72 Miss. 166 | Miss. | 1894
delivered the opinion of the court.
This is an action brought by Ott against Crisler to recover damages for injury to land by cutting trees growing thereon.. The declaration contains two counts: The first is for the statutory penalty for the wilful or negligent cutting; the second for the value of the trees cut and taken away. A general verdict was rendered for the plaintiff, but from its amount it is evident that it rests upon the first count in the declaration.
It does not appear that it was contended on the trial that some trespass was not committed on the plaintiff’s land. The defenses principally relied on were that the trespass was non-
The testimony is conflicting, but the verdict of the jury must be accepted as determining, in favor of the plaintiff, all questions of merely conflicting evidence. It is not denied by the defendant that, after the trees had been converted into staves, but before they were removed, it was known to Halbert that a large part of them had been cut on the plaintiff’s land, but he, nevertheless, and against the protest of the plaintiff, took away the staves, and delivered them to the defendant.
The assignment of errors is broad enough to bring in review the action of the court in giving the instructions for the plaintiff, and in refusing certain instructions and modifying others asked by the defendant. In their brief, however, counsel for appellant do not comment upon the action of the court on the instructions, but devote themselves solely to the proposition that the supposed trespass was committed, if at all, by Halbert, who was an independent contractor and not the servant of appellant, and for his acts appellant was not bound. If the law were as counsel contend it is, that the employer is not responsible for the acts of an independent contractor, the judgment of the lower court could not be affirmed, for the court was asked by the defendant to give the folloAving instruction, which it refused, viz.: “If the jury believe from the evidence that defendant, before any trees had been cut on the land claimed by the plaintiff, made a contract with Halbert whereby Halbert agreed to pay Crisler for the timber rights purchased by him from Brown, and to furnish the material and to pay all the expenses and deliver to Crisler spokes for $6.50 per thousand,
In Lawrence v. Shipman, 39 Conn., 586, Seymour, J., laid down the following rules as applicable: “1. If a contractor faithfully performs his contract, and a third person is injured by the contractor in the course of its due perfbrmance, or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury; but, for the negligence of the contractor not done under the contract, but in violation of it, the employer is, in general, not liable. 2. If 1 employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, on the same principle as in the last case, for I cause acts to be done which naturally expose others to injury. 3. If I employ as contractor a person incompetent or untrustworthy, I may be liable for injuries done to third persons by his carelessness in the execution of his contract. 4. The employer may be guilty of personal neglect, connecting itself with the negligence of the contractor in such manner as to render both liable. Cooley on Torts, 548; Tibbetts v. Railroad Co., 62 Me., 437; Gorham v. Gross, 125 Mass., 232; Water Co. v. Ware, 16 Wall., 566.”
The testimony of the defendant and of Halbert, the contractor, is to this effect: The defendant had purchased of Brown the
The instructions suggest that counsel for the plaintiff, in the court below, sought to fix liability upon the defendant for the statutory penalty, upon the ground that Halbert was the servant of the defendant rather than an independent contractor, and that he was put f orward by the defendant as in name a contractor to shield himself against liability for the trespass, and also because
The judgment is affirmed.