Montain v. City of Fargo

166 N.W. 416, 38 N.D. 432, 1917 N.D. LEXIS 64

• Court: North Dakota Supreme Court
• Decided: November 1, 1917
• Status: Published

Opinions

Bruce, Ch. J.

(after stating the facts as above). Two propositions are advanced in support of the demurrer to the complaint:

(1) That the garbage collector was an independent contractor, and, being such, the city was not liable for his negligence.

(2) That’ even if tbe said collector was not an independent contractor, the city was acting in a public and governmental capacity and was therefore not liable.

And, first, Was the said Neis Johnson an independent contractor? Is or is not the appellant correct in his contention that “one who performs services for a city in the matter of removing garbage under a written contract which contains a provision that he is 'to furnish said teams and men or such number thereof as in the judgment of said city may be necessary for the delivery and disposal of said garbage,’ and which contains this further provision, viz.: 'The entire work to be done in a good and substantial manner with the approval and acceptance of the city, and under the supervision and direction of the commissioner of health, or such agent or agents as he may appoint for that purpose; such teams and equipment to be acceptable and satisfactory to said health commissioner,’ is a servant of the city, and not an independent contractor.”

We are satisfied that the said Neis Johnson was an independent contractor, and not a servant of the defendant city.

According to § 6134 of the Compiled Laws of 1913, “a servant is one who is employed to render personal service to his employer, otherwise than in pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master.”

This definition of a servant, where it is sought to distinguish between a servant and an independent contractor, affords by inference a definition of an independent contractor, an independent contractor being considered a person employed to execute work, who is not within the definition of a servant.

The question whether the employee is an independent contractor,, says the supreme court of Kentucky, may be determined by answering the following questions: Who has the general control of the work? Who has the right to direct what shall be done, who shall do it, and how it shall be done ? See Mason & H. Co. v. Highland, — Ky. —, 116 S. W. 322; Madisonville, H. & E. R Co. v. Owen, 141 Ky. 1, 5, 143 S. W. 421.

“An 'independent contractor’ is one who is independent of his employer in the doing of his work, and may work when and how he prefers. A ‘servant’ is one who is employed by another and is subject to the control of his employer.” Messmer v. Bell & C. Co. 133 Ky. 19, 25, 117 S. W. 346, 19 Ann. Cas. 1.

“The right to control the conduct of another implies the power to> discharge him from the service or employment for disobedience; and, accordingly, the power to discharge has been regarded as the test by which to determine whether the relation of master and servant exists.”' 1 Thomp. Neg. §§ 579, 629.

“The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished; or, in other words, ‘not. only what shall be done, but how it shall be done.’ ” Singer Mfg. Co. v. Rahn, 132 U. S. 518, 33 L. ed. 440, 10 Sup. Ct. Rep. 175; Huffcut, Agency 9; Taute v. J. I. Case Threshing Mach. Co. 25 N. D. 102, 141 N. W. 134, 4 N. C. C. A. 365; notes in 65 L.R.A. 445 and 17 L.R.A.(N.S.) 371.

“The test is very much this; viz., whether the person charged is under the control and bound to obey the orders of another.” Reg. v. Negus, L. R. 2 C. C. 37, 42 L. J. Mag. Cas. N. S. 62, 28 L. T. N. S. 646, 21 Week. Rep. 687, 12 Cox, C. C. 492, 1 Am. Crim. Rep. 150.

There can be no doubt that under these general tests the relation of master and servant did not exist; and the mere fact that the contract states that the collector was “to furnish said teams and men or such number thereof as in the judgment of the health commissioner of said city may he necessary for the delivery and disposal of garbage;” and that the contract further provides that the work shall be done “under the provision of the ordinance known as the ‘garbage ordinance’ to the full satisfaction and acceptance of the city,' — and under the supervision and direction of the commissioner of health, — and that such teams and equipment and men shall be acceptable and satisfactory to said health commissioner,” does not change the situation.

It is true that the men and the teams and the work were required to be satisfactory to the health commissioner, but this was for the purpose of the public health, and the health commissioner would have had a voice in the matter even though the contract and ordinance under which it was let had not so provided.

The health commissioner had no power to discharge men; he had no power to say how hard they should work; he had no power to say what their wages should be; nor did the contract itself dictate in these matters.

His supervision was for the protection of the public health and for that purpose alone.

The city health officer or commissioner, indeed, exercises a public, and not a private or municipal, function. His office is provided for by the statutes, and in cities which, like Fargo, are under the commission form of government, he has all the power and authority which are conferred by the general statutes upon city boards of health. He represents the state and the city in their governmental, and not in their corporate or property owning, capacities. He would have possessed the powers given to him by the contract even if the instrument had been silent upon the subject. See §§ 3820 and 411 to 433, Compiled Laws of 1913.

We are also satisfied that, in disposing of its garbage and in letting the contract in question, the city of Fargo was acting in its governmental, and not in its private or corporate, capacity.

There is only one purpose for our municipalities entering so largely into this work as they do to-day, and that is the preservation of the public health; and in every enlightened land this aid and protection always has been and always will be considered a primary duty which devolves upon the state in its sovereign power. Savannah v. Jordon, 142 Ga. 409, L.R.A.1915C, 741, 83 S. E. 109, Ann. Cas. 1916C, 240 and note 243; Love v. Atlanta, 95 Ga. 129, 21 Am. St. Rep. 64, 22 S. E. 29; Watson v. Atlanta, 136 Ga. 370, 71 S. E. 664; Haley v. Boston, 191 Mass. 291, 5 L.R.A.(N.S.) 1005, 77 N. E. 888; Re Vandine, 6 Pick. 187, 17 Am. Dec. 351; Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; see also Nicholson v. Detroit, 129 Mich. 246, 56 L.R.A. 601, 88 N. W. 695; Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Bolster v. Lawrence, 225 Mass. 387, L.R.A.1917B, 1285, 114 N. E. 722.

If, indeed, as has generally been held, the protection of the lives and property of its citizens from loss by fire is a governmental function, and to such an extent that the city is not liable for the negligence of its firemen either in putting out or failing to put out a fire, or for accidents while the engines and carts are going to and from fires, or of its servants in removing ashes and inflammable material, how much less should the city be held liable for acts done in seeking to protect its citizens from dangers which are much more insidious and extensive ? See 28 Cyc. 1303; State v. Howard, 72 Me. 459; Re Vandine, 6 Pick. 187, 17 Am. Dec. 351; Condict v. Jersey City, 46 N. J. L. 157; Gillespie v. Lincoln, 35 Neb. 34, 16 L.R.A. 352, 52 N. W. 811; Kies v. Erie, 135 Pa. 144, 20 Am. St. Rep. 867, 19 Atl. 942.

We realize that there are some decisions of the courts of New York and Colorado which seem to hold to a contrary view than that expressed by us, but we are not persuaded thereby.

The judgment of the District Court is affirmed.