Putney v. Swift, Murphy & Co.

McCay, Judge. The cases in 8 Georgia, 190, 14 Ibid., 135, and 21 Ibid., 157, are all cases where the servant (overseer,) had actually-entered upon the performance of the duties undertaken and was discharged; and the provisions of section 2217 apply to the same state of facts. The case at bar is not that case. Here the relation of master and servant did not, in fact, commence. The employee did not enter on the service. The books make a clear distinction in the cases. The rule, as laid down in 8 Georgia, 192, and adopted by the Code, is taken from the summary of Mr. Smith in his book, Master and Servant, page 95, and is, in terms, applicable to a servant wrongfully discharged. A suit for refusing to permit the plaintiff to enter on the duties he is employed to perform stands on a different footing. He can only recover the damages he has suffered. It stands like any other breach of contract, as a contract to buy corn or cotton, or to do any other thing. The measure of damages, as laid down in 8 Georgia, 192, and the Code, seems anomalous, and it is difficult to sustain them, either on principle or by authorities. That case, and the other cases in our books and the provisions of the Code, all apply to overseers; and whilst it is not apparent that there ought to be any distinction between this class of servants and others, yet as they were a large and influential class, under our old system special rules might be, for reasons of public policy, applicable to them. Undoubtedly, at common law, even as to discharged servants, the measure of damages was for the jury, under the proof. It might be less or more than the contract price: See Smith on Master and Servant, 98, 99. We do not feel authorized to go further than these cases and the Code go, to-wit: to apply the rule further than to discharged servants. Obviously, the rule is not a fair one. The [268] servant may have got no damage. He may have, in fact, got better wages, and it is bad policy to encourage one to stay idle. We think the charge of the court, under the facts of the case, was right. Judgment affirmed.