Master and servant is a term used to describe the legal relationship between an employer

(master) and employee (servant) for purposes of determining an employer's liability for acts of
an employee. A master and servant relationship is determined based upon the amount of control
the employer exercises over the service provide by the employee. A master will be liable for acts
of an employee committed while within the scope of employment. Such liability attaching to an
employer due to acts of an employee is called vicarious liability.

This is distinguished from a relationship between an employer and independent contractor. An

employer is generally not vicariously liable for acts of an independent contractor, whether or not
they were done within the scope of employment.

Mutual Obligations of
Master and Servant

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MASTER AND SERVANT, MUTUAL OBLIGATIONS OF. - It is universally admitted that a

good master makes a good servant; and one of the best signs of a proper understanding existing
between the employer and the employed is furnished by servants remaining for a lengthened
period in the same situations. A master should treat his servant with firmness but not with
severity; he should lead his servant to understand that when to once ordered anything to be done,
he expected it to be promptly and properly obeyed, without being compelled to reiterate the
order. A servant should be paid at a fair and just rate for his services. A master should carefully
avoid commissioning his servant in questionable offices, as, for instance, inducing him to tell a
falsehood, or ordering him to commit some mean act by which a petty advantage may be gained.
By such a course of conduct all moral restraint will be lost, and the servant will in all probability
avail himself of similar acts against his master's interest.

Family quarrels and disputes with any member of the househould never be carried on in the
presence of a servant; such displays have a tendency to lessen the parties in the eyes of the
servant, and encourage acts of insubordination. No master should make a confidant of his
servant, or intrust him with any secret to his prejudice; this at once gives a servant undue
importance, and leads him to take liberties which he would not otherwise dare to contemplate.
Some allowance should b« made for the feelings and sufferings of a servant; thus, when he is
overtaken by illness, or visited with affliction, he should be treated with merciful consideration;
such a concession is never thrown away, for should an employer subsequently share a similar
fate, he will find in his servant a sincere sympathizer and a watchful attendant. Servants should
be indulged in occasional holidays and hours of relaxation; under these conditions, labour will be
performed with more alacrity and greater interest.

The duties of a servant towards his employer may be summed as follows: He should implicitly
obey the orders given him, without murmur or dissent. He should also endeavour to gain a
knowledge of his employer's habits, and anticipate his wishes, so as to spare the necessity of
being continually reminded of duties which he is sure to be called upon to perform. A servant
should avoid giving himself airs of consequence, or acting or speaking impertinently; such
conduct only serves to display his ignorance, and an unfitness for the situation he holds. All
duties should be performed as conscientiously in the employer's absence as in his presence; eye-
service is a species of hypocrisy which must be sooner or later detected, with very humiliating
consequences. A servant should act with the same zeal and probity on his employer's behalf as he
would for his own; any petty advantage gained by aa opposite course a more than
counterbalanced by the guilty consciousness of wrong, and may be attended by an irretrievable
loss of character.

Whatever is done or said by the members of a family, which may be repeated to their prejudice,
should never be carried beyond the walls of the house; a servant who circulates gossip and
scandal respecting the household in which he lives, is unworthy of his trust, and brands himself
as a domestic spy and a traitor. Harsh expressions and hasty words, occasionally addressed by an
employer to his servant, should be overlooked instead of being resented. This is sometimes
difficult of observance, but it never fails to be appreciated, and will invariably win respect and
esteem.

A servant should always be true to his promise; thus when he is permitted leave of absence on
condition that he return at a stated time, he should be back at his post to the minute; any extra
liberty taken beyond that stipulated for is calculated to irritate an employer, and by shaking his
confidence, renders him reluctant to grant a like indulgence on a future occasion. Truthfulness
and stralghtforward conduct should be ever observed; when a servant has committed an error, or
has met with some mishap in the performance of his duties, he should not endeavour to screen
himself by subterfuge and misrepresentation, but at once acknowledge the fault he has
committed, or reveal the accident that has befallen him.

A servant should be cheerful and willing, and content with the station which has been assigned
him; he should remember that there must of necessity be some grades in life lower than others;
and, in order that he may reconcile himself to this order of things, he should contrast his lot with
that of thousands who are much worse situated than himself; and find comfort in the fact that he
is spared the responsibilities and vexations which attach themselves to the higher spheres of
society.

A servant is anyone who works for another individual, the master, with or without pay. The
master and servant relationship only arises when the tasks are performed by the servant under the
direction and control of the master and are subject to the master's knowledge and consent.

A servant is unlike an agent, since the servant has no authority to act in his or her employer's
place. A servant is also distinguishable from an Independent Contractor, who is an individual
entering into an agreement to perform a particular job through the exercise of his or her own
methods and is not subject to the control of the individual by whom he or she was hired.

The master and servant relationship arises out of an express contract; the law, however, will
sometimes imply a contract when none exists if a person was led to believe there was one by the
conduct of both the employer and the employee. No contract exists, however, unless both master
and servant consent to it. The contract can contain whatever terms and conditions the parties
agree to, provided they are legal. It is essential that the terms be sufficiently definite so as to be
enforceable by a court in the event that the contract is breached. An employment contract is
legally enforceable by the award of damages against either party who breaks it. No employment
contract, however, can be enforced by compelling the employee to work, since that would
constitute Involuntary Servitude, which is proscribed by the U.S. Constitution.

Federal and state laws regulate certain conditions of employment, such as minimum wages,
maximum hours, overtime pay, time off for religious observances, and the safety of the work
environment. Statutes ordinarily restrict employment of children, and federal Civil Rights laws
prohibit employment discrimination based upon race, color, religion, sex, or national origin.
Employment agencies are generally licensed and regulated, due to the risk that dishonest
agencies might come into existence.

Duties of Master and Servant

The general rule is that a master may hire and fire servants; however, this is limited to a certain
extent by the law. An employee cannot be discharged for a reason not permitted by his or her
employment contract or the collective bargaining agreement that may govern the employment;
nor can the person be fired because of race, color, religion, sex, or national origin. In addition, an
employer cannot fire an employee who is exercising certain rights, such as filing a discrimination
complaint with a governmental agency or filing for worker's compensation benefits.

An employee can be discharged for misappropriating funds, being unfaithful to his or her
employer's interest, refusing to perform services that were agreed upon in a contract, or for being
habitually late or absent. An employee cannot be fired for insubordination for refusing to
subscribe to unlawful directives from his or her employer, nor can the employee be required to
perform such illegal tasks as committing perjury or handling stolen property. A suit for damages
may be brought against an employer who wrongfully discharges an employee.

An employee has the obligation to be honest and faithful in the performance of duties. When
trade secrets are disclosed to an employee, he or she must not reveal them to others either prior
or subsequent to employment. In some cases, an employment contract specifies that the
employer owns any new ideas or inventions created by the employee during the period of
employment. When this is true, the employee has no rights in the idea or invention nor any right
to ask for additional compensation.

Compensation

An employee can enter into an agreement to work without compensation, but in the absence of
such an agreement, an employer must pay an employee at the agreed rate. The employer cannot
delay payment of wages or substitute something other than money unless the employee assents.
The employee is entitled to his or her wages as long as the work is completed. If an employer
wrongfully discharges an employee, the employee can collect all the money the employer had
agreed to pay him or her.
The amount and type of compensation is ordinarily regulated by agreement; however, it is
affected by a number of statutes. Employers are required to pay at least a certain prescribed
Minimum Wage under most state laws, which must be no less than the amount set by federal
law, unless it is a type of employment that is excluded under the law or the employer is small
enough in size to be exempt from the minimum wage laws. Other state and federal laws mandate
employers to allow for paid sick time and additional wages for overtime or holiday work. It
constitutes a violation of federal law, the Equal Pay Act (29 U.S.C.A. § 206 [1963]) to pay men
and women different wages for substantially similar work. Special laws protect Infants
(individuals under the age of majority) by restricting the hours they can work at certain ages and
proscribing their employment in certain kinds of jobs.

MASTER AND SERVANT.

I. Of Actions by Servants against their Masters, for the Recovery of their Wages.

II. Of the Liability of the Master in respect of a Contract

Made by the Servant.

III. Of the Liability of the Master in respect of a tortious

Act done by the Servant.

IV. Of Actions brought by Masters for enticing away Ap

prentices and Servants, and for Injuries done to their Servant; and herein of the Action for
Seduction— Witness—Damages.

I. Of Actions by Servants against their Masters, for the Recovery of their Wages.

If a person retain a servant under an agreement to pay him so much by the day, month, or year, in
consideration of the service to be performed, the servant having fulfilled his part of the contract,
may maintain an action against the master, or, in case of his death, against his personal
representative, for a breach of the contract on the part of the master. The form of action will
depend upon the nature of the contract; if the contract be by deed, an action of debt or covenant
must be brought (1); if by payroll, (i. e. in writing, but not a specialty, or verbal,) an action of
debt or assumpsit’s.
 If a servant be hired in the general way, without mentioning the time, that is a general hiring,
and in point of law a hiring for a year, and the servant is considered to be hired with reference to
the general understanding upon the subject, viz. that he shall be entitled to his wages for the time
he shall serve, though he do not continue in the service during the whole year; and if he die
before the end of the year, his personal representatives will be entitled to a proportional part of
the wages due to him at the time of his death. So where the agreement was for a yearly salary
and the party was dismissed before the end of the year. Without assigning any reason, dismissed
the plaintiff, who was willing to have continued: it was Holden, that there was an implied yearly
hiring, and that defendant was bound to pay the salary up to the end of the year, and that a
contract in writing was not necessary. A commission of bankrupt does not operate as dissolution
of the contract of hiring between the bankrupt and his clerk. But if the servant has not been guilty
of misconduct, and the master discharges him without warning, the servant in that case will be
entitled to a month's wages beyond the wages due for the period of actual service. Where a
servant under a general hiring at the rate of so much per annum, is dismissed for misconduct, he
cannot recover any of the salary of the current year, even for the time during which he has
served. Nor is it necessary that a master, having a good cause of dismissal, should either state it
to the servant or act upon it; it is sufficient if the cause exists, and the servant is not entitled to
object that it is not the cause for which he was dismissed.

II. of the Liability of the Master in respect of Contracts made by the Servant.

A CONTRACT made by a servant acting under the express" authority of the master, is binding on
the master. And the same rule holds, where the servant acts under an implied authority. The
defendant", who was a dealer in iron, sent a waterman to the plaintiff for iron on trust, and paid
for it afterwards. He sent the same waterman a second time, with ready money, who received the
goods, but did not pay for them. Pratt, C. J. ruled, that the sending the waterman on trust the first
time, and the defendant paying for the goods, was giving the waterman a credit so as to make the
defendant liable upon the second contract. In an action by a publican, for beer sold, it appeared
that the defendant had dealt with the plaintiff on credit, and paid him several sums for beer; at
length the defendant gave notice to plaintiff's servant who brought the beer that he would pay for
the beer as it came in. The defense to the present action was that the defendant had paid the
servant. Lord Eldon, C. J. thought the defendant was liable; for, as the change in the usual mode
of dealing had been suggested by the defendant himself, and as he had personal dealings with the
master, in a particular mode, notice to the servant alone of a change in that mode would not be
sufficient; the defendant must show that the master himself had notice of it, or he could have no
defense to the action. In an action on a Ferrier’s bill, it appeared that the defendant, by an
agreement with the groom, allowed him five guineas a-year, for which he was to keep the horses
properly shod, and furnish them with proper medicines when necessary. Lord Kenyon said that it
was no defense to the action, unless the plaintiff knew of this agreement, and expressly trusted
the groom. That if the servant buys things which come to his master's use, the master should take
care to see them paid for; for a tradesman has nothing to do with any private agreement between
the master and servant. But where an express authority is not given by the master and from the
nature of the case an authority cannot be implied, the master is not liable. Hence, where the
chaise of the master had been broken by the negligence of his servant, and the servant desired a
coach maker who had never been employed by the master, to repair it, which was accordingly
done, and the master refusing to pay the amount of the bill sent in by the coach maker, he
insisted on retaining the chaise as a lien; Lord Ellen borough, C. J., was of opinion, that the
coach maker was not entitled so to retain it; for whatever claim of that sort he might have, he
must derive it from legitimate authority; that unless the master had been in the habit of
employing the tradesman in the way of his trade, it should not be in the power of the servant to
bind him to contracts of which the master had not any knowledge, and to which he had not given
any assent. It was the duty of the tradesman, when he was employed, to have inquired of the
principal, whether the order was given by his authority; but having neglected to do so, the master
was not liable to the demand, and the detained of the chaise was unlawful. When the master is in
the habit of paying ready money for articles furnished in certain quantities to his family8, if the
tradesman delivers other goods of the same sort to the servant, upon credit, without informing
the master of it, and the latter goods do not come to the master's use, the master is not liable. A
master contracted with a tradesman to serve him with articles for ready money*, and the master
gave his servant money to pay for the articles, which was done accordingly; after some time, the
master turned away his servant and took another, to whom he gave money as before; the second
servant did not pay the tradesman, and afterwards ran away: an action having been brought by
the tradesman against the master, it was Holden, that the master was not liable to pay the money
again (2). A journeyman to a baker was Holden a good witness to prove the delivery of bread to
the defendant?, without a release, in a case where there was not any evidence of an usage for the
journeyman to receive the money for the bread delivered. A clerk who receives money for his
master is a good witness to prove that he has paid it over to his master; ex necessitates

III. Of the Liability of the Master in respect of a tortuous Act done by the Servant,

AN action on the case will lie against a master for an injury done through the negligence or
unskillful ness of the servant acting in his master's employ. As where the servants of a car man
ran over a boy in the streets", and maimed him by negligence, an action was brought against the
master, and the plaintiff recovered. So where the servant of A.b, with his cart, ran against the cart
of B., which contained a pipe of wine, whereby the wine was spilled; an action was brought
against A., the master, and Holden to be maintainable. An action on the case is the proper
remedy for an injury of this kind, and not an action of trespass6. In these cases, if the declaration
states that the defendant (the master) negligently drove his carted, &c., it will be supported by
evidence that the defendant's servant drove the cart. In case for negligently driving against the
plaintiff's horse, the plaintiff's servant, in whose charge the horse was, is not a competent witness
for the plaintiff without a release. But in an action for a similar injury, the defendant's servant
may be a witness for him without a release; the objection to the witness is now removed under
the stat. 3 & 4 W. 4. c. 42, ss. 26, 27, by making an endorsement on the record, according to the
directions of the statute. To an action on the case against several partners %, for negligence in
their servant, whereby the plaintiff's goods were lost, it cannot be pleaded in abatement that there
are other partners not named. Having stated the cases in which the law considers the master as
responsible for the injurious act of his servant, it may be proper to observe, that where the
servant commits a willful trespass, without the direction or assent of the master, an action of
trespass will not lie against the master: in such case the servant only is liable. As, where a servant
of the defendant willfully drove the defendant's chariot against the plaintiff's chaises; an action of
trespass having been brought against the defendant, it appeared in evidence, that the defendant
was neither present at the time when the injury was committed, nor had he in any manner
directed or assented to the act of his servant; it was Holden, that the action could not be
maintained. If a servant driving a carriage, in order to affect some purpose of his own, wantonly
strike the horses of another person, and produce the accident, the master will not be liable. But if,
in order to perform his master's orders, he strikes, but injudiciously, and in order to extricate
himself from a difficulty, that will be negligent and careless conduct} for which the master will
be liable1, being an act done clone in pursuance of the master's employment. Where an injury
happens through the misconduct of a servant in driving his master's carriage, it was Holden, that
the master was liable, if the servant be guilty of negligence whilst on his master's business,
though he may be going out of the way; but not if the servant uses the carriage for his own
purpose, and without his master's consent. Where one of a ship's crew willfully injured another
ship, without any direction from or privities of the master, it was Holden, that trespass could not
be maintained against the master, although he was on board at the time1. If a master command
his servant to do an illegal act, the servant as well as the master, will be liable to the party
injured; for the servant cannot plead the command of the master in bar of a trespass. An action
on the case was brought against a master and his servant", for breaking a pair of horses in
Lincoln's Inn Fields, where, being unmanageable, they ran against and hurt the plaintiff; it
appeared that the master was absent; but it was Holden, on motion in arrest of judgment, that the
action would lie; for it should be intended that the master sent the servant to train the horses
there. In an action on the case0 against the defendant for causing a quantity of lime to be placed
on the high road, by means of which the plaintiff and his wife were overturned and much hurt,
and the chaise in which they then were was considerably damaged; it appeared that the defendant
having purchased a house by the road side, (but which he had never occupied), contracted with a
surveyor to put it in repair for a stipulated sum; a carpenter having a contract under the surveyor
to do the whole business, employed a bricklayer under him, and he again contracted for a
quantity of lime with a lime-burner, by whose servant the lime in question was laid in the road.
In support of the action, it was contended, that the act which caused the injury complained of,
was an act done for the benefit of the defendant, and in consequence of his having authorized
others to work for him; and although the person by whose neglect the accident happened was the
immediate servant of another, yet, for the benefit of the public, he must be considered as the
servant of the defendant. If the defendant was not liable, the plaintiff might be obliged to sue all
the parties who had subcontracts before he could obtain redress. On the part of the defendant, it
was urged, first, that the cause of action did not arise, on the defendant's premises, the complaint
being, that a quantity of lime, which should have been placed there, was actually laid on the high
road: that being the case, there was no authority to show that the defendant was liable, merely
because the act from which the injury arose was done for his benefit. If that general proposition
were true, it might be contended, that the defendant must have answered for any accident which
might have happened during the preparation of the lime in the lime-burner's yard. Secondly, that
the liability of the principal to answer for his agents is founded in the superintendance and
controls which he is supposed to have over them. In the civil law, that liability was confined to
the person standing in the relation of prater families to the person doing the injury. Though in
our law it has been extended to cases where the agent is not a mere domestic, yet the principle
continues the same. Now clearly it was not in the power of this defendant to control the agent by
whom the injury to this plaintiff was affected. He was not employed by the defendant, but by the
lime-burner; nor was it in the defendant's power to prevent him, or any one of the intermediate
sub-contracting parties, from executing the respective parts of that business which each had
undertaken to perform. The court, however, were of opinion, that the action would lie; and that it
was competent to the plaintiff to bring his action either against the person from whom the
authority flowed, or against the person by whom the injury was actually committed. The
defendant, a gentleman usually residing in the country, being in London for a few days with his
own carriage, sent in the usual way to a stable-keeper for a pair of horses for a day. The stable-
keeper accordingly sent a pair, and a person to drive them. The defendant did not select the
driver, nor had he any previous knowledge of him; but the stable-keeper sent such person as he
chose for his purpose. The driver had no wages from his master, but depended on receiving a
gratuity from the person whose carriage he drove; the defendant in this case gave him five
shillings as a gratuity; by reason of his negligent driving, the plaintiff's horse sustained an injury;
whereupon an action was brought. The Court of King's Bench was equally divided: Abbott, C. J.
and Little dale, J. holding that the defendant was not liable: Bayley, J. and Holroyd, J. contra. A
and-B. were partners in the business of public carriers; by agreement between them, A. provided
horses and drivers for certain stages, and B. for the remainder. It was Holden, that
notwithstanding this division of the concern between them, they were responsible for the
misconduct and negligence of their drivers and servants throughout the whole distance. And that
it was not any defense to B. that the servant, through whose negligence an injury had been
committed, had been hired and was paid by A. alone. The captain of a king's ship of war was
Holden not to be responsible for the damage done to another vessel, through the negligence of
his lieutenant, who was upon deck, and had the actual direction and management of the steering
and navigating of the ship at the time, and when the captain was not upon deck, nor was called
upon by his duty to be there.

IV. of Actions brought by Masters for enticing away Apprentices and Servants, and for Injuries
done to their Servants; and herein of the Action for Seduction— Witness—Damages.

AN action on the case may be maintained by a master against any person who entices away his
apprentice or servant from his service8, or who continues to employ such servant after notice,
though the defendant did not procure the servant to leave his master, or know when he employed
him, that he was the servant of another*. But the master may, if he chooses, wave his action for
the trout; and bring an action of inebriates assumpsit’s for work and labour done by his
apprentice, against the person who tortuously employed him. So the captain of a ship of war
detaining an apprentice, who had been impressed, after verbal notice by such apprentice of his
condition, is liable in an action by the master for wages for the service of the appprentice1. But
the prize money gained by an apprentice serving on board a letter of marquee ship, does not
belong? To the master, the usage being proved that such money is the property of the apprentice.

It is not material whether the apprentice be legally apprenticed or not; it is sufficient if he be

so de facto.

It has been holden8, that a master cannot maintain an action for seducing his servant, after his
servant has paid him the penalty stipulated by his articles for leaving him. Neither can an action
be maintained for harboring an apprentice as such, if the master to whom he was bound was then
not a housekeeper, and of the age of twenty-four years.
 A master may maintain an action for an injury done to his servant, as false imprisonment,
battery, &c. which deprives the master of his service. The form of action is an action of trespass,
usually termed an action per quad seriatim amidst, the gist of the action being the loss of sender;
and hence the servant may be a witness, for he is not interested as to the point.

Of the Action for Seduction.

This form of action is frequently adopted by a parent for the purpose of obtaining compensation
in damages for debauching his daughter (3), and getting her with child, and the expenses
.attending the lying-in (4). As to the nature of the action, it has been solemnly decided"1,
contrary to the opinion expressed by Buller, J., (see n. (3)) that this is an action, of trespass, and
not trespass on the case; and consequently that a count for breaking and entering the plaintiff's
dwelling-house, and debauching his daughter, whereby he lost her service, may be joined in a
count omitting the trespass to the dwelling-house, and merely stating that the defendant, with
force and arms, debauched the plaintiff's daughter, per quad seriatim amidst. It has been Holden,
that this action may be maintained, although the daughter was of age at the time of the seduction.
But as the action is founded on the loss of service, that must be alleged in the declaration (5); and
it must be proved that the relation of master and servant (which in these cases the law implies
from very slight circumstances,) (6) subsisted at the time when the injury was committed, and
the circumstance of the daughter having been under age at that time, will not dispense with the
necessity of this proof6. It is not necessary, however, to prove a contract for service, if the
daughter was not in fact a servant, nor that she slept in the house. But evidence must be given of
acts of service; the slightest, however, will be sufficient, as milking cows and the like. In a case
where it appeared that the plaintiff's daughter had been married eight years before, had two
children, and was then separated from her husband for five years, during which the husband had
not any access, the wife having returned to her father's house, and lived with him, and acted as
his servant. During this residence with her father she was debauched by the defendant, and had a
child by him. It was Holden, that the relation of master and servant might and did exist in this
case, and that in the absence of any interference by the husband, it was not competent to the
defendant, a wrongdoer, to set up the rights of the husband as an answer to the action.