Libhart v. Wood , 1 Watts & Serg. 265 ( 1841 )

The opinion of the Court was delivered by

Rogers, J.

When a servant, who has engaged for a certain time at certain wages, is turned away by his master before the period for which he has engaged to serve has expired, and his dismissal be in consequence of his own misconduct, he will be entitled to no wages; for his faithful service is a condition precedent to his right to wages, and that condition, in the case supposed, he has not performed. But if his dismissal be unjust, the master can not, by his wrongful discharge, prevent the servant from recovering a compensation for his services. Thus the law carefully protects the rights of both master and servant. 19 Eng. Com. Law Rep. 346; 3 Eng. Com. Law Rep. 339; 25 Eng. Com. Law Rep. 257. In the case at bar, the hiring was for the season, at the rate of #20 per month, and although, in one sense, it may not be thought a hiring for a certain time, yet it can not be disputed, that it falls within the reason of the principles stated. By the contract, the servant agrees to serve his master faithfully for that period of time, although the termination of it may be longer or shorter, as the weather may be more or less severe. It is an express contract, but no difference is perceived between an express or implied contract; in either case it is open to the defendant, by way of defence, to insist that the plaintiff has failed to comply with his agreement. Nor is there that want of mutuality in the contract, which (as is supposed) can interfere with the defence. Both parties are bound by it. It can not affect the case, that it is part of the agreement that the master may at any time discharge the servant, unless a corresponding right to leave his service is reserved to the servant. Nor would it, I apprehend, even then prevent the enforcement of a penalty for wilful misconduct: public utility requires that the rule should be strictly observed. It must be admitted, that whether the servant be dismissed by his master for good cause, or he incapacitates himself from performing his part of the contract, as was the case here, can make no manner of difference in the application of the rule. The learned judge seems to suppose that there is a distinction between a larceny committed of the goods of the employer, and a stranger. But we do not feel the force of the distinction, nor can we perceive that the defence fails because the defendant omitted to prove that he sustained direct injury from the misconduct of the plaintiff There is good sense in the observations of Lord Tenterden, (Chit. Gen. Prac. 81.) that if a servant habitually embezzled his master’s property, the amount embezzled is wholly immaterial; and although the amount of wages sought to be recovered may exceed the amount embezzled, the servant is not entitled to anything. It may be impossible to ascertain the amount of injury a common carrier or inn-keeper may sustain from the unfaithful conduct of his servant, and therefore no direct proof of it ought to be required. It is often, from its nature, not susceptible of such proof. An injury, in the case of an inn-keeper or common carrier, is inevitable, where he is so unfortunate as to employ dishonest servants ; it must affect his business or the character of his house, although it may be impossible to show the extent of the injury. It is nothing, therefore, that in this particular case, the goods stolen were restored. Indeed, here there was a direct injury to the master, as, for one trip at least, he was deprived of the services of all his hands, in consequence of the dishonesty of the plaintiff. And who can say, and particularly in the business in which the defendant was engaged, that the services of a dishonest servant are worth anything, or who would knowingly employ such a servant ? His services, in the apprehension of every person, are worse than useless. In addition, the rule which deprives them of wages for improper conduct, has this recommendation, that it operates as an incentive to a faithful discharge of duty. It is a narrow view of the question, to suppose that it is intended for the benefit of the master alone. There are other considerations which enter into the subject, of a still higher nature. It contributes to the security of travellers, who are compelled to intrust their property to the custody of others. The intercourse between the different sections of our extensive empire is so great, that sound policy requires that every possible protection should be extended to them; and so far from believing that the defendant is offending against 'any principle of ethics, in retaining the wages of his unfaithful servant, in my judgment, he is discharging a duty, which he alike owes to himself and the public. We do not wish to extend the principle so far, as to forfeit wages already earned, on a contract which is at an end. But when the contract is entire, (and we conceive this to be a case of that description) although it may be for payment of wages monthly, he precludes himself from recovering the arrearages of his wages, when he is guilty of embezzlement or pillage, either from the master or a stranger. It may be unnecessary to _ add, that the same rule extends to common carriers, whether of passengers or goods, and to inn-keepers.

Judgment reversed, and a venire de novo awarded.