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§ 534. Apprentices.-An apprentice is one who is bound out to a master to learn some trade, business or profession, the master being also bound to instruct and initiate him in the occupation. An apprentice may be either an adult or a minor. So far as an adult is concerned, he is bound by whatever contract he makes, and his rights and liabilities must be determined therefrom. So far as infants are concerned, the matter is regulated by statute in the several states which must be exactly followed. It is usual to require the articles of apprenticeship to be recorded, and they must be signed by the parent or guardian, or in their absence they must be approved by the probate court. If the infant is over fourteen years of age, his assent and signature are generally required. The master acquires some of the rights of a parent over the infant apprentice, such as the right of moderate restraint and punishment, and being in loco parentis the master must care for the training, health and safety of the apprentice. In other respects, the rights and liabilities are the same as for ordinary masters and

servants.

$535. Who is a master or servant?-It is not necessary that there be a definite term of service, nor that any wages be paid or due. And the relation may exist even where the services were volunteered, if they were of such nature that a contract can be implied. The test in all cases is the sort of control that is exercised over the work. The relation of master and servant exists when one has the right to control and direct the work of another who is employed to render personal service otherwise than in pursuit of a separate calling. The employer may contract that the employé shall undertake to bring about a certain result and shall assume all responsibility for the means and method of the work. In

such case the employé is not a servant, but an independent contractor.

§ 536. Independent contractor.-A person is not a servant, but an independent contractor, who is employed, but is not subject to the order or control of the employer as to the method or means to be taken in doing the work. The general rule is that an employer is not responsible for the acts of an independent contractor. If, however, the employer dictates the method, or retains any direction or control over the contractor, he will to that extent be answerable for any injuries traceable to him. And if the work is unlawful in itself, or must necessarily cause the damage, the employer may be held liable jointly with the contractor. An independent contractor's liability to the employer for wrongs is no different from that of any stranger, except that he is bound to perform his contract.

§ 537. The contract between master and servant.A general hiring without limitation is at common law a hiring by the year. From custom, or from the times of payment, the period may be held to be monthly, weekly or daily. If the time is expressly fixed, it controls, and both master and servant are bound to the performance of the contract. If the contract is for doing what is illegal it is void; so, also, if the hiring is for an immoral purpose; and if any essential part of the consideration is illegal the whole contract is void. Contracts for personal services can not be specifically enforced, nor can they be assigned or transferred without consent of both parties. Such contracts are always subject to the implied condition that the person shall be able to perform the service, and if he is disabled without his fault he is excused from further performance. In the absence of stipulation or

statute to the contrary, wages are payable at the end of each term of service.

§ 538. Termination of the relation.-In addition to' the termination by expiration of the time of service, or the death or disablement of either party, the contract of service may be put to an end, (1) by the master's discharging the servant, or (2) by the servant's abandoning the service.

§ 539. Discharge by the master.-The master may discharge the servant for sufficient cause. Just what is sufficient cause must depend upon the facts in each case. Generally, however, it is sufficient cause for discharge that the servant is guilty of disobedience, immoral conduct, incompetency, habitual negligence, drunkenness, fraudulent conduct and the like. In case of discharge for cause the general rule is that the servant is entitled to payment for what he has done up to the time of discharge, but is not entitled to any damages for the unexpired term.

If the discharge be without good cause, the servant is entitled not only to payment for the work actually done, but to damages for the loss of his wages during the unexpired term. He is bound, however, to seek other employment. The measure of damages therefore is the unpaid balance of wages for the entire period, less what he might have earned elsewhere.

§ 540. Abandonment by the servant.-The servant is justified in abandoning the service, if he suffers ill usage at the hands of the master, or if the master refuses to allow him to work. These faults of the master are equivalent to a discharge, and the liability is measured accordingly.

22-Elem. Law.

Sickness or inevitable accident disabling the servant will justify an abandonment by the servant, but will entitle him to payment only for what he has actually done.

For an unjustifiable abandonment of service by the servant during a term of service, it was formerly the rule that as the price was entire and to be paid for the whole service, there could be no recovery for a part. The rule now in many states is that the servant may recover a proportionate part of the wages, less whatever damages the abandonment caused to the master.

§ 541. Wrongs independent of contract.-We pass now to the consideration of the tortious wrongs that involve the relation of master and servant. Such wrongs may create liability in the following ways, which will be considered in order: (1) Liability of third persons to the master. (2) Liability of third persons to the servant. (3) Master's liability for injury to others. (4) Servant's liability for injury to others. (5) Master's liability to servant for injuries (a) by master, (b) by persons for whom the master is answerable. (6) Servant's liability to master for injuries (a) to master, (b) to others.

§ 542. Liability of third persons to the master.-A master has an action against one who wrongfully entices away his servant or prevents the performance of the servant's duty to the master; and this even though the relation of master and servant be determinable at will. One who harbors another's servant, intending thereby to wrongfully deprive the master of the service of the servant, may be liable. Where the wrong is one causing direct loss to the servant and consequential loss to the master, as in the case of personal injury to the servant, each may recover for his own damages.

§ 543. Liability of third persons to the servant.— A servant being the inferior has no such interest in the master as will sustain an action by the servant for consequential damages from an injury to the master. The servant has a right of action against any one who by wrongful acts procures his discharge, provided he can show damages.

§ 544. Master's liability for injury to others.-The question here is, for what acts and omissions of the servant is the master liable to other persons? That the master is liable at all is upon the maxim, "He who acts through another acts himself." The wrongs done may have been either intended or unintended by master or servant, and the servant may have acted in violation of or obedience to the master's orders. The persons injured may be strangers, to whom no special duty was owing, or persons to whom the master was under special obligation, such as passengers or guests at inns. Upon the nature of the wrong and the kind of duty owing depends the liability of the master.

§ 545. Intentional and unintentional injuries.-The general rule is that where the servant's acts are within the real or apparent scope of his employment, the master is responsible; otherwise not. Hence for wilful and malicious acts of the servant the master is not generally liable, for such acts can not be supposed to be authorized. The rule for liability becomes more stringent, however, if the master is under some special duty to the injured person, as in case of a passenger, and has delegated the performance of that duty to the servant. In such case the master is responsible for all injuries done by the servant, during the time of the service; hence the master

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