92 Wis. 263 | Wis. | 1896
On behalf of the city it is urged that the complaint, did not state facts sufficient to constitute a cause of action against it, for the recovery of the plaintiff’s damages to his nets, because (1) it was the work of an independent contractor which caused his damages; and (2) his damages resulted from the operations of the commissioners.of public works, while engaged in the performance of duty owed to the general public, as distinguished from strictly corporate duty.
It requires no citation of authorities to show that, if the act which caused the damages was the work of an independent contractor, the city is not liable. Whether the person whose act caused the damages was, in legal contemplation, an independent contractor, is sometimes debatable on the facts. The test is, Had the defendant the right to control the conduct of the person doing the work, as respects the mode and mcmner of doing it, in the particular complained of Harper v. Milwaukee, 30 Wis. 365; 2 Thomp. Neg. 892, § 12; Id. 909, § 35. If the defendant had such right of con- ' trol, it is liable, if the act or omission was such as to create liability. If it had no such right of control, the doctrine of respondeat superior does not apply. This rule is subject to-one exception. Where the performance of the contract, in the ordinary mode, necessarily or naturally results in the injury complained of, the rule does not apply. In that case-the party contracting for the mischievous work to be done is liable for its necessary or natural consequences. But Lake Michigan is a wide place. The dumping ground was large. The contractor was unrestrained except on the ci£y side. He had the whole lake within his power for this purpose. It was neither necessary nor natural, in a legal sense, that this garbage should be dumped where it would come to the plaintiff’s nets. That result was, of course, possible, but not to be anticipated as natural or probable. Nor did the contract reserve to the city the right to control the mode or
On the other question raised the result is the same. If the commissioners of public works had done this work by their own employees and servants, without the intervention of an independent contractor, the city would not have been liable for such an injury growing out of the acts of such employees or servants, for it is a public service, as distinguished from a corporate duty. In that respect, it is like the fire, health, or police departments of cities. In such cases, “ the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance' of a duty imposed by law, for the general welfare of the inhabitants or of the community.” Hayes v. Oshkosh, 33 Wis. 314; Schultz v. Milwaukee, 49 Wis. 254; Britton v. Green Bay & F. H. W. W. Co. 81 Wis. 48; Condict v. Jersey City, 46 N. J. Law, 157; Bryant v. St. Paul, 33 Minn. 289; Dillon, Mun. Corp. (4th ed.), § 974; 2 Thomp. Reg. 737, § 5.
But, it is said, a municipal corporation has no right to create or maintain a nuisance. That suggestion is altogether aside from the questidn involved here, for here it is not the city, but a larger public, for whom the questionable act is done. And it is not necessarily, nor prima facie, an act of nuisance to cast the garbage of a city upon Lake Michigan, fifteen miles from the shore. It has long been the almost universal custom, everywhere, to empty the sewage of cities into adjacent lakes and streams, almost from necessity. It
The demurrer was well taken.
By the Court.— The order of the circuit court is reversed, ■and the cause remanded for further proceedings according to law.
