City of Laurel v. Ingram
| Decision Date | 12 December 1927 |
| Docket Number | 26731 |
| Court | Mississippi Supreme Court |
| Parties | CITY OF LAUREL v. INGRAM. [*] |
1. MUNICIPAL CORPORATIONS. Scavenger held "independent contractor," and city not liable for dumping garbage on land.
Where city employed city scavenger to remove and dispose of garbage and fixed charges to be paid for his services by property owners and by city, but retained no other control over him, place of dumping garbage being left to him he was an "independent contractor," and city was not liable for damages for his dumping garbage on plaintiff's land.
2. MUNICIPAL CORPORATIONS. Knowledge of authorities that scavenger, independent contractor, was trespassing did not make city liable. Knowledge on part of city authorities that city scavenger, an independent contractor, was trespassing on plaintiff's property by dumping garbage thereon, did not make city liable.
3. MUNICIPAL CORPORATIONS. That mayor undertook to stop trespassing by scavenger, independent contractor, did not make city liable.
That mayor undertook to stop trespassing by city scavenger, an independent contractor, on plaintiff's land, by dumping garbage thereon, when plaintiff made complaint to mayor, did not make city liable for damages, since mayor could not bind city in that manner; he having no right to direct scavenger where to dump garbage.
Suggestion of Error Overruled Jan. 9, 1928.
APPEAL from circuit court of Jones county, Second district.
Action by D. S. Ingram against the city of Laurel. From a judgment for plaintiff, defendant appeals. Reversed and judgment rendered.
Judgment reversed.
W. S. Welch, Ellis B. Cooper, Roy P. Noble and Jas. T. Welch, for appellant.
Appellant requested and was refused the following instruction: "The court instructs the jury to find for the defendant." The refusal was error. The act complained of, the trespass, was not that of the city of Laurel but was the trespass of George Lane who was an independent contractor. The court will observe that this fact was specially pleaded. Notice under the general issue was given and no matter in confession and avoidance or in any other way was pleaded by appellee.
Appellant contracts for a scavenger for the protection of the health and for the convenience of the people. The prices were fixed by the contract so that the people would not be overcharged for this service. The property owners themselves pay for this service.
It is very true that this witness says when he finds something owned by nobody he moves it and the city pays him for it. It is true he hauls for the city. But when he works for the city he is paid just as the individual pays him.
Under the holding of this court in Gulfport v. Shepperd, 116 Miss. 439, 77 So. 192, the negro, George Lane, was an independent contractor and, conceding for argument's sake that his actions were improper and wrongful, the appellant is not liable for his conduct. The court not only refused the peremptory instruction on this ground but it refused the submission of this question to the jury.
Collins & Collins, for appellee.
Appellee's declaration is in two counts, the first claiming damages for the dumping of the garbage on the land of appellee by the said city of Laurel, and the second count claiming damage for the city of Laurel appropriating his property to public use without compensation.
The testimony shows that the city of Laurel employed a negro named George Lane several years ago, not only to take the garbage for private owners at a price fixed by the city, but to haul the garbage from the city property for which the city paid him and to pick up dead animals, the owners of which could not be found, and other filth and garbage in the city of Laurel, and carry it to the dumping ground. The testimony shows that George Lane was working for the city all this time and was receiving pay from the city for his work. It further shows that he worked for individuals and received pay also from them. The city of Laurel, through its mayor, exercised control over the said George Lane as to the place at which he dumped the garbage and the city of Laurel has assumed the responsibility for taking care of said garbage.
The mayor and commissioners of the city of Laurel knew all the time that this negro, George Lane, was carrying this garbage to this dumping ground. Three things we see then established: First, that the city of Laurel employed George Lane to carry off its garbage and everybody else's garbage; second, that the city of Laurel fixed the prices and controlled George Lane with reference to cleaning up the city of Laurel; third, that the city of Laurel knew that it was placing its garbage upon Ingram's land, and that without his consent.
It was amply shown, by the testimony, that the land was covered with all kinds of garbage, junk, dead animals, and other kinds of filth. The jury were carried to the land and there viewed the situation themselves. The city knew that he was using Ingram's land for this purpose and yet they continued George Lane in their employ all of this time. They ratified and adopted his acts.
When the city of Laurel assumed the responsibility of making this disposition of the garbage of the city, they also assumed the further duty and obligation of providing a place for such garbage and seeing to it that the garbage was placed thereon. 19 R. C. L. 1140.
The city has done work or assumed to do work that has caused an injury and which they knew could not be done without causing an injury to someone. In this case they happened to know just how the work was being done and they happened to know who was being damaged.
In the Shepperd case, 116 Miss. 439, 77 So. 192, there was no contention that Currie performed any duty for the city out of which any damage grew, while in this case, the testimony amply shows that George Lane was continuously working for the city under the direct control of the city authorities with reference to the place upon which he dumped the garbage, and otherwise.
This suit is not based alone upon the proposition of respondeat superior. But it is further based upon the theory that private property may not be taken for public use without just compensation. And further that the city is guilty of maintaining a nuisance on appellee's land.
In Stephenville v. Bowen, 29 Tex. Civ. App. 384, 68 S.W. 833, it was held that a municipality was liable for the act of a city scavenger in repeatedly depositing refuse on a lot adjoining that of the plaintiffs, to the damage of the plaintiffs, instead of on a dumping ground provided by the city beyond the corporate limits. In San Antonio v. Macjey, 14 Tex. Civ. App. 210, 36 S.W. 760, on rehearing in 22 Tex. the city was held liable for the dumping of refuse on the plaintiff's land, although the act may not have amounted to a nuisance.
In Flannagan v. Bloomington, 156 Ill.App. 162, it was held that a municipality was liable for the act of a cartman in its employ in dumping garbage and refuse on a lot within the city limits, to the damage of the plaintiff.
Under section 5834, Hemingway's Code, section 3337, Code of 1906, a city has the authority to exercise eminent domain rights in taking property for such uses as the one under consideration.
Section 5835, Hemingway's Code, gives a municipality general authority to maintain sewers, open up and lay out same, and section 5816, Hemingway's Code, section 3391, Code of 1906, gives the city the power to compel and regulate the removal of garbage and filth beyond the corporate limits and to prevent, remove, and abate nuisances and other "cognate matter."
Since the city has this authority and since it has assumed the responsibility of regulating this matter, it is liable as for the maintenance of a nuisance. People v. Albany, 11 Wend. 539, 27 Am. Dec. 95; State v. Shelbyville, 4 Sneed 176; Franklin Wharf Co. v. Portland, 67 Maine, 462, 4 Am. Rep. 1; Kiley v. City of Kansas, 69 Mo. 102, 33 Am. Rep. 491; Paiker v. Macon, 39 Ga. 735; Mooty v. Danbury, 45 Conn. 550; Brown v. Mayor of New York, 3 Barb. 254; Hunt v. Mayor of Albany, 9 Wend. 571; and if it permits a public nuisance to exist on property. St. John v. Mayor, 3 Bosw. 263; Harper v. Milwaukee, 30 Wis. 365; Cohen v. Mayor of New York, 113 N.Y. 532, 10 Am. St. Rep. 506; Stanley v. Davenport, 54 Iowa 463; McDonald v. Newark, 43 N.J.Eq. 142.
Appellee sued appellant for damages alleged to have been done his land by appellant having used it as a dumping ground for its city garbage, and recovered a judgment in the sum of eight hundred fifty dollars, from which judgment appellant prosecutes this appeal.
Appellant contends that the court erred in refusing to direct a verdict in its favor. We think the material facts in the case are...
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