MAGISTRATE'S COURT.

Wanganui Herald, Volume XXXXIV, Issue 12732, 30 March 1909, Page 7

MAGISTRATE'S COURT.

MASTER AND SERVANT. AEDERN v TUCKER.

At the Magistrate's Court this morning, Mr W. H. Kerr, S.M. gave judgment in the case of Ardern v Tucker, a claim for £2 15s, being £1 7s 6d for a week's wages and JJI 7s 6d in lieu of notice. The plea wa9 that plaintiff was dismissed for acts of wilful d : eobedienee. His Worship said it was given in evidence that plaintiff had been some months in defendant's employ as an assistant inu defendant's fish-sell-ing business at the weekly wage of =61 7s 6d, and that plaintiff had been paid up to Monday, 15th February. On Thursday, 18th, plaintiff gave defendant a week's notice terminating hie employment. On Saturday morning, 20th February, defendant called plaintiff at 6.50 a.m., wakened him un and told him he was wanted to take fish to the Rutland Hotel. Plaintiff re7'imed his sleep. He was again called at 6.55 a.m. and told to "come on as it was near 7 o'clock, and that the fish had to be at the Rutland by 7 .o'clock. Plaintiff aat up in bed and said "all right," but he again went to sleep. For the third timp defendant went to him (at 7.15 a.m.), and said, to rlaintiff — "Look here; one thing or the other. Deliver the fish or pack up your traps and go out." Plaintiff looked at defendant and said, "Go hon," and did not attempt to get out of bed. Witness Titshall in part corroborates these facte. As a consequence, defendant, the master, immediately took the fish himself and delivered them at the Rutland .Hotel, but too late for that morning's breakfast. PHirvtiff admits it wa<? hie duty to deliver fish to defendant's different customers in timp for breakfast; that the cook at the Rutland Hotel had previously eomnlained of Jolav in JcKvery of fist ; ' that he -wns called at least twice, and that he wns called to take the fish to the Rutland: and that aft*r being called at 7.15 a.m. he did not pet up immediately Defendant returned from the Rutland to his shop at about 7.25 a.m. and straightaway dismissed plaintiff and ordered him off the premises. Plaintiff thereupon left. Upon this evidence I find as a fact that plaintiff, Ardern, committed an act of wilful disobedience of hi« employer's •lawful commands. On the authority of cases (quoted) which have not been over-ruled. I therefore hold that upon the finding of fact the rlaintiff was rightfully discharged by the defendant. The onl^ question which I have now to consider is whether the plaintiqff is entitled to payment of wages from the last propei 4 pay day, which but for hi« act of misconduct had accrued due up to the mormnir of his dfsmiesal. I find it lni<i down in a leng aeries of decisions, that in Ruch a case, if the dismissal be in conseciiwiee of the servant's own misoojvfiict he will be entitled to no wa?es for this reason that his faithful service is a condition precedent to his right to them, and that condition has not been performed This may in some cases seem hard on a servant but it must not be forgotten that the master is generally put to some, perhaps "reat inconvenient, through a servant's misconduct for which the forfeited wasea w not alwayß an adequate compensation Judgmpnt will therefore be for the defendant, with costs. An application for leave to appeal was granted, security being fixed at £10 10s ment tO amount of costs of i«dgMr Treadwell a^ared f or plaintiff and Mr Hogg for defendant.