* Corpus Juris-Cyc. References: Municipal Corporations, 43CJ, p. 946, n. 33; p. 948, n. 58. Employment of independent contractor as affecting liability for injury in disposal of garbage, see annotation in 65 L.R.A. pp. 469, 488; 23 A.L.R. 1078. Appellee sued appellant for damages alleged to have been done his land by appellant having used it as a dumping ground for its city garbage, and recovered a judgment in the sum of eight hundred fifty dollars, from which judgment appellant prosecutes this appeal.
Appellant contends that the court erred in refusing to direct a verdict in its favor. We think the material facts in the case are undisputed.
Appellant employed a city scavenger to remove and dispose of the garbage and other refuse matter, including dead animals, from the residence and business property of the city, as well as the city garbage and refuse proper. Appellant fixed the fees and charges which the city scavenger was to receive for his services. The removal of the garbage including dead animals from the residence and business property in the city was paid for direct by the owner of property to the city scavenger, while the city garbage proper, including dead animals for which no owner could be found, was paid for at the price fixed by the city itself. The mayor, and perhaps all the other officers of the city, knew that the city scavenger was dumping all garbage from the city, including dead animals, on appellee's property. But appellant neither directed that this be done, nor retained any control *Page 780 over the city scavenger as to where the garbage and dead animals should be dumped. The city scavenger was to provide his own dumping ground, and did so. Appellant had adopted no ordinance or resolution whatever retaining any control over the city scavenger, as to how he should dispose of his garbage and dead animals found within the city limits. That was left entirely to him. There was no evidence to show that appellant either approved or disapproved of the dumping ground selected by the city scavenger. The only control whatever appellant exercised over the scavenger in his work was to fix the prices which were to be paid by the property owners and by the city. Nor was there any evidence showing, or tending to show, that the city scavenger was unfit for the duties of his employment.
We are unable to distinguish this case, in principle, fromCity of Gulfport v. Shepperd, 116 Miss. 439, 77 So. 193. In that case, the city of Gulfport had adopted an ordinance providing for the keeping of the city in proper sanitary condition. For a statement of that case, we copy from the opinion as follows:
"Among other sections of this ordinance was a provision providing for the cleaning of cesspools outside of the fire limits of the city by the city sanitary contractor, and that the owner or occupant of the premises should pay to this contractor the sum of three dollars for the cleaning of the cesspool. It is also provided that these cesspools shall be inspected at certain times, and that they shall be kept in a sanitary condition. The sanitary contractor, or other person designated by the mayor and board of aldermen, shall demand of the owner or occupant the payment of this fee, and, if he refuse to pay the same, affidavit shall be made against him. There is a book kept at the police station in which citizens may register their complaints and requests on the sanitary contractor to do the sanitary work. It is also made the duty of the sanitary officers of the city to examine this book twice a day and look after the complaints and requests. *Page 781 The sanitary work done by the sanitary contractor shall be done under the immediate direction of the city sanitary inspector, who acts under the direction of the city health officer and the ordinances of the city. It is provided that the sanitary inspector shall see that the sanitary work is done in a proper manner, and shall direct the cleaning of those premises which need cleaning. It is further provided that the mayor and board of aldermen once a year shall receive bids and let out to the lowest and best bidder for the term of one year the exclusive privilege of cleaning and disinfecting privies and cesspools or premises in the city outside of the fire district. The prices for doing this work are also fixed by the ordinance. The person to whom the contract for this sanitary work is awarded shall be known as the sanitary contractor, and it is made his duty to inspect the premises of citizens of the city outside of the fire district for the purpose of ascertaining and determining the sanitary condition of the same and to clean all privies and cesspools. This sanitary contractor is required to enter into a bond in the sum of five hundred dollars, to be approved by the mayor and board of aldermen, conditioned to properly and faithfully perform all the duties according to the terms of his contract. In addition to the cleaning of cesspools on private property, he also does certain work for the city in removing garbage and trash from the streets. It is also made unlawful for any other persons than the sanitary contractor to engage in the business of cleaning privies, cesspools, and premises for the public. 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." *Page 782
The court held in that case that the city of Gulfport was not liable for the injury complained of, putting its decision on two distinct grounds: (1) That there was no liability because the city was exercising a governmental and not a corporate, function; and (2) that the person whose negligence caused the injury in that case was an independent contractor. With reference to the latter ground of decision, the court said:
"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 work for the benefit of the owner or occupier of the house under the city ordinance, and the city is not responsible for his negligence."
If the city scavenger, in the present case, was an independent contractor, it is wholly immaterial whether appellant, in providing for the disposition of garbage, and dead animals, was acting in its governmental, or in its private corporate capacity. In either case, there would be no liability on the part of appellant for the damage done appellee's land by the scavenger in the performance of his work. The selection of the dumping ground would not be the act of appellant, but the act of the scavenger, the independent contractor, for which the latter alone would be liable to any person thereby injured.
We see no escape under the undisputed facts of this case from holding that the city scavenger was as much an independent contractor as the sanitary contractor was *Page 783 in the Shepperd case. Knowledge on the part of the city authorities that the city scavenger was trespassing on appellee's property did not make the appellant liable; nor did the fact that, when appellee made complaint to the mayor of what was being done, the latter undertook to stop the practice. The mayor could not bind appellant in that manner. He had no right to direct the scavenger where to dump the garbage and dead animals.
It follows from these views that the court should have directed a verdict in appellant's favor.
Reversed, and judgment here for appellant.