PART V. MASTER AND SERVANT. CHAPTER I. DOMESTIC AND MENIAL SERVANTS. DEFINITION OF "MASTER" AND "SERVANT" RELATION OF MASTER AND SERVANT A DOMESTIC RELATION LEGACIES TO SERVANTS: SERVANT MUST HAVE GIVEN UP HIS PAGE 821 822 824 824 825 825 826 BLACKSTONE in his Commentaries' says that the relation of Master and Servant "is founded in convenience, whereby a man is directed to call in the assistance of others where his own skill and labour will not be sufficient to answer the cares incumbent upon him." Slavery with its incidents may be dismissed from consideration as being utterly repugnant to modern English social and legal notions. Freemen alone are concerned. دو "master" and Without venturing to attempt to define exhaustively (which Definition of would be next to an impossibility), the following is put forward "servant."" as a rough definition of the terms "servant and "master." A "servant" is a person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of certain work to be done. A "master" is the person who is legally entitled to give such orders and have them obeyed. This definition does 1 I Com. 422. 2 See Townshend v. Windham, 2 Vern. 546. Mr. Justice Stephen in his "Digest of the Criminal Law" (p. 220) thus defines a servant : "A servant is a person bound either by an express contract of service or by conduct implying such a contract, to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such servant to transact." See Reg. v. Negus, L. R. 2 C. C. R. 34. Relation of master and servant a domestic relation. Relation of master and domestic or menial servants only discussed. not embrace a large number of persons who from time to time, and for various purposes, are styled servants; thus, "in actions for seduction, a person who does any trifling act of service is regarded as a servant. Mere casual temporary employment for a particular purpose will not suffice to make a person a servant within the meaning of some statutes. In the case of others this is enough. Servant is used, for example, in one sense in the Carriers' Act (11 Geo. IV. & 1 Wm. IV. c. 68, s. 8), and in another in the Larceny Act (24 & 25 Vict. c. 96, s. 68)." 1 Hale in his Analysis classifies the relationship now under discussion among the "relationships economical," or domestic relations; and Blackstone also styles it an "oeconomical relation." It is a thoroughly domestic relationship, and in more ancient times the respective positions of wife and of child and of servant in regard to the head of the family were much nearer akin to one another than they are at present. The family of the Eastern patriarch or Roman father was constituted of units owning implicit obedience to their head, whose word was a law to them. There is not a relationship between men which exemplifies in a more marked degree the truth of the pregnant remark that the progress of human institutions is from status to contract, than that of master and servant. Of old the servant was in the condition of a slave, a bondsman, a captive of war, of one sold into servitude, or reduced into slavery by creditors, or by those whom he had wronged. In that state he remained; and his children after him were slaves also; his life and body and freedom were at the disposal of his master, who could deal with him as seemed best in his eyes. In time, and more especially under the softening influences of Christianity, the lot of the slave was bettered. In England all traces of slavery seem to have vanished by the end of the sixteenth century; and the relation of master and servant flowed from a pure contract of hiring and service; but it is not until more recent periods that statutes legalizing compulsory labour have been repealed. There is another class of servants who more nearly approach the older type and status of slavery, namely, apprentices; but their bonds are for a limited period of years, and their work is for their own advancement and good. The scope of this portion of the law of Domestic Relations will be confined to domestic and menial servants, and will embrace but a small portion of the law that is ordinarily treated of under the head of Master and Servant. Indeed, strictly speaking, the very term domestic or family relations would exclude all those 2 Page 33. 1 Macd. M. & S. 37. persons who could not satisfy its requirements. That wide branch of the law which deals with the relations of those who are popularly known as " Employers and Employed" will not be discussed in the succeeding chapters; nor will there be any need to have recourse to the intricate legislation which in more recent years has appeared on the Statute Book, owing to the great increase of commercial wealth and the development of trade and the general resources of the country. At the same time it will be necessary to illustrate and gather up the principles affecting the more limited relations of domestic servants and their hirers by the case law which deals primarily with the relations of those who are excluded from present consideration, where such principles are common to both classes. The reason lies in the fact that the everyday circumstances of the non-domestic employed, such as farm labourers, factory operatives, workers in mines, railway servants, and others engaged in risky trades, are more likely to cause litigation; their relations to their employers are in more pronounced contrast, and there is less status than contract in their mutual dealings, and so provocative of sharper disagreement. Further, the position in which non-domestic servants stand to each other and the community at large affords more frequent facilities than that of domestic servants for testing the mutual relations of employers and employed, and the responsibility of both towards third persons affected by the acts of the employed. Yet because the principles of law are to a considerable extent common to the different classes of servants, the more numerous illustrations afforded by certain classes of them as set forth in the case law may be used to explain the relations of the other classes which are less frequently litigated in the courts. There are, then, three classes of servants: (1) Menial, including domestic servants; (2) Apprentices; (3) Workmen employed in non-domestic occupations. The present discussion will be concerned with domestic servants and apprentices. There is no hard-and-fast rule as to who are domestic or menial' Domestic servants; and each case must depend upon its own particular 1 The term "menial" is derived through the French “meisnee,” “menie," from the low Latin word "mansionata," signifying a household. Its meaning was afterwards extended, and it signified under the form "meiny," a following, or retinue. Shakspeare thus uses it: "They summoned up their meiny; straight took horse ; commanded me to follow, and attend" (King Lear, act ii. sc. 4). It is also found in Chaucer: "And in her hows she abode with such meyne As to her honour nede was to holde." Troylus and Crysede, Book I. 127. The word "menialty," signifying common people," is formed from it. Blackstone derives the word from "mania," signifying that such servants dwelt within the walls of the domestic establishment of their master, as distinguished from those who lived out of doors and away from the house, but this derivation has no philological basis. The suggested derivation of Mr. Manley Smith from the Greek unv (a month) is more servants. Who are menial or domestic servants. circumstances. The word "menial" is of wider import than the word "domestic," and includes it. Every servant who at all times during the period of his service is under the immediate control, discipline, and management of his master, and is also liable to attend his person, falls within the category of menial; whereas domestic servants are those who form part only of the family household of their employer. 3 Menial servants, as including domestic, will form the subjectmatter of the succeeding pages. All indoor servants whose duty it is to attend the master, and perform household acts, and who are under the immediate and exclusive control of the master, are clearly menial and domestic servants; but other's whose work and duties could not be so described, have been held to be menial servants; thus, a head gardener, at £100 a year, residing in a detached house belonging to his master, with the privilege of taking apprentices (of which he had availed himself), and having five under-gardeners under him, has been held a menial servant.* So, a huntsman, engaged on the following terms: "£100 a year; draft hounds; house; coals, and bones; leave to keep a pig; two coats; two waistcoats; two pairs of breeches; two pairs of boots; one cap; one whip; and one pair of spurs," was held to be a servant; so also, one who entered into service under a written agreement that he was to have six shillings a week, three bolls of wheat, to set potatoes for his family's use, to have a cow kept, house and firing, and to keep a pig, no poultry to be kept, his wife to keep the museum clean, he himself to keep the gardens and pleasure-grounds in clean and good order, to assist in the stables, and, when required, at hay and corn harvest, to make himself generally useful; and one who was employed as a potman Who are not. in a public-house. On the contrary, a farm bailiff has been held not to be a menial servant; also a governess, from the position she holds in the family of her employer and society generally; quaint than accurate; for the term "menial" was in vogue long before it became the custom to pay domestic servants by the month, which is the growth of quite modern days. Their hiring is still legally by the year. It is not likely that a Greek word would be employed to express such a homely every-day relation as that of master and hired servant. The term menial" bears at the present time a narrow signification indicative almost of degradation; but that does not prevent its being a convenient word to designate those servants who are in the exclusive service of their master. 6 1 Schouler, Dom. Rel. s. 454, following the inaccurate definition given by Blackstone, would make menial of narrower import than domestic; but it is submitted that the latter is included in the former, for by domestic servants it is difficult to designate those not engaged in the domestic establishment; again, the common expression "menial acts can be applied to services rendered equally by outdoor as well as indoor servants. 2 Nowlan v. Ablett, 2 C. M. & R. 54. 3 Nicoll v. Graves, 33 L. J. C. P. 259. 5 Pearce v. Lansdowne, 62 L. J. Q. B. 441. and a tutor, on like reasoning, would be held not to be a domestic or menial servant. It has also been held that the housekeeper of a large hotel is not a menial servant, and cannot be dismissed on a month's notice in the absence of an express agreement;' also that a steward is not a menial servant.2 5 3 servants. service of The question as to who are or are not domestic or menial Legacies to servants has frequently been discussed in cases dealing with legacies to "servants"; and it is possible to gather from these cases certain principles which may serve as guides. The servant to whom, as such, a legacy is left must have given up his time Servant must have given up exclusively to the service of the testator, and must not be his time exsubject to the orders of any other person than the testator; 4 clusively to so, a coachman supplied by a job-master, who paid him weekly testator. wages, not living in the testator's house, but paid by him a weekly sum as board wages, and returned as his coachman, was held not to be a servant of the testator; but where a coachman had been hired by and lived many years with a testatrix, though his wages were paid by a job-master, he was held to be a servant of the testatrix." The above are instances of those who are not domestic servants; but if the legacy is bequeathed to "domestic servants," or "servants in my domestic establishment," or "household servants," a distinction must be drawn between indoor and outdoor servants to the exclusion of the latter." Another test is the period for which the servant has been hired; if the hiring has been a yearly one, and a legacy of a year's wages is left to the servant, he would be entitled to it; and it is only servants that are usually hired by the year that are entitled to such legacies. If the servant has been hired at Servant at weekly wages weekly wages he is not entitled to the legacy. But in the case not entitled, of Thrupp v. Collett," the direct contrary was held, seemingly on the ground that it was a very unusual thing to pay the wages of the servants in question (head and under-gardeners) by the week. A bequest of a year's wages to each of the servants of the testator living with him at his decease, who should then have lived three years in his service, does not exclude servants of the testator living in a different house from that in which the testator lived." 475 Lawler v. Linden, 10 Ir. C. L. Rep. 188. 2 See Forgan v. Burke, 12 Ir. C. L. Rep. 495. 3 Townshend v. Windham, 2 Vern. 546. 5 Chilcot v. Bromley, 12 Ves. 114. 6 Howard v. Wilson, 4 Hag. Eccl. Rep. 107. 4 Smith, M. & S. 565. 7 Ogle v. Morgan, 1 De G. M. & G. 359; Re Drax, Savile v. Yeatman, 57 L. T. 8 Booth v. Dean, 1 Myl. & K. 560. See post, chap. iii. p. 831. Blackwell v. Pennant, 16 Jur. 420. 10 26 Beav. 147. 11 Blackwell v. Pennant (ubi sup.). |