Williams v. Alcorn Electric Light Co.

53 So. 958 | Miss. | 1910

Smith, J.,

delivered the opinion of the court.

Kelly, Pope & Rather, having a contract with appe] lees to build for them two cement houses in the city of Corinth, Miss., employed appellant at a salary of twenty-five dollars per week to superintend the construction thereof. Appellant occasionally assisted in laying the blocks of cement used in the construction of these buildings; but his main duties were to employ, pay off, and discharge the laborers, and supervise and direct them while at work. Kelly, Pope & Rather having become indebted to appellant on account of the services rendered by him, appellant gave notice thereof to appellees, as provided by section 3074, Code 1906. Payment of the amount alleged to be due appellant not having been made, this suit was instituted by appellant against his employers and appellees, which resulted in a verdict and judgment against his employers, and in a peremptory instruction of the court to the jury to find , for appellees, and judgment for them accordingly; hence this appeal.

Appellant’s right to recover depends upon whether or not he is a laborer within the meaning of said section 3074 of the Code of 1906. There is some conflict in the decisions relative to the matter under consideration, but in the language of the author of the note to Tabb v. Mallette, 102 Am. St. Rep. 84: “It would be difficult, if not impracticable, to give any general definition of the words ‘laborer,’ or ‘laboring man,’ which would at once include all the cases falling within the words and exclude those falling without. It may, however, be safely said that the word ‘laborer,’ when used in its ordinary and usual acceptation, carries with it the idea, of actual physical and manual exertion or toil, and is used to denote that class of persons who literally earn their bread by the sweat of their brows, and who perform with their own hands, at the cost of considerable physical labor, the contracts made with their employers,” etc.

To constitute a person a laborer, physical toil must be the main ingredient of the services rendered. Williams v. Link, 64 Miss. 641, 1 South. 907. Appellant is, therefore, not a laborer within the meaning of the statute, and the court committed no error in granting the peremptory instruction. Affirmed.