The word servant /Lat.servus) is a generic term embracing all persons bound or obliged to render service to others, and therefore including slaves; but where slavery does not exist, a servant is understood to be one who by contract has bound himself to nnder service to another, who in respect to the subject matter of the contract is Ins master. The law of England distinguishes domestic from other servants, and presumes a hiring when no time is specified to be for a year; but in the United States this distinction is not recognized. The contract of hiring may be verbal or in writing; if it be for more than a year, it must be in writing, or it will be valid only so far as the parties have acted under it. When the time of service is fixed, neither party has a right to terminate the contract except for cause; and what would be sufficient excuse is sometimes a question of difficulty. The master, if it is part of the contract that the servant shall reside with him, is bound to provide suitably for his wants, though not to furnish him medical attendance or medicine in case of sickness; and ill treatment or blows inflicted upon him are a breach of the implied terms of the contract.
On the other hand, the servant must obey all proper directions of the master in respect to the service, must attend faithfully to his duties, and be guilty of no grossly immoral or indecent behavior. The penalty if the servant shall leave the service without sufficient cause, or if the master shall wrongfully discharge him, is the payment of such damages as the other party can show he has sustained; and it is generally held that, as such a contract is an entirety, either party violating it can have no remedy against the other, but on the contrary will be liable to the other for a failure to perform it on his part for the whole period. But where no time is limited by the contract of service, either party may terminate it at his option, except perhaps that where the compensation is to be made by the week, month, or year, a strong if not conclusive inference might arise that the hiring at the outset was for one of these terms, and for another if the service continued after one had expired, and so on.
An apprentice is a servant, but subject to some peculiar rules. (See Apprentice.) Stewards, factors, and bailiffs are also considered as servants pro tempore; and for some purposes any one who assists another in his business, though only as a matter of kindness or favor, is by the law placed in the same category. The most important of these purposes is the protection of third persons who may be injured by the wrongful or negligent act of the person thus in the service of another. The rules of liability in these cases may be thus stated. Where a wrongful act is done by a servant by direction of the master, or in his presence so that his consent may fairly be implied, or as the natural or probable result of directions given by the master, or in the exercise of a discretion which the master has given, the master is answerable in damages to the person injured. So if the servant in the course of his employment conducts himself so negligently, or manages the business with such want of skill or prudence, as to cause an injury to another, the master must respond therefor.
These rules, however, do not make the master liable for anything done or omitted by the servant when not acting in his service, or under his express or implied command; but if the servant steps aside from his duty to commit an intentional wrong, he alone is liable therefor. But this rule is subject to an apparent exception in the case of carriers of passengers. Where, for instance, a railway company receives passengers to be carried, and intrusts them to the care of its conductors and other servants, if the conductor of a train shall cause a passenger who is in no default to be put off the cars, the company will not only be liable in that case upon the presumption that the conductor was acting in obedience to its orders, but it would also be liable if the conductor should in defiance of orders and wilfully and wantonly inflict an injury upon the passenger, because it was the duty of the company to see to it that the contract of carriage be not intrusted for execution to those who would either negligently or purposely violate it.
It should be observed in respect to these rules of liability on the part of the master, that they do not apply in favor of one of his servants who is injured by the carelessness or negligence of a.co-servant, but the servant is considered to have taken upon himself by the contract of hiring all risks of that character; though if he can show that the servant causing the injury was an incompetent or unfit person to be engaged in such employment, and that the master knew it when he employed him, thereby tracing the negligence back to the master, he may hold the latter responsible. One class of persons who make it their business to perform service for others are not held to be servants so far as to make the master liable for their negligent torts. These are such as act in an independent employment, and not under the immediate control, direction, or supervision of the employer. The man who draws goods for me by the day or week is my servant, but the railway company that transports them is not, neither is the licensed drayman. - Corresponding to his liabilities to third persons, the master has some rights.
One who entices his servant away from him before his time of service has expired, or who injures him so that he cannot labor, or who seduces his female servant, is liable to him in damages; and in the last mentioned case heavy punitory damages are sometimes allowed to be recovered. The courts consider any female a servant who is living with and performing service, however slight, for another, whether under contract or not; and a father, at the common law, only recovers for the seduction of his daughter on the grouud of her being his servant. In general, where a third person has a right to hold the master liable for the servant's act or non-feasance, he may at his option hold the servant also; and on the other hand, though the master may sue for an injury to the servant whereby he has lost his service, so the servant may have an action on his own account to recover the damages which are personal to himself. It should be observed that, though the officers of a corporation are regarded as its servants, yet the chief executive officer or superintendent of its business is for many purposes, so far as third persons are concerned, regarded as standing in the place of and representing its principal for the purposes of control and direction of other officers and servants; and the liability of the corporation will be the same for acts done under his direction as though done by direction of the corporate board of management.