The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-01-05


for plaintiff, a man might contract for one
yeare service upon an agreement IN iorm
similar to the one we are considering. aud be
III eleven and half months But it would be
a case of greater hardship to the laborer. if,
after such long illness, he would have TO
work an additional year after his contract had
expired. So also Sundays and holidays rec
ognized by the Government, upon which days
the laborer is specially exempted from labor
and consequently for which he receives no
wages, are not TO be taken account OF and adj
ded TO the term OF three years, and afterwards
discharged in labor. If this could be done the
privilege Of not working on those special days
would amount TO nothing to the laborer, and
so far as he was concerned, it would be value
less to have this exemption mentioned in the
contract, for Sundays and Government holl-
days stand in this contract, on the same foot
ing, and if the laborer can he required 10 make
up the days Of labor lost to the employer by
Sundays and holidays, it would he no privilege
to the laborer.
This leads US to the last point TO be consid-
cred, namely the penal remedies which the err
ployer has under our laws, against the laborer.
By the labor laws as they now exist, Sec. 1919
Compiled Laws, if the person bound 10 service,
wilfully absents himself from such service,
without leave from his master. he may be ap-
pretended by the warrant of police or dis
trict justice, and restored to his master and
compelled to serve the remainder of the time
for which he originally contracted. By the
original law (ls59) the laborer could be CON-
PEELED to serve not to exceed double the time
Of his absence. The Act of 1882 only author
ICES a sentence to make up the time lost by
the absence of the laborer. By Sec. 1920. If
the person bound TO service refuses to serve
when ordered by the magistrate TO do so, or
refuses to work according to his contract, he
may be committed to prison TO remain at hard
labor until he consents to serve according to
law. II he, after having returned TO service
pursuant TO a magistrates order, again will
fully absents himself without leave, hc lie
liable to a fine not 10 exceed So for the first
offence, and not to exceed $40 for every sub
sequent offence. A wilful absence we suppose
is one without sufficient legal excuse. Now,
if the laborer is unable from illness 10 present
himself for work, or if though present at the
place Of labor, lie is from illness, unable TO
work, he is not derelici, his absence frpm
work is not willful, aud he cannot be cOm-
PEELED to make up the time OF absence 10 his
master. If the weather be such that il would
be detrimental 10 the health of the laborer to
work out Of doors, or so that il would not be
profitable TO the master to proceed with out
door work, his absence from work would not
be willful, and though he receives no pay for
the days thus lost, he cannot be compelled by
the judgment Of magistrate TO make up this
time.
But the case is put to us Of willful absence
from work without leave Of the master, for
which no arrest is made aud no adjudication
of magistrate obtained, but the servant
agrees that his absence was without legal ex-
cuse and the lumber of days so lost in each
month is regularly entered up at the end of
each month and agreed orally by the servent
as correct. The agreement TO make up this
lost time is implied, We presume, from the
laborer's assent that the number OF days lost
is correct in number. Can this agreement be
enforced? We think not. 1t is a new agree
mcnt. 1t is not in writing and does not con-
form 10 the statute in other respects BY
virtue of this now oral agreement TO make up
lost time the servant is not compellable by the
magistrate to serve. The written contract be-
fore us does not contain such a stipulation.
His liability TO service must flow, if at all.
from the original contract We are of the
opinion that il laborer who has absented
himself from work wilfully and without leave,
returns again to his masters service aud no
notice is taken of it aud the master does not
obtain an adjudication tina; the absence was
without legal excuse aud a sentence that the
lost time must be worked out, he cannot after
the contract has expired, compel the laborer
TO work out such arrears. The master must
be considered in law as having waived the
absences
1t becomes necessary to review former deci-
siOns Of this Court which are cited by plain
lifts counsel as decisive of this case. These
are Wood VS.. HOOKING 3 Hawn. l02 (s69. }
Wood VS.. Apo, 3 Hawn. AS Qs73.) In the
first case the master claimed that Judgment
10 the effect that the servant should work
eight months penal time was not satisfied by
the servant continuing in his masters service
for eight months, he having worked only lis
days during this period aud not the full score
Of POS days. But the case was decided against
the master on the ground that he had OH his
part failed TO fulfill the contract as to payment
of wages. Remarks of the majority Of the
Court that the judgment was not illegal though
it imposed term Of service beyond one year
after the end of the original term of service,
were not necessary 10 the decision of the case
and must be treated as oJiter dieto.
The second case. Here the servant had
contracted to serve five years, but when about
half OF the time had expired, he was sentenced
CIltnc W NC AZ ldDOI IOI
FIVE years. This sentence be had served and
his master claimed his services for the re-
mainder of the original term Of the contract
under the law as it then stood which authoriz-
ed magistrate, if the person bound 10 service
had wilfully absented himself from such
service, 10 impose an additional term Of labor
not exceeding double the time OF absence, but
such additional term of service shall not ex-
tend beyond one year after the original term
Of service. The majority of the Court held
that the lapse of time during the imprison-
ment was not bar TO the penal enforcement
Of the contract if it result from the servants
own act. Much of the reasoning of the ma
jority of the Court is against the view taken
by us in the case before us. But that case
was upon the construction of statute now re-
pealed the latter part of Sec. 1919 Of the Civil
Code, which authorized the imposing of an
additional term of service in case the original
term had not been fulfilled by the servant
That question does not arise in the case be-
fore us. Here We are TO construe the con-
| tract itself, not the statute which is invoked
in its aid.
The Judgment OF the lower Court ordering
the defendant back TO plaintiffs service is re-
versod and judgment is now ordered for the
defendant
FIN. Hatch for plaintiff; P. Neumann fol
defendant
Honolulu, December oath, 1885.