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CHAPTER X.

SEDUCTION AND LOSS OF SERVICE.

Right to species of

service a

Historical

action for loss origin of

WHERE the relation of master and servant exists the right which the one has to the service of the other is regarded by the law as a species of property or interest, a wrongful infringement property. of which causing actual damage is a good cause of action (a). It has been already pointed out that an action lies for maliciously procuring a breach of contract, whether the contract be of service or otherwise (b). This remedy is merely a particular application of the general principle that each man shall be answerable for the damage which he intentionally causes to his neighbour without any legal excuse or justification, but has only of late years been fully recognised in the English law (c). Actions for loss of service, on the other hand, are of great antiquity, and had their origin in a state of society when service as a rule was a matter not of contract but of status. At common law if A. took the servant of B., he took what originally at any rate was regarded as the chattel of B., and thereby he committed a trespass. So if a servant was beaten this was a trespass on the property of the master. It was early settled, however, that such a trespass was not actionable per se, but that it was necessary to allege, with a per quod, actual damage by reason of the loss of service (d). The action, therefore, though founded on a notion of trespass was in substance for the consequential damage, and there was considerable fluctuation of opinion as to its proper form (e). It was however finally settled that the plaintiff might declare either in trespass or case (ƒ).

(a) Per eur. Grinnell v. Wells, 7 M. p. 1041.

& G.

(b) See above, p. 16.

(e) In Bowen v. Hall, 6 Q. B. D. 333. As to the further extension in Flood v. Jackson, (1895) 2 Q. B. 21, see above, p. 23.

(d) Robert Marys's Case, 9 Rep.

p. 113 a.

(e) Macfadzen v. Olivant, 6 East, 387. (f) Ditcham v. Bond, 2 M. & S. 436; Chamberlain v. Hazlewood, 5 M. & W. 515. It is to be noticed that the question of form of action may still be important with reference to the period of limitation.

of service.

Statute of labourers.

No action for enticing

he breaks no contract.

If a female servant was debauched and carnally known and through a consequent illness her master was deprived of her service, the carnal knowledge being a physical act committed against the will of the master was considered a trespass, and so alleged in the old form of pleading (a).

If the injury to the servant is produced not by a trespass but by an act of negligence, the master has nevertheless a right of action for loss of service (b).

By the first Statute of Labourers it was made a criminal offence for a servant to leave his service before the end of his term, or for any party to receive and keep a servant who had so left (c). Subsequently to the passing of this Act the Courts began to entertain actions founded on the breach of duty thereby created both for knowingly enticing servants away from their employment and for knowingly harbouring servants who had previously left their employment (d). The statute was repealed by 5 Eliz. c. 4, but the class of actions which had originated under it had by this time. become inveterate.

It will be observed that the words of the statute are directed servant where against dealings with servants "ante finem termini concordati," and this seems to shew the action lies only where there is a breach of contract. If the servant does no wrong in leaving his employment neither does the person who instigates him. Therefore if a man has contracted to serve for a definite period, it is lawful to induce him to leave at the conclusion of such period, even though otherwise he would in fact have continued in the old service (e). So it is lawful to procure a piece-worker to leave his employ as soon as the work in hand is finished (f). However, in Keene v. Boycott (g), the servant in question was an infant and employed under a voidable contract with the plaintiff. He did avoid this

(a) See Edmondson v. Machell, 2 T. R. 4.

(b) Martinez v. Geber, 3 M. & G. 88. (c) 23 Ed. III. The second chapter of the statute is as follows. Si messor falcator aut aliquis operarius vel serviens cujuscunque status vel conditionis fuerit in servitio alicujus retentus ante finem termini concordati a dicto servitio sine cause rationabili vel licentia recesserit pœnam imprisonamenti subeat et

nullus sub eadem pœna talem in servitio suo recipere vel retenere presumat.

(d) See the argument of Coleridge, J., on this point in Lumley v. Gye, 2 E. & B. pp. 253 sqq., which is approved in Bowen v. Hall, 6 Q. B. D. 333.

(e) Per Lord Kenyon, Nichol v. Martyn, 2 Esp. p. 734.

(f) Hart v. Aldridge, 1 Cowp. 54. (g) 2 H. Bl. 511.

contract and left his service at the inducement of the defendant, and it was held that there was a good cause of action. But this case seems contrary to principle and may be taken to be overruled by the decision of the Court of Appeal in De Francesco v. Barnum (a). The defendant there had enticed away an apprentice of the plaintiff. But the indenture contained unreasonable stipulations, and it was held that it might be avoided by the apprentice, and that it was not unlawful for the defendant to persuade the apprentice to do that which was lawful. It is different however if force or fraud be used to take or decoy the servant away. In that case the master has a right of action, even though the servant be under no binding obligation (b).

When service action for

determined no

servant.

It is at any rate clear that if a service is once lawfully determined no action can lie against anyone who receives or harbours the servant. In Forbes v. Cochrane (c) the defendant sheltered on harbouring board of a British man-of-war certain slaves who had escaped from the service of the plaintiff in Florida, and it was held that though the enticing of the slaves would have been actionable, since according to the law of Florida their servitude was lawful, yet that such servitude ceased directly they came under the British flag and that they might lawfully be harboured.

with

So long as the obligation of the servant to his first master con- Harbouring tinues, there lies on all other people who know that fact, a duty knowledge. not to aid and abet such servant in breach of his contract of service. Therefore if a person ignorantly takes into his employment one who ought to be serving elsewhere, he is bound on becoming aware of the breach of contract to dismiss him, otherwise he becomes liable to an action for harbouring with knowledge (d). The old forms of pleading in actions for enticing away or harbour- Motive ing servants, besides alleging knowledge of the service, always alleged that the defendant did the act complained of, "contriving and intending to injure the plaintiff." Whether the latter averment was regarded as material and traversable was not very clear. No doubt in the majority of cases the fact of knowledge is practically conclusive of malice. But there may be cases in which

(a) 45 Ch. D. 430.

(b) Per Willes, J., Evans v. Walton, L. R. 2 C. P. pp. 621-2.

(c) 2 B. & C. 448.

(d) Blake v. Lanyon, 6 T. R. 221; see Foster v. Stewart, 3 M. & S. 192.

material.

Wrongful act causing death of servant.

Wrongful act also a breach of contract with servant.

Action for loss

of service of child.

Loss of service must be technically proved.

the defendant bonâ fide, in the servant's own interest, advises him to break his contract. It is now settled that in such cases the action will not lie. It is essential that the defendant should have been actuated by a desire either to injure the plaintiff or to benefit himself at the plaintiff's expense (a).

It was held in Osborn v. Gillet (b), that a master could not recover damages for a loss of service caused by a wrongful act which resulted in the immediate death of the servant. And the maxim actio personalis moritur cum persona was held to apply. From the judgment, however, Bramwell, B., dissented, and certainly his reasoning appears to be far more satisfactory than that of the majority of the Court.

The case of Alton v. Midland R. Co. (c) was long supposed to decide that where a servant was injured by an act of the defendant which was a breach of contract with the servant the master could not recover for loss of service. It has recently however been explained that this case simply turned on a point of pleading (d). The rule is that if a servant is injured by positive misfeasance the master has his right of action none the less because the misfeasance is also a breach of contract, but if the servant has no remedy except by alleging a breach of contract, then the master has no right of action. A master cannot recover against a carrier who delays a servant on his journey, but it is otherwise if the carrier breaks the servant's leg.

Under the colour of an action for the loss of services a father may obtain redress for injury to his domestic or paternal right if his child is beaten or injured or taken or kept from his custody or control, and especially if his daughter is debauched and thereby rendered ill (e). A person who has accepted the responsibility and duty of a father stands on the same footing (ƒ).

Although the allegation of loss of service in actions of this nature is in general a mere fiction, yet it is still one which it is

(a) Bowen v. Hall, 6 Q. B. D. 333.
(b) L. R. 8 Ex. 88.

(c) 19 C. B. N. S. 213.

(d) Per A. L. Smith, L.J., Taylor v. M. S. & L. R. Co., (1895) 1 Q. B. p. 140; per Esher, M.R., and A. L. Smith, L.J., Meux v. Great Eastern R. Co., (1895) 2 Q. B. p. 391 and p. 394. See

also Berringer v. Great Eastern R. Co., 4 C. P. D. 163.

(e) Jones v. Brown, Peake, 233; Berringer v. Great Eastern R. Co., supra; Evans v. Walton, L. R. 2 C. P. 615.

(f) Irwin v. Dearman, 11 East, 23.

necessary to technically prove. The plaintiff therefore cannot recover where the child in respect of whom the alleged injury has arisen is of such tender years as to be incapable of any act

of service (a).

daughter.

It is, however, in cases where the wrongful act consists in the Seduction of debauching of a daughter, or a person owing the duty of a daughter, that the difference between form and substance operates most frequently to cause difficulty and work injustice.

must cause

The plaintiff must prove an act of carnal intercourse and a Seduction consequent disablement of the daughter from service, either by her illness. confinement or otherwise. If she has been intimate with more

time of

men than one and afterwards has a child, the only person liable is the man to whom the paternity is attributable (b). It must further Service at appear that there was a service both at the time of the original seduction and wrongful act and at the time of the subsequently accruing injury. time of illness.

If there is no service at the former date the whole foundation of the action fails; there is no relation between the plaintiff and the defendant, and no right of the former is infringed. Although there be a subsequent service which is interrupted in consequence of what has previously happened this is no cause of action, for the master takes the risk of the condition of the servant at the time of the commencement of the employment (c). If there is no service at the latter date there is no damage sustained, for the gist of the action is not the debauching itself, nor any other consequential damage except the loss of service (d).

A father, or a person in the position of a father, can establish a primâ facie case by shewing that the girl in question is under the age of twenty-one and unmarried (e). In such circumstances he has a right to her service, and this he does not lose unless he

(a) Hall v. Hollander, 4 B. & C. 660.

(b) Eager v. Grimwood, 1 Ex. 61. In Boyle v. Brandon (13 M. & W.738), the question was raised whether an action would lie where the illness was caused not by the seduction, but the subsequent desertion of the daughter by the defendant. But the damage would seem to be very remote. See Allsop v. Allsop, 5 H. & N. 534. (c) Davies v. Williams, 10 Q. B. 725.

(d) Grinnel v. Wells, 7 M. & G. 1033; Harris v. Butler, 2 M. & W. 539; Eager v. Grimwood, supra.

() Formerly the action of seduction was held not to be maintainable without proof that the relationship of master and servant existed and in all cases some service was held necessary. The rule was afterwards so far relaxed that if the child was a minor and unmarried and not in the service of anyone else, the service to her father was presumed.

Right of daughter

service when

under age.

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