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the executors, etc., of employees of railways may recover damages for the employee's death as if not an employee if he would have been entitled to damages had not death resulted (Mass. P. S., 112, 212; 1883, 243; S. C. Const., 9, 15; N. Mex., 1893, 28, 3). By the Utah constitution (Utah Const., 16, 5)“the right of action to recover damages for injuries resulting in death shall never be abrogated” (see 8 2 above). In other States actions by employees for injuries resulting in death are governed by the general law as to such suits.
ARTICLE H. DUTIES AND LIABILITIES OF THE
EMPLOYEE TO THE EMPLOYER.
In this particular the law has not been extended in modern times, and, on the contrary, the old doctrine of petit treason, which made a servant in certain cases liable to extraordinary penalties for breach of faith as against his master, has long since fallen into disuse. It is sufficient, therefore, to state that a servant is liable to his master, or an employee to his employer, only for damages caused by the positive act or neglect of the servant or employee. For such damage the master or employer may, of course, bring suit against the employee; but for obvious reasons this is rarely done, and his more usual remedy is to discharge him. A discharge for such cause may commonly be made without notice or warning (see chap. 1, Art. A, $ 5), and gives no rise to any action by the servant for damages unless engaged by a time contract. And in such cases if the contract be that the work is to be done to the employer's satisfaction, or a similar phrase is used, the employer's judgment is final, and the employee can not go to the jury on the question whether it was warranted by the facts. The California and Montana Codes have elaborate statutes embodying the common law.1
employee for support, may maintain an action for damages therefor and may recover in the same manner, to the same extent as if the death of the deceased had not been instantaneous, or as if the deceased had consciously suffered.
So, in effect, in Mississippi (1898, 65; 1896, 87). For the Indiana statute, see § 2, note 3 above p. 74; for Colorado, § 3, note 2 (p. 70).
Sec. 2591. If such injury results in the death of the servant or employee, his personal representative is entitled to maintain an action therefor, and the damages recovered are not subject to the payment of debts or liabilities, but shall be distributed according to the statute of distributions.
SEC. 2592. Damages recovered by the servant or employee, of and from the master or employer, are not subject to the payment of debts, or any legal liabilities incurred by him.
One who, for a good consideration, agrees to serve another must perform the service, and must use ordinary care and diligence therein, so long as he is thus employed.
An employee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.
An employee must perform his service in conformity to the usage of the place of performance, unless otherwise directed by his employer, or unless it is impracticable, or manifestly injurious to his employer to do so.
An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill.
An employee is always bound to use such skill as he possesses, so far as the same is required, for the service specified.
Everything which an employee acquires by virtue of his employment, except the ARTICLE I. DUTIES AND LIABILITIES OF EMPLOYER
AND EMPLOYEE TO THIRD PERSONS.
This subject, perhaps, forms no part of the matters to be investigated by the commission, but as a matter of fact there are few statutes on the subject, and the common law is, of course, preserved, by which the master or employer is liable to third persons for any acts or defaults of his servant or servants causing injury to such third persons for which they might recover if done or caused by the master himself, provided only that such acts were performed or defaults made by the servant in or about the execution of his master's business; and railroads or other common carriers are commonly by statute made liable in cases where third persons have been killed by their negligence or default, the default or incompetency of their servants, or the defective
compensation, if any, which is due to him from his employers, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.
An employee must, on demand, render to his employer just accounts of all his transactions in the course of his service, as often as may be reasonable, and must, without demand, give prompt notice to his employer of everything which he receives for his account.
An employee who receives anything on account of his employer, in any capacity other than that of a mere servant, is not bound to deliver it to him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employee himself.
An employee who has any business to transact on his own account, similar to that intrusted to him by his employer, must always give the latter the preference (Cal. Civ. C., 1978, 1981-1988; Mont. Civ. C., 2673, 2676-2683; N. Dak., Civ. C., 4098, 4104 4114; S. Dak. Civ. C., 3758, 3761-3768—substantially identical).
An employee who is expressly authorized to employ a substitute is liable to his principal only for want of ordinary care in his selection. The substitute is directly responsible to the principal.
An employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the latter; and the employer is liable to him, if the service is not gratuitous, for the value of such services only as are properly rendered.
Where service is to be rendered by two or more persons jointly, and one of them dies, the survivor must act alone, if the service to be rendered is such as he can rightly perform without the aid of the deceased person, but not otherwise (Cal. Civ. C., 1989– 1991; Mon. Civ. C., 2684–2686; N. Dak., Civ. C.,4112-4114; S. Dak., ib., 3769-3771).
Every employment in which the power of the employee is not coupled with an interest in its subject is terminated by notice to him of:
1. The death of the employer; or,
An employee, unless the term of his service has expired, or unless he has a right to discontinue it at any time without notice, must continue his service after notice of the death or incapacity of his employer, so far as is necessary to protect from serious injury the interests of the employer's successor in interest, until a reasonable time after notice of the facts has been communicated to such successor. The successor must compensate the employee for such service according to the terms of the contract of employment.
An employment having no specified term may be terminated at the will of either party, on notice to the other, except where otherwise provided by this title.
An employment, even for a specified term, may be terminated at any time by the employer, in case of any wilful breach of duty by the employee in the course of his nature of their machinery or appliances, recovery, in cases of instantaneous death, being commonly limited to $5,000, and suable by the executors, or widow, or heirs of the person deceased.
In Washington it is made a misdemeanor for street railway companies not to employ experienced and competent men (Wash. 1897, 17).
In many States the employment by railroads of color-blind persons is prevented (Mass. 112, 179; Ohio 9816; Ala. 1887, 47), or of persons unable to read and write, as engineers (N. Y. P. C. 418; Minn. 6634), or of persons liable to intoxication (N. Y. 1890, 565 and 568; Ohio 1891, p. 429; Mich. 3367). The employment of such persons by any common carrier is made a misdemeanor (N. Y. 1892, 401; Wis. 1592–3).
It is in some States made a misdemeanor for a locomotive engineer or conductor to be drunk while on duty (Nebr. 1811; W. Va. 145, 30; Ark. 6198; N. Dak. P. C. 7320; S. Dak. P. C. 6665; Mont. P. C. 690; Okla. 2275; N. C. 1972; Miss. 1275; Fla. 2693).
employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.
An employment, even for a specified term, may be terminated by the employee at any time, in case of any wilful or permanent breach of the obligations of his employer to him as an employee.
An employee, dismissed by his employer for good cause, is not entitled to any compensation for services rendered since the last day upon which a payment became due to him under the contract.
An employee who quits the service of his employer for good cause is entitled to such proportion of the compensation which would become due in case of full performance as the services which he has already rendered bear to the services which he has to render as full performance (Cal. Civ. C. 1996–2003; Mont. Civ. C. 2700– 2707; N. Dak. Civ. C. 4116–4122; S. Dak. ib. 3773–3779).
Master and servant.-A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master.
A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for one year; a hiring at a daily rate, for one day; a hiring by piecework, for no specified term.
In the absence of any agreement or custom as to the term of service, the time of payment, or rate or value of wages, a servant is presumed to be hired by the month, at a monthly rate of reasonable wages, to be paid when the service is performed.
Where, after the expiration of an agreement respecting the wages and the term of service, the parties continue the relation of master and servant, they are presumed to have renewed the agreement for the same wages and term of service (Cal. Civ. C. 2009–2012; Mont. Civ. C. 2720–2723; N. Dak. Civ. C. 4123–4126; S. Dak. ib. 3780–3783).
The entire time of a domestic servant belongs to the master, and the time of other servants to such an extent as is usual in the business in which they serve, not exceeding in any case 10 hours in the day.
A servant must deliver to his master, as soon as with reasonable diligence he can find him, everything that he receives for his account, without demand; but he is not bound, without orders from his master, to send anything to him through another person.
A master may discharge any servant, other than an apprentice, whether engaged for a fixed term or not:
1. If he is guilty of misconduct in the course of his service, or of gross immorality, though unconnected with the same; or
2. If, being employed about the person of the master, or in a confidential position, the master discovers that he has been guilty of misconduct
, before or after the commencement of his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him (Cal. Civ. C. 2013–2015; Mont. Civ. Č. 2724-2726; N. Dak. ib. 4127-4129; s. Dak. ib. 3784–3786).
POLITICAL AND LEGAL RIGHTS OF LABORERS.
ART. A. POLITICAL RIGHTS, VOTING, ETC.
SEC. 1. GENERAL.-By the Constitution laborers in all States must have the same political rights and liberties as any other class of citizens; and no express statutes are needed to secure this. A few statutes upon the subject have, however, been passed. Thus, in Minnesota and Wyoming, where employers are forbidden to require as a condition of employment the surrender of any right of citizenship or to discharge candidates because of their nomination for an election, or to interfere in the matter of such nomination."
SEC 2. VOTING.–And in nearly all the States it is made penal or criminal for any person, by threatening to discharge an employee or to reduce his wages, or by promising to give him higher wages, or otherwise, to attempt to influence a voter to give or withhold his vote; but in Utah this statute applies to corporation employers only. And in New York and other States political "pay envelopes” or political placards are forbidden to be used by employers. In a few States a
Wyo. 1893, 9; Minn. 6962.
Mass. 1898, 548, 410; Conn. 276; N. Y. P. C., 41 p; 41_t; N. J. 1890, 231, 71, 1898, 139; Pa. Dig. p. 480, $ 52; Del. 1881, 329; Ohio 1892, 32; Ind. 2341; Mich. 9382; Iowa 1892, 33; Wis. 4548a; Kans. 1897, 129; Del. 16, 1; Mo. 1897, p. 108; W. Va. 5, 7; N. C. 2715; Minn. 114; Tenn. 1897, 14; Ark. 2656; Cal. 1893, 16; Nev. 1895, 103, 19; Colo. 1891, p. 167 (see note below); S. Dak. 1891, 58; Idaho 1891, p. 50; Mont. P. C. 108; Wyo. 1890, 80, 174; Utah 1897, 50, 8; S. C.Crim. L. 241; La. R. L. 902; U. S. R. S. 5507; N. Mex. 1889, 135, 4; Ariz. 1895, 20. But in some States this statute applies only to corporations: Tenn., W. Va. In Utah the constitution forbids the political and commercial control of employees (Art. 16, § 3). And so by statute (1897,50) in Colorado.
2 By the Colorado statute (1897,50):
SECTION 1. It shall be unlawful for any individual, company or corporation or any member of any firm, or agent, officer or employee of any company or corporation, to prevent employees from forming, joining or belonging to any lawful labor organization, union, society or political party, or to coerce or attempt to coerce employees by discharging or threatening to discharge them from their employ or the employ of any firm, company or corporation, because of their connection with such lawful labor organization, union, society or political party.
SEC. 2. Any person or any member of any firm, or agent, officer or employee of any such company or corporation, violating the provisions of section one of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars or imprisoned for a period not less than six months nor more than one year, or both, in the discretion of the court.
2 It shall not be lawful for any employer, in paying his employees the salary or wages due them, to inclose their pay in
pay envelopes upon which there is written or printed any political mottoes, devices, or arguments containing threats, express or implied, intended or calculated to influence the political opinions or actions
period of two hours, or reasonable time to vote, is required to be given employees of manufacturing, mechanical, or mercantile establishments upon election days;: and in Tennessee absence for voting is declared no violation of a contract for personal service; "and every contract which will, or is designed to, keep such voters away from the polls shall be void. * In many States election day is made a legal holiday; so, in New Jersey, eight hours is made a full day's work upon election days.
SEC. 3. SPECIAL PRIVILEGES OF ARMY AND NAVY VETERANS. There are in many Statos recent statutes specially giving preference of work to veterans of the civil war, or exempting them from the operation of civil-service laws, or giving to them or the Sons of Veterans special educational or eleemosynary privileges. Thus, in many States discharged soldiers or sailors are to be preferred in all public works by or in behalf of the State or municipalities thereof, but only provided they possess the other requisite qualifications; and, in Massachusetts, without having passed the civil-service examination. So, the widows and orphans of deceased soldiers and sailors may not be discharged.
The new constitution of New York provides for such a preference, and that all examinations shall be competitive so far as practicable; and under it the act of 1895, chapter 344, providing that competitive examination shall not be deemed practicable or necessary in cases when the pay of the office does not exceed $4 per day, has been held constitutional in a lower court.
SEC. 4. COMPETITION OF ALIEN LABOR, CONTRACTS WITH ALIENS, ETC.—By the constitution of California, “No corporation now existing or hereafter formed under the laws of this State shall, after the adoption of this constitution, employ, directly or indirectly, in any capacity, any Chinese or Mongolian
» (Cal. Const. 19, 2). This section, and sections 178 and 179 of the Penal Code, which were enacted to give it effect, were adjudged by the circuit court of the
of such employees. Nor shall it be lawful for any employer, within ninety days of general election, to put up or otherwise exhibit in his factory, workshop, or other establishment or place where his employees may be working, any handbill or placard containing any threat, notice, or information that in case any particular ticket or candidate shall be elected, work in his place or establishment will cease, in whole or in part, or his establishment be closed up, or the wages of his workmen be reduced, or other threats expressed or implied, intended or calculated to influence the political opinions or actions of his employees. This section shall apply to corporations, as well as individuals, and any person or corporation violating the provisions of this section shall be deemed guilty of a misdemeanor, and any corporation violating this section shall forfeit its charter (N. Y. P. C. 41, t; 1894, 714; Mont. P. C. 109; Utah 1897, 50, 8; Tenn. 1897, 14, 4–5; Cal. ib.; Nev. ib. 36; Colo. ib.; S. Dak. ib.; Ariz. ib).
3 Mass. 1898, 548,5; N. Y. 1892, 680, 113, 1896, 909, 109; Ohio 1890, p. 280; Ind. 2341, 6240; Ill. 46, 312; Iowa 1892, 33; Minn. 12; Kans., W. Va. 3, 52; N. C. 1895, 159, 72, 1897, 185; Ky. Con. 48; Stats. Mo.1895; Cal. Pol. Č. 1212; Colo.1891, p. 165; S. Dak. 1897, 60; Okla. 2820; Utah ib. 19; Ariz. 1891, 64.
* Tenn. 1039. See also Chap. I, Art. C, $ 4.
5 N. Y., Pa., Wis., Md., Mo., Tex., Cal., Oreg., Dak., Idaho, Mont., S. C., Fla., Ariz. But quaere as to whether these statutes apply as to industrial labor. See Stimson's Am. Stat. Law, $$ 4134, 4727.
6 N.J. p. 368, 177. 1 Pa. Dig., p. 1922; Conn. 1889, 124; N. Y. 1887, 464; 1894, 716; Ohio 10015; Minn. 8041; Kans. 5927, 5928; Dak. 1887, 265; Mass. 1896, 517; Cal. 1891, 212; Wash. 1895, 84; S. Dak. Pol. C. 2474.
Kans. 5928. • Re Keymer, 12; Misc. (N. Y.) 615. So in Mass.