it is no objection to such an action, that the servant was only a journeyman who worked by the piece, if he were the plaintiff's servant (e). A man, however, who lived in his own house and took in work for different people, could scarcely be called the journeyman of any particular master (f). To support this action it is necessary to prove that the defendant knew the person to be the plaintiff's servant (g); but not to particularize (z) Ashley v. Harrison, 1 Esp. 48; that was an action for libel; and see Taylor v. Neri, 3 Esp. 386. (a) Reg. v. Daniel, 6 Mod. 99, 182; S. C. 1 Salk. 380; S. C. 2 Ld. Raym. 1116; Com. Dig. tit. "Indictment," G. 3. See 5 Geo. 4, c. 97, which repealed various statutes for preventing the seducing and enticing artificers and workmen to leave their employ and go to foreign parts. |