Montain v. City of Fargo

• Decision Date: 27 November 1917
• Citation: 166 N.W. 416,38 N.D. 432
• Parties: MONTAIN v. CITY OF FARGO.
• Court: North Dakota Supreme Court

38 N.D. 432

166 N.W. 416

MONTAIN

v.CITY OF FARGO.

Supreme Court of North Dakota.

Nov. 1, 1917.

Rehearing Denied Nov. 27, 1917.

Syllabus by the Court.

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 teams and men or such number thereof as in the judgment of said city may be necessary, and that the entire work is 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, and that his teams and equipment shall be acceptable and satisfactory to said health commissioner, is held to be an independent contractor, and not a servant of said city.

A city health commissioner while supervising the removal of garbage, and a city commissioner while authorizing and providing for its removal, are held to have been acting in a public and governmental, and not in a private or corporate, capacity.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Mary Montain against the City of Fargo. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

This is an appeal from an order sustaining a demurrer to a complaint which, in substance, alleged that the plaintiff's intestate, one Mons Montain, met his death by being struck by a runaway team drawing a garbage sled, which sled was being used for the purposes and under the conditions intended and detailed in a certain written agreement between the city of Fargo and one Nelson Johnson for the collection and disposal of kitchen garbage, and which contained the following provisions:

“Whereas, said Nels Johnson, did agree, in writing to furnish four teams and eight men or any number of said teams, at the rate of $147.00 per month for each team, and two men to haul said garbage, during the said year 1915, at the said prices set out in said bid, now therefore, the said party of the second part covenants and agrees to furnish to said city, at his own cost and expense, not to exceed four teams, fully equipped and eight men or any number of said teams and men at the rate of $147.00 per month for each team and two men to perform the work necessary under the provisions of the ordinance commonly known as the garbage ordinance, to the full satisfaction and acceptance of the said city, and to perform not less than ten hours work each day. 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 of such agent or agents as he may appoint for that purpose. Such teams and equipment and men to be acceptable and satisfactory to said health commissioner. The said city reserving the right to cancel this agreement upon ten days' notice if the said second party fails to comply in all respects with the terms and conditions of this contract, and the provisions of the ordinance heretofore referred to.”

Grace, J., dissenting.Pfeffer & Pfeffer, of Fargo, for appellant. Spalding & Shure, of Fargo, for respondent.

BRUCE, C. 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 the said collector was not an independent contractor, the city was acting in a public and governmental capacity and was therefore not liable.

[1] And, first, was the said Nels 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 Nels Johnson was an independent contractor and not a servant of the defendant city. According to section 6134 of the Compiled Laws of 1913:

“A servant is one who is employed to render personal service to his employer, otherwise than in the 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 employé 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 & Hodge Co. v. Highland, 116 S. W. 322;Madisonville & E. R. R. Co. v. Owen, 147 Ky. 1, 5, 143 S. W. 421, 423. “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 & Coggeswell Co., 133 Ky. 19, 25, 117 S. W. 346, 348 (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.” Thompson on Negligence, §§ 579, 629. “The relation of master and servant exists whenever the right to decide 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 Manufacturing Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440; Huffcut's Case on Agency, 9; Taute v. J. I. Case Threshing Machine Co., 25 N. D. 102, 141 N. W. 134, note to 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.

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 stated 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 be 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.

[2] 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 sections 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. Mayor v. Jordan, 142 Ga. 409, 83 S. E. 109, L. R. A. 1915C, 741, Ann. Cas. 1916C, 240, and note 243;Love v. Atlanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64;Watson v. Atlanta, 136 Ga. 370, 71 S. E. 664;Haley v. City of Boston, 191 Mass. 291, 77 N. E. 888, 5 L. R. A. (N. S.) 1005;In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351;Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. 1030. See, also, Nicholson v. City of Detroit, 129 Mich. 246, 88 N. W. 695, 56 L. R. A. 601;Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499;Bolster v. City of Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285.

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