394. Lumley v Gye (1853) 2 Ellis and Blackburn

Master and Servant – history 

The Facts /Findings

Case decided on exception (demurrer).

Allegation that defendant intentionally interfered with the contractual relationship between an impresario and his opera singer (Johanna Wagner) causing patrimonial loss, held to be good in law. 

Commentary

Willes appeared for the excipient.  His argument contained the following insights:  

“The relation of master and servant is peculiar and, though it originates in a contract between the employer and the employed, it gives rise to rights and liabilities, on the part of the master, different from those which will result from any other contract.  Thus the master is liable for the negligence of his servant, whilst an ordinary contractor is not liable for that of the person with whom he contracts.  And a master may lawfully defend his servant when a contractor may not defend his contractee.  And so a master may bring an action for enticing away his servant.  But these are anomalies, having the origin in times when slavery existed: they are intelligible on the supposition that the servant is the property of his master: although they have been continued long after all but free service has ceased, they are still confined to cases where the relation of master and servant, in a strict sense exists.  In the present case,  Wagner is a dramatic artiste, not a servant in any sense…”              

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