106-NLR-NLR-V-42-SAMUEL-APPUHAMY-v.-DEONIS.pdf
MOSELEY S.P.J.—Samuel Appuhamy v. Deonis.
419
1941Present: Moseley S.P.J.
SAMUEL APPUHAMY v, DEONIS.
210—C. R. Colombo, 55,824.
Domestic servant—Assistant bar-keeper at a club—Civil Procedure Code, s. 218 (j).
An assistant bar-keeper employed at a club is a domestic servantwithin the meaning of section 218 (j) of the Civil Procedure Code.^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
L. A. Rajapakse (with him C. J. Ranatunga), for plaintiff, appellant.
No appearance for defendant, despondent.
Our. adv. vult.
June 6, 1941. Moseley S.P.J.—
The point for decision is whether the defendant-respondent, who hasdescribed himself as an assistant bar-keeper at the Colombo Garden Club,is a domestic servant within the meaning of paragraph (j) of section 218of the Civil Procedure Code. If the answer is in the affirmative his wagesare protected from seizure under a writ of execution. The learnedCommissioner of Requests so answered the question, holding that thefact that the respondent was employed in a club and not in a privatebungalow does not affect the question.
The section has its counterpart in section 60 of the Indian Civil Pro-cedure Code. In neither enactment is the expression “ domestic servant ”defined, and no local or Indian authority bearing on the point has beenbrought to my notice. Counsel for the appellant, however, cited the caseof Pearce v. Lansdowne 1 in which the point for decision was whether apotman employed in a public house was a “ domestic or menial servant ”so as to exclude him from the definition of “ workman ” within the scopeand meaning of the Employers’ Liability Act, 1880. Since the objectsunderlying the legislation relevant to that case and this particularprovision of the Civil Procedure Code are different, it seems to me thatcare must be exercised not to draw an injustified comparison betweenthat case and the present one. It clearly emerges, however, from aconsideration of that case that the question is one of fact. Collins J. inhis judgment, agreeing that the potman was a domestic or menial servant,observed that “ the/ question must vary with the facts of each particularcase ”. He quoted an excerpt from Roberts and Wallace’s Book onEmployers’ Liability, at page 214„ namely, that menial servant (and nodistinction was drawn between “menial” and “domestic”) denotes“ those persons whose main duty is to do actual bodily work as servantsfor the personal comfort, convenience, or luxury of the master, his familyor guests, and who for this purpose becomes part of the master’s residentialor quasi-residential establishment ”.
The case of Savoy Hotel Company v. London County Council’, is alsohardly in point, the question being whether a page-boy in the hotel waswithin She exemption in section 10 of the Shop Hours Act, 1892, in favourof “ any person wholly employed as a domestic servant ”. The finding of
1 69 L. T. 316.
* / O.B. 665.
420
KEUNEMAN J.—Bultjens v. Hendrick Appu.
the lower Court that he was not wholly employed as such was affirmed byChannell J. in these words : —“ The learned Magistrate found that he wasnot; I think that there was evidence on which he could so find, and thathis decision cannot be disturbed In each of the cases cited it will beseen that the question was treated purely as a question of fact.
In the present case it seems to me that there is evidence upon whichthe learned Commissioner of Requests could find, as he did, that therespondent is a domestic servant within the meaning of paragraph (j) ofsection 218. Being employed in a club, and not in a private bungalowonly affects the question to the extent that he is the servant of manymasters instead of being the servant of one.
I would dismiss the appeal with costs, if any have been incurred by thedefendant, respondent.
Appeal dismissed.