City of Gulfport v. Shepperd

• Decision Date: 14 January 1918
• Docket Number: 19817
• Citation: 116 Miss. 439,77 So. 193
• Court: Mississippi Supreme Court
• Parties: CITY OF GULFPORT v. SHEPPERD

77 So. 193

116 Miss. 439

CITY OF GULFPORT v. SHEPPERD

No. 19817

Supreme Court of Mississippi

January 14, 1918

Division A

APPEAL from the circuit court of Harrison county, HON. J. H NEVILLE, Judge.

Suit by Mrs. J. H. Shepperd against the City of Gulfport. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

J. L Heiss, for appellant.

The position assumed by us in the court below, and the one we shall assume and present now is that this case should never have been permitted to go to the jury, because, admitting the verity of everything testified to on behalf of the appellee she was not entitled as a matter of law to recover from this appellant.

All that these facts could show is that the appellant, the city of Gulfport, adopted an ordinance providing for the cleaning of cesspools, etc., and forbidding the work to be done by any other than the sanitary contractor of the city, or other authorized person, and fixing the price at which this work should be done. That this sanitary contractor was called on complaint of the appellee and performed the work for which he was paid by the landlord of the appellee; that in the performance of this work the sanitary contractor negligently failed to properly place the cover on the cesspool, by reason of which the appellee fell therein and was injured.

To maintain her right to action against the city, the appellee must stand upon two propositions of law, (1) that in performing the work complained of, the sanitary contractor was acting as the agent of the appellee and not an independent contractor; (2) that in addition thereto, the work was of such character that the principal of respondeat superior applies. We assert that neither of these propositions is true in this case, and it is upon this that we found the various assignments of error.

It is manifest that the entire questions turn around the question of the character of work being performed, and of prime importance is the ordinance under which the work was being done. We submit the following synopsis of the various sections of this ordinance which touch upon this case as follows:

Section 1, places the construction of cesspools under the supervision and approval of the city health officer.

Section 2, prescribes the size and manner of constructing cesspools.

Section 5, requires the cleaning of all cesspools to be done exclusively by the sanitary contractor of the city or by such person as may be designated and authorized by the mayor and board of aldermen; and provides a plan for the registering of calls for the sanitary contractor in a book kept for that purpose which is required to be examined daily by the sanitary contractor and sanitary inspector.

Section 6, fixes the charges that shall be paid by the owner or occupant of premises for the cleaning of cesspools, and the time and condition under which they must be cleaned.

Section 9, provides that the sanitary contractor or other authorized person doing the work shall have the right to demand payment for the cleaning at the time the work is done, and, should payment be refused, to clean the cesspool, and make affidavit of the premises being in the unsanitary condition.

Section 26, provides that the sanitary work provided for in the ordinance shall be done under the immediate direction of the city health officer.

Section 29, provides that the board shall, at stated times, receive bids and let out to the lowest and best bidder, for the term of one year, the exclusive privilege of cleaning and disinfecting cesspools, etc., with the right to reject all bids or to do the work by employees of the city.

Section 30, requires that the bids shall provide for the doing of the work at the prices fixed in the ordinance.

Section 35, provides that the sanitary contractor shall enter into bond in the sum of $ 500.

The first assignment of error is based upon the refusal of the court below to sustain the motion of appellant asking the evidence to be excluded from the jury and a peremptory instruction given, because no liability was shown to lie against the appellant for the following two reasons; (1) that the work complained of was that of an independent contractor and not that of an agent of the city; (2) because the acts of the city under the ordinance in question was in the performance of the governmental function of protecting the public health.

We submit this motion should have been sustained upon the two grounds named, which we desire to present in the order named. (1) The work was that of an independent contractor. McQuillin Municipal Ordinances, section 453; 2 Dillon, Municipal Corporations (5 Ed.), sec. 670, notes; California Reduction Co. v. Sanitary Reductions Works, 199 U.S. 300.

The case presented upon the authorities and principles laid down is simply this: The municipality has the right to direct how a cesspool shall be cleaned; by whom it shall be cleaned and the price that is to be paid for the cleaning. It therefore follows that the contract for the actual work is made between the owner or occupant of the premises and the man designated to do the work, and no act of negligence on the part of the sanitary contractor can give rise to a cause of action against the municipality.

The second ground upon which we submit that our first assignment of error is well taken, is that in any event, even though it should be considered that the sanitary contractor was at the time acting as an employee of the appellant, the doctrine of respondeat superior does not apply because of the class of the work engaged in. McQuillin, Municipal Corporations; sec. 2625; 6 McQuillin, Municipal Corporations, sec. 2630; 6 Thompson on Negligence, secs. 5826, 5786; 4 Dillon, Municipal Corporations, p. 2898, secs. 1656, 1660; Vol. 1, sec. 116, p. 199 and 200; 1 Abbott, Municipal Corporations, sec. 939; 1 Abbott, Municipal Corporations, sec. 967; 28 Cyc. p. 1340; 6 McQuillin, Municipal Corporations, sec. 2695. See full list of authorities cited thereunder, including Semple v. Vicksburg, 62; Miss. 63; Missane v. City of New York, 160 N.Y. 123, 54 N.E. 744; Haley v. Boston, 191 Mass. 291; Semple v. Mayor, etc., of Vicksburg, 62 Miss. 63; Alexander v. City of Vicksburg, 10 So. 62; Long v. Mayor, etc., of City of Birmingham, 49 So. 881.

We therefore most earnestly submit that error was committed in the court below, and that this court should reverse the judgment rendered herein and enter judgment here for the appellant.

Mize & Mize and J. W. Morse, Jr., for appellee.

As to the first contention of appellant, that the sanitary contractor was an independent contractor, we think that a reading of the ordinance will set this contention at rest.

In short, he was entirely and absolutely under the direction of the city in the performance of his work, by the provisions of this ordinance, which ordinance, as above stated, compelled all occupants and owners of premises to employ this particular man to do this work. He was, in fact, an officer of the city, charged with certain duties to be done in the manner fixed by the ordinance under the supervision of the city health officer, for which duties he was to collect from the owner or occupant certain fees fixed by the ordinance.

An independent contractor is well defined as one, who, in rendering service, represents the will of the employer only as to results, and not as to the means of doing the work, the test being whether the employer reserved control over him as to the manner of doing the work. Kipp v. Oyster, 114 S.W. 538, 133 Mo. 711; Green v. Soule, 78 P. 337, 145 Cal. 96; Moore-Savage Co. v. Kopplin, 135 S.W. 1033.

So we submit that there is no merit in the contention of appellant that the sanitary inspector was an independent contractor. As to appellant's contention that the work was a governmental function for which the city is not liable, we submit the case of Mary Semple v. Vicksburg, 62 Miss. 63.

In conclusion in favor of our contention, holding that a city is liable for the acts of its workmen in constructing gutters, sewers, etc., where the acts are purely ministerial, involving the exercise of no governmental powers or judicial functions. This is clearly stated in 4 Dillon on Corporations (5 Ed.), sec 1739, et seq.; p. 3047, et seq.; 3 Abbott on Municipal Corporations, sec. 959, p. 2229; Fernandez v. City of Pass Christian, 100 Miss. 76.

In the case at bar, we submit, a large stretch of the imagination indeed is required to discern a governmental function in the work done by a negro under the direction of a city sanitary inspector in cleaning a cesspool.

As laid down in the authorities supra, we submit that the city sanitary inspector in doing this work was simply performing a ministerial duty on behalf of the city in maintaining reasonably safe and sanitary condition of a cesspool in execution of a plan adopted and put into effect under the aforesaid ordinance of said city. Cyc., lays down the same proposition as to the construction, maintenance and repair of sewers, etc., in Vol. 28, 1315, paragraph 3.

Counsel for appellant cites Haley v. Boston, 191 Mass. 291, which is also found in 5 K. R. A. (N. S.) p. 1005, but our court, in the cases, supra, declined to follow that line of decisions, and in that case the court said that liability for negligence in the construction or maintenance of sewerage comes under this doctrine, to wit: the city is liable, and cites. Manning v. Springfield, 184 Mass. 245, 68 N.E. 202.

The case was submitted to the jury on instruction putting the issue squarely to it, as to whether or not the jury believed it was negligently left open and whether or not plaintiff was injured thereby, and, on this conflict of...