77 So. 193 | Miss. | 1917
delivered the opinion of the court.
The negligence alleged in the declaration and proven to the satisfaction of the jury consisted in the failure of one Currie to properly fasten the top on a cesspool cleaned out by him on premises rented by the appellee. The night the cesspool was cleaned out, the appellee, in returning to her home, stepped on the top of the cesspool, which gave way or tilted with her because of its being improperly placed thereon, thereby, causing appellee to fall into the cesspool and sustain certain personal injuries. There was ample evidence to sustain the verdict of the jury as to the negligence of the party who did the work. The defense presented to this court, and upon which the appellant city relies, is that it is not liable: First, because Currie, the party who did the work, designated as the city sanitary contractor,- was not an employee of the city in the doing of this work, but was an independent contractor, for whose negligence the city is not responsible; second, that even if the said Currie was an employee of the city, thé city is not responsible in this case, because the city under its police powers, which it exercises as a part of its sovereignty, was having this work dpne, and this character of work falls under the govermental powers of the city, and it is not responsible for the negligence of its agents or officers in the performance of any duties which fall under, or belong to, the police power.
At the-time of the accident in question the city of Gulf-port was operating under the municipal chapter of the Code of 1906. It had duly and legally adopted an ordinance providing for the keeping of the city of Gulfport in proper sanitary condition. Among other sections of this ordinance was a provision providing for the clean
Under the above ordinance the contract for the period in question here for doing the sanitary work was let to one Dave Currie. The cesspool was cleaned by a negro hired by Currie to do the work. Currie testified that after the work was done he inspected the same, and it was all right. His testimony, however, was contradicted by that of the plaintiff, and the jury settled the fact adversely to the contention of Currie and decided that the work was improperly or negligently performed.
From an examination of the authorities in this state and elsewhere it is manifest that the city under its police powers, as a part of its governmental duties, had the right to and did adopt the ordinances relating to the cleaning of cesspools, the removing of garbage, trash, etc. It also had the right as one of its governmental functions to adopt the ordinance requiring that this work he done exclusively by any party designated to do it by the city. In the case before us it could only be done by the city sanitary contractor. In the regulation of the public health this ordinaee was properly adopted. In the cleaning of cesspools on private property the city received no remuneration for that work whatever. In the protection of its citizens it fixed the price to be paid for this character of work and that the contractor could charge no more. This was an ordinance adopted solely for the benefit of the citizens, for which the city in no way received any remuneration. As was said in the case of California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204:
*448 “It is the duty, primarily, of a person on whose premises are garbage and refuse material to see to it, by proper diligence, that no nuisance arises therefrom which endangers the public health. The householder may be compelled to submit even to an inspection of his premises, at his own expense, and forbidden to keep them, or allow them to be kept, in such condition as to create disease. He 'may, therefore, have been required, at his own expense, to make, from time to time, such disposition of obnoxious substances originating on premises occupied by him as would be necessary in order to guard the public health.”
In the absence of the above ordinance, it would have been the duty of the owner or occupant of the premises to have cleaned the cesspool and .kept it in a sanitary condition. For the benefit of the householders and of the public generally this ordinance was passed not only requiring the cleaning of the cesspool, but fixing the price to be paid to the contractor by the householder for the doing of the work. The fixing of the price was a protection to the householder to prevent the contractor from fixing any arbitrary price he might elect. The adoption of this ordinance and the selection of the sanitary contractor were purely governmental powers exercised by the city under its police powers. McQuillin on Municipal Ordinances, section 453; Dillon on Municipal Corporations (5 Ed.), vol. 2, section 670 The distinction is recognized in, the authorities in Mississippi and by all of the leading text-books between the exercise by a municipality of governmental or public functions and private powers; that in the exercise of governmental powers the city is clothed with a sovereignty, and is not responsible in damages therefor, but that is the exercise of private powers the doctrine of respondeat superior applies to. it as to other masters.
For a discussion of this question, see McQuillin on Municipal Corporations, sections 2625 and 2630; Thompson on Negligence, vol. 6, sections 5826, 5786; Dillon on
There is no contention in this record that the city, in letting the contract to Currie, was negligent in any manner, or that it selected an improper party to do the work. The contention of the appellee is that Currie was an employee of the city, and for that reason that the city is liable. To sustain his contention the able counsel for appellant cites the cases of Mary Semple v. Vicksburg, 62 Miss. 63, 52 Am. St. Rep. 181, Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649, and certain text-books and cases from other states. The cases in Mississippi relied upon by appellant are cases where the work of taking care of streets or removing garbage from streets was being-done by an employee under the control and in the pay of the municipality. It was work which primarily rested upon the city to do, and in the actual doing of the work in those cases the employee was not exercising any governmental powers, but was merely performing a ministerial act, in the Semple Case stopping up inlets into a drain of a street, and in the Fernandez Case removing garbage in a city wagon from the street.
In the cleaning of the cesspool of the appellee the remuneration was to go solely to the contractor. The city,' further than to see that his work was properly done, in no way attempted to supervise the details of the doing of the work. These details were left altogether to the party doing the work. The ordinance in effect only gives an exclusive privilege or license to the city sanitary contractor to do this character of work for the householders. He must do it in a proper manner as regards especially the general results, viz., it must be done in a sanitary way, but the actual details of how he performs the work are not in any way attempted to be interfered with or supervised by the city. In this case he was an independent contractor doing-
The judgment of the lower court is reversed and judgment will be entered here in favor of the city.
Reversed, and judgment here.
