How malice established. Master volun mation. cook in the absence of the footman that he charged her with robbing him along with the footman; these communications were held privileged, both as regards the absent parties as well as those to whom they were respectively made.' But the master must not exceed the occasion; and if he should deliberately seek an opportunity of making such communication before a third person, which might have been made in private, it is evidence of malice which may displace the privilege.' Malice may be established by various proofs; one may be that the statement is false to the knowledge of the party making it. In the majority of the cases in which servants have maintained actions against their masters for defamation of character, express malice has been substantiated by proof of the falseness of the communication being known to the masters. The master or mistress must believe the communication to be true. To entitle matters otherwise libellous to the protection which attaches to communications made in the fulfilment of a duty, bona fides, or, to use our own equivalent, honesty of purpose, is essential; and to this again two things are necessary: (1) that the communication be made not only in the course of duty, that is, on an occasion which would justify the making it, but also from a sense of duty; (2) that it be made with a belief of its truth. Malice may also be shown by evidence of the communication not being made bona fide by the master. following cases are a few instances of the above propositions. The A person applied to a master for the character of his servant teering infor- the master gave the servant a bad character, the truth of which he was unable to prove; he also officiously stated to a former master a trivial act of misconduct on the part of the servant, in order to prevent him giving a second character. Malice on the part of the master was held to be rightly inferred. A master having discharged his servant, and hearing that he was about to be engaged by another person, wrote a letter to him, and informed him that he had discharged him for misconduct; the person communicated with in answer desired further information; the master then wrote a second letter, stating the grounds on which he had discharged the servant. In an action for libel on the second letter the jury found that it was not communicated bona fide, and found a verdict for the servant. The Court refused to disturb the verdict, A master in giving the character of his late servant to a person intending to take her, charged her with theft; and in support of the charge stated that she had borrowed money when 6 1 Manby v. Witt, Eastmead v. Witt, 25 L. J. C. P. 294. 5 Rogers v. Clifton, 3 B. & P. 587. 3 Toogood v. Spyring, 3 L. J. Ex. 347. Paulet, L. R. 5 Q. B. 102. 6 Pattison v. Jones, 8 B. & C. 578. she came into his service, and repaid it before she received any wages. In reply to an inquiry made afterwards by a relation of the servant, he admitted that the time when he paid the wages was entered in a book, which he produced, but refused to state what the time was; and on the same party remonstrating, and observing that the servant in consequence of her loss of character might have gone upon the town, he answered, "What is that to us?" It was held that this conduct was evidence to go to the jury (though slight) that the communication to the intended master was made maliciously.' The plaintiff having been employed by the defendant as governess to her children for upwards of a year, during which the defendant twice recommended her to other similar situations, was dismissed in an abrupt manner without cause assigned, and lost a new engagement in consequence of the defendant giving the following answer to an inquiry respecting her qualifications: "I parted with her on account of her incompetency and not being ladylike nor good-tempered;" to which a postscript was added, "May I trouble you to tell her that this is the third time I have been referred to. I beg to decline any more applications." The plaintiff gave general evidence of her competency, ladylike manners, and good temper. The previous applications referred to in the postscript were on the occasions on which the defendant had recommended the plaintiff to other situations. No evidence was given for the defendant. The judge at the trial directed that the communication was privileged, unless there was direct evidence that it was influenced by some malicious feeling; but that, if a prima facie case of intentional falsehood had been made out, the defendant ought to have shown, and could not under the circumstances have had much difficulty in showing, the assertion to have been made under a belief of its truth ; and that the question was whether, looking at the whole case, there was sufficient proof that the defendant had been influenced by an improper feeling. It was held that the direction was right, and that there was evidence of malice for the jury." If a married woman slander or libel a servant by knowingly giving him an untrue and defamatory character, she will, notwithstanding modern legislation, render her husband liable with herself to an action for damages at the election of the plaintiff'; she binds him as his agent, though he may be totally ignorant of the transaction; and the 1 Kelly v. Partington, 4 B. & Ad. 700. 2 Fountain v. Boodle, 3 Q. B. 5. In an action for an alleged libel, contained in an answer to inquiries respecting the character of a servant, the plaintiff establishes a case to go to the jury, if there is any evidence, as a matter of fact, that the answer complained of was untrue to the defendant's knowledge, or as to matters of opinion, that the defendant in giving the character did not really act on the opinion which he professes to have entertained. Giving a false character actionable, if damage ensue. Married Woman's Property Act, 1882, has not in this particular taken away his liability.' 2 If a master knowingly give a false character of a servant to another who is about to hire him, and the servant afterwards rob or otherwise injure his new employer, an action for deceit lies against the master. But a false character bona fide believed to be true would not subject the giver to an action. The giving of false and fictitious characters has also been made a criminal offence; Also punish thus, if any person personate a master or mistress, or knowingly imprisonment. give a false, forged, or counterfeited character, he is liable on conviction to forfeit a penalty of £20, or in default of payment may be committed to prison with hard labour for a period not exceeding three months." able by fine or Uttering forged testi It is an indictable offence at common law to utter a forged monials with document with intent to deceive, the forging of which is an offence at common law, and a testimonial to character is such a document." intent to deceive indictable. 1 Seroka v. Kattenberg, 17 Q. B. D. 117. 2 See Wilkin v. Reed, 15 C. B. 192. 3 See Evans v. Collins, 5 Q. B. 805; Thom v. Bigland, 8 Exch. 731; 9 Exch. 426 n. 4 32 Geo. III. c. 56, ss. I and 6. 5 Reg. v. Sharman, 25 L. J. M. C. 51; Reg. v. Moah, 27 L. J. M. C. 204. TO SUPPLY SERVANT WITH FOOD, ETC. TO INDEMNIFY SERVANT IN RESPECT OF OBEDIENCE TO LIABILITY OF MASTER FOR INJURIES RECEIVED BY SERVANT IN HIS SERVICE 866 868 869 vants-to fulfil his engage ment; to be honest, WHERE SERVANT NOT ACTING IN HIS SERVICE IS INJURED BY FELLOW-SERVANT PAGE 873 . 874 874 WHERE MASTER IS NEGLIGENT IN SELECTING SERVANTS Master and Servant. 2 Duties of ser- THIS chapter is concerned with the mutual rights and duties of The right of the one implies a corresponding duty upon the other. When a servant engages with a master to enter his service, it is the servant's duty to enter upon and fulfil his engagement. If he does not fulfil his part of the bargain, he is liable to be sued for the breach, although in the case of domestic servants it would be nearly always futile and unwise to pursue the remedies provided by the law. The further duties of a servant to his master during the service, so far as a domestic servant is concerned, are to be honest, respectful, and diligent;1 to evince due and pro. proper care of his master's property, and so he will be rendered liable for gross negligence, and for fraud, or misfeasance; and to obey all lawful orders. The orders must be lawful, and within the scope of the servant's employment. A domestic servant need not obey an order which is attended with a risk, or which would necessitate his performing a task which he did not engage himself to do; a lady's maid, for instance, would not be obliged to milk the COWS. If the order be lawful, though harsh, the servant must obey it, and where a maid-servant insisted, contrary to her master's orders, upon visiting her dying mother, and was dismissed, she was held to be properly dismissed because of her disobedience." The master has the right to expect, if not extraordinary diligence and care on the part of the servant, yet that he shall not persistently neglect his duty,' and disobey his orders. lawful orders. Rights of the master. None right to chastise ser vant. 8 If a master has to make good any loss or damage caused to third persons by reason of his servant's negligence or misconduct, such loss or damage can be recovered from him, that is, in law, if not in fact. A master nowadays has no right to chastise his servants if of full age for dereliction of duty, whatever may have been his rights in former times. He may moderately punish an apprentice if under age, and perhaps a domestic servant, if of tender age. If he exceed the bounds of moderation in the correction, and the death of the 1 Limland v. Stephens, 3 Esp. 269. 2 See Countess of Salop v. Crompton, Cro. Eliz. 777. 3 Turner v. Robinson, 5 B. & Ad. 789. Bac. Abr. Mast. & Serv. M. Turner v. Mason, 14 L. J. Ex. 311; Spain v. Arnott, 2 Stark. 256. See Turner v. Mason (ubi sup.); Woodley v. Metropolitan District Railway Coy., 2 Ex. D. 384. 6 Turner v. Mason (ubi sup.). 8 Fillieul v. Armstrong, 7 Ad. & El. 557. |