1 Moses v. Stevens, 2 Pick. 332; Thomas v. Dike, 11 Vt. 273; Corpe v. Overton, 10 Bing. 252; Moulton v. Trask, 9 Met. 577; Stone v. Den-nison, 13 Pick. 1; Breed v. Judd, 1 Gray, 460.
2 Per Lord Abinger, Priestley v. Fowler, 3 M. & W. 6.
3 Spain v. Arnott, 2 Stark. 256. See, also, Read v. Dunsmore, 9 C. & P. 588.
4 Lilley v. Elwin, 12 Jur. 623; 11 Q. B. 755.
5 Turner v. Mason, 14 M. & W. 112.
§ 1305. The servant is also bound to be diligent and attentive to the duties of his service; and habitual neglect or absence occasioning loss or injury to the master will justify a dismissal, although it be not wilful and contumacious.5 And if the servant agree to use his best endeavors to promote his master's interests, a neglect to do so is good cause for dismissal.6 Thus, where in an action by a servant for a month's wages on the ground of his having been discharged without warning, it was proved that he had been negligent in his conduct, frequently absent when his master wanted him, and often slept out of the house at night; it was held that he could not recover because of his misconduct.1 But the neglect must be proved to be either wilful and contumacious, or injurious to the master, in order to entitle him to dismiss the servant.2 And mere absence without leave when there is a sufficient cause to excuse it, as an absence for the purpose of having a severe injury attended to,3 or a reasonable absence towards the end of his term for the purpose of procuring another situation (such an absence being warranted by custom),4 or a temporary absence on customary holidays,6 would not entitle the master to dismiss the servant.
1 Ibid. See Marsh v. Rulesson, 1 Wend. 514.
2 Callo v. Brouncker, 4 C. & P. 518.
3 Fillieul v. Armstrong, 7 Ad. & El. 557; Regina v. Stoke, 5 Q. B. 303.
4 Callo v. Brouncker, 4 C. & P. 518; Cussons v. Skinner, 11 M. & W. 161.
5 Cussons v. Skinner, 11 M. & W. 161.
6 Arding v. Lomax, 10 Exch. 731; 28 Eng. Law & Eq. 543.
§ 1306. Again, a servant is bound to behave morally and decently. And any act of dishonesty in relation to his master's property or business,6 or any criminal offence, though not injurious to his master,7 justifies a dismissal. The use of abusive language towards his employer or quarrelling with the fellow-servants has the same effect.8 So, also, a servant must not abuse his position so as to injure his master, for this would entitle the master to dissolve the contract. Thus, if he should seduce other servants to leave the master's service during their term of service, he would be liable therefor. But he would not be liable for inducing them to leave upon the expiration of their term of service.9 But a travelling servant or agent who solicits his master's customers to patronize him after his service shall be ended is not considered as doing a wrong which entitles his master to dismiss him, although, if he should solicit patronage of his master's customers to be given him while in the service of his master, it would be otherwise.1 Again, in respect to morality and decency, it has been held that the master might dismiss a servant for assaulting a fellow maid-servant with intent to ravish her,2 or for pregnancy,3 or for getting a fellow maid-servant with child,4 or for repeated intoxication.6 But the fact of a servant being the father of a bastard child before the master hired him, or being guilty of a crime of that description out of his master's house, does not justify his dismissal. It is not seducing the master's servants or turning his house into a brothel.6
1 Robinson v. Hindman, 3 Esp. 235. See, also, Callo v. Brouncker, 4 C. & P. 518.
2 Fillieul v. Armstrong, 7 Ad. & El. 557; Cussons v. Skinner, 11 M. & W. 161.
3 Rex v. Sharrington, 4 Doug. 11; Chandler v. Grieves, 2 H. Black. 606, n.
4 Rex v. Islip, 1 Strange, 423; Rex v. Polesworth, 2 B. & Ald. 483. 5 Reg. V. Stoke, 5 Q. B. 303.
6 Baillie v. Kell, 4 Bing. N. C. 638; Turner v. Robinson, 6 C. & P. 15; s. c. 5 B. & Ad. 789.
7 Libhart v. Wood, 1 Watts & Serg. 265; Atkin v. Acton, 4 C. & P. 208; Baillie v. Kell, 4 Bing. N. C. 638; 8. c. 6 Scott, 379.
8 See Kearney v. Holmes, 6 La. An. 373; Byrd v. Boyd, 4 McCord, 246.
9 Nichol v. Martyn, 2 Esp. 732. See, also, Turner v. Robinson, 6 C. & P. 15; 5 B. & Ad. 789.
§ 1307. Again, the doing of acts or the assertion of rights inconsistent with the relation of master and servant and injurious to the master will justify him in dismissing the servant,1 as if the servant set up a claim to be a partner;2 and in such a case the servant is not entitled to any compensation for his services since the last pay-day.
1 Nichol v. Martyn, 2 Esp. 732. In this case Lord Kenyon said, "The conduct of the defendant in this case may perhaps be accounted not handsome; but I cannot say that it is contrary to law. The relation in which he stood to the plaintiffs, as their servant, imposed on him a duty which is called of imperfect obligation, but not such as can enable the plaintiffs to maintain an action. A servant while engaged in the service of his master has no right to do any act which may injure his trade or undermine his business; but every one has a right, if he can, to better his situation in the world; and if he does it by means not contrary to law, though the master may be eventually injured, it is damnum absque injuria. There is nothing morally bad, or very improper, in a servant, who has it in contemplation at a future period to set up for himself, to endeavor to conciliate the regard of his master's customers, and to recommend himself to them so as to procure some business from them as well as others. In the present case, the defendant did not solicit the present orders of the customers; on the contrary, he took for the plaintiffs all those he could obtain; his request of business for himself was prospective, and for a time when the relation of master and servant between him and the plaintiffs would be at an end."
2 Atkin v. Acton, 4 C. & P. 208.
3 Rex v. Brampton, Cald. 14,16, 17, by Lord Mansfield.
4 Rex v. Welford, Cald. 57.
5 Wise v. Wilson, 1C.&K. 662.
6 Per Lord Mansfield in Rex v. Westmeon, Cald. 129.
1 Lacy v. Osbaldiston, 8 C. & P. 80; Singer v. McCormick, 4 W. & S. 265.
2 Amor v. Fearon, 9 Ad. & El. 548. See, also, Ridgway v. The Hun-gerford Market Co., 3 Ad. & EL 171.