Page:The New International Encyclopædia 1st ed. v. 13.djvu/200

* MASTER AND SERVANT. 172 MASTER AND SERVANT. ing is necessary. Thus a contract of service, to continue during the life of either party thereto, may l)e made orally, since it may teniiiiiate with- in a ear after it is made. And cveii when an oral agreement is made for a term longer than a year, if the master receive and accept services renderc<l by the servant and then refuse to go on and complete the contract, the latter may re- cover, in an action upon an implied contract, technically called a (/uuntuiii mcniil, the value of the labor he has thus performed. When the services continue for a year, and after its expira- tion the servant remains in the same emiiloyment without any further expressed agreement, a re- newal of the contract for another year and upon the same terms is presumed by law. In the ab- sence of special contract as to the time of service, it is sometimes difticult to determine whether the hiring is for a year or for a shorter period, such as .a month, week, etc. The common instance of the hiring of farm hands, in which ea<Ji of the interested parties had a right, in the alisencc of any contract stipulations, to assume that the services would continue through the four sea- sons, gave rise to the presumption, which came to be applied to most contracts of hiring in Eng- land, that if no time were specilied an agreement was meant to last for one .year. But this pre- sumption is casilv overcome by slight evidence of facts and circumstances which indicate a con- traiy intention. Thus the period for which the wages are to be paid, as by the quarter, month. week, etc., will frequentlv lie decisive in proving the hiring to be for a vear, a month, a week, etc. And it ma.v be laid down as the general rule in the United States that where the contract is silent as to the term of service and there is no well-defined usage in the particular cnmmunit.v on the sul).jeet. the hiring is terminable by the will of either party. After the relation has been duly con.stituted, we have to consider ( 1 ) the mutual duties and liabilities of the parties, and (2) their liabilities to third parties and rights against them. ( 1 ) !^IuTUAI, Duties and Liabilities, The servant is bound to have competent skill for the service which he undertakes, to exercise due diligence in his work, to ohcv all lawful orders of his master concerning the labor for which he was engaged, to conduct himself respectfullv, and not to leave liis employment during the time for which the contract was made. If he leave the master without just cause during the stipulated time, he cannot recover inpaid wages for the services already rendered. And if he be right- fuU.v discharged he forfeits his wages for the period during which he has served without pay- ment. I!ut if he be prevented by sickness from completing his part of the contract, he may re- cover for the value of the services which be has rendered. If his unjustifiable breaidi of contract results in damage to his emjilovcr he is liable therefor. In some eases servants may he en- joined by the courts from breaking their con- tracts of service. (Sec Consimkacy and Strikf:.) Some of the grounds on which a servant may be lawfuU.v discharged before the expiration of his term are gross immorality, willful djiolicdience of orders, habitual negligence, and glaring in- competence to perform his duties. If during his term he be discharged unjustly and without an.v such cause, he mav either treat the contract as rescinded, an<l sue for the value of the seri-iccs already rendered; or he may sue for the breach of the contract and in that action recover both the value of the services ahead.v rendered and the compensation for the damages sustained by him because of his wrongful discharge. But it is always his duty, during the residue of the term for whicii he was employed, to seek for other employment of a similar character in the same locality, in order to reduce as much as pos- sible the damages recoverable against his master. If he do not thus seek and accept such similar employment as he may be able to obtain, the master may show that fact, in mitigation of damages, in the action brought by the scnant for the breach of the contract. If, after the con- tract is made, the master neglect or refuse to furnish work pursuant thereto, the .servant may recover as damages the entire amount of the stipulated wages, if he have dulv held himself in readiness to perform and been unable bj' rea- sonable elfort to obtain other emidovment of a similar character. If he sue. however, before the expiration of the stipulated time and recover damages up to the time of trial, he will be there- by barred or precluded from maintaining any further action for subsequently securing dam- ages. This results from the principle that a contract for work and services is entiie, and its breach gives only one right of action. When a servant becomes sick, the ma.ster is generally imder no obligation to supply him with medical attendance; but an inijilied contract to pav for the services of a physician who is called in is frequentlv fastened upon the master from the fact that he has the phvsician called and other- wise acts as if he were assuming the obligation. If a master furnishes medical attendance gra- tuitously, he is not liable to the servant for the ])hysician's negligence, provided he used reason- able care in selecting him. While, as a rule, the servant takes upon him- self all the ordinary risks incident to the employ- ment, still the master is inder a legal oliligation to use reasonable and ordinary care to supplv the servant with safe inachincrv and appliances with which to work : and if, because of the master's failure to perform the dutv properly, the servant be injured, without anv contributor.v negligence on his own part, he ma.v recover, in an action against his master, compensation for the dam- ages thus sustained. If the sen-ant be employed upon work involving special risks, of which he cannot be presumed to be cognizant, it is the duty of the master to inform him of such risks, or the master will be ihargealdc with negligence. Where the labor is in connection with specially danger- ous maehincrv — such, for example, as that used by railroad companies — the courts require the master to have the same verj' carefuU.v inspected, to see, as far as is reasonably possible, that it is safe; but even in such cases they do not go to the extent of making the master an insurer of the servant's safety in the use of such nuv cbincrv. If a servant be aware of the dangernus character of the place in which, or maehincrv or tools with which, he is requested bv tlic master to work, and continue in his employment without objection on that ground, he cannot recover dam- ages from the master for an injurv which results from any such cause. But it sometimes happens that when the servant complains of the defects in the implements with which he is required to labor, he is in<luced to c<aitinuc at his work by