New Orleans & Northeastern R. R. v. Reese

61 Miss. 581 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

The important question in this case is, whether Kamper was the servant of the appellant or an independent contractor. If he was a mere employe and servant, the appellant was liable for his wrongful act in taking trees from the land of the appellee. If he was a contractor engaged in his own business under the contract and pursuing his own methods in procuring the materials he was to furnish, the appellant was not responsible for his acts. The evidence contained in the record makes it very doubtful what was the relation sustained by Kamper to the appellant. That Mulholland was an independent contractor is conceded. The contract with Kamper was that he should complete the job which Mulholland had and was to be paid for it what the materials and labor to be procured and furnished by him should cost and ten per cent, additional to that for his compensation. The court instructed the jury that this contract made Kamper the agent of the appellant, and made it responsible for his wrongful act in getting trees from the land of the appellee. This was in effect to determine that the mere mode of payment is the true criterion by which to fix the character of one as an employe or contractor, which is not correct. The mode of payment is a circumstance of much weight in solving the question, but it is not decisive and should not have been made so. Mr. Kamper may have been the agent of the appellant through whom it purchased and paid for materials and labor to carry on its work of. constructing the trestles, and it may consequently be liable for his acts in the conduct of its business, but that does not appear sufficiently to enable us to say that he was such agent. Certain it is, that the mere manner of compensating him for his connection with the work is not decisive of his relation to the appellant. If Kamper was engaged as the mere instrument through whom the appellant was to procure materials and labor to be paid for by the company as the expenditure was made in its behalf by Kamper ; in other words, if he was the disbursing agent of the appellant engaged to get materials and labor for it, and to be paid for his services a compensation measured by his disbursement for the company, he was its agent and it is responsible for his acts as such. There are some facts in evidence suggestive that this may have been the case, but they are too meagre to authorize a conclusion. It is shown that the appellant had a “ timekeeper ” in the person of one who took notice of those who labored at the work under Kamper’s employment, and gave laborers certificates showing the time for which they labored so that they could get their pay, but this may have been a proper precaution by the appellant against being required by Kamper to pay for more labor than was performed, and it is not shown whether Kamper or the appellant paid the laborers. If their names were on the pay-roll of the appellant, and they were in fact employes of the appellant, and its timekeeper gave them certificates to enable them to get pay from the appellant, and it was their paymaster, and Kamper was merely the instrument of engaging them for the company, this would fix his relation to the company as its mere servant.

We strongly suspect that Kamper was the servant of the appellant and not an independent contractor, and would not disturb the verdict but for the fact that the court erred in directing the jury, and the evidence is not full and satisfactory enough to authorize an affirmance of the judgment notwithstanding the error of law.

In another trial a full investigation may be had of the contract and course of dealing between the appellant and Kamper which should leave no doubt of the precise character of the relation between them.

jReversed and remanded.