Montain v. City of Fargo

Grace, J.

(dissenting). The appeal in this case is from an order sustaining a demurrer to the complaint.

The complaint alleges in substance that Mons Montain came to his death by being struck by a garbage sled which at the time was drawn by a runaway team. Mons Montain, at the time he met his death, was in the employ of the city of Eargo, he being superintendent of the garbage or dumping ground.

It appears that the city of Fargo had entered into an agreement with one Neis Johnson, in writing, whereby the said Johnson was to furnish four teams and eight men, or any number of teams at the rate of $147 a month for each team and two men, to haul said garbage from the •city of Fargo during the year 1915. According to the agreement the work was to be done under the provisions of the ordinance of such city, known as the “garbage ordinance,” and was to be performed to the full satisfaction and acceptance of said city, and to be done in a good and substantial manner, and in such manner as to meet the approval and acceptance of the city, and all such work to be done under the supervision and direction of the commissioner of health, or such agent or agents as he might appoint for that purpose. Such agreement also provided that the teams, equipment, and men should be acceptable and satisfactory to the health commissioner. The city reserved the right to cancel the agreement upon ten days’ notice, upon Johnson’s failure to comply in all respects with the terms and conditions of the contract and the provisions of the ordinance.

The city of Fargo, the defendant, seeks to escape liability for its *444 negligence upon two theories: First, that Johnson was an independent contractor, and, being snch, the city was not liable for his negligence. Second, that even if Johnson was not an independent contractor, and. even if he was the agent of the city, so that the city would be liable-for his negligent acts in and about performing the work for the city for which he was employed, the city would not be liable, notwithstanding-such facts, for the reason that in disposing of such garbage it claimed to be acting in a governmental capacity, and claimed for this reason to-be immune from liability.

Upon investigation and analysis of the first legal proposition, it is perfectly clear that Johnson was not an independent contractor, but merely a servant of the city of Fargo. The relation between the- city of Fargo and Johnson was one of master and servant, and not the- relation of independent contractor. Under the very terms of the written agreement which Johnson had with the city of Fargo, when such contract is examined in the light of the law of master and servant, there remains no doubt of the fact that Johnson was a servant of the city. The term, “independent contractor,” is one difficult of definition. It is difficult to distinguish the line of demarcation by which independent contractors may be separated from servants. It appears to us, there may be such a person as an independent contractor. A contract may be made in which one of the contracting parties would and could be an independent contractor. The great difficulty appears to be in the efforts so-often resorted to by endeavoring to make a relationship which is purely one of master and servant fit into the relationship of that of independent contractor for the purpose of avoiding liability which in case of injury or damage would naturally flow from the relationship of master and servant, thus seeking security under the protecting principle upon-which the relationship of independent contractor is founded. Where the law of master and servant is for our consideration there is no difficulty in applying the law. The relationship of the master to his. servant is well understood, and his duties and liabilities are easily discernible. If the master is negligent in the execution of his duties, and his servant is injured through the negligence of such master in the performance of his plain duties towards the servant, liability of the master towards the servant naturally follows. It is different with the law of independent contractor. It seems that the relationship or principle of *445 independent contractor, and the law relating thereto, are somewhat shadowy and uncertain. The relationship is not a common one, except that it has been made more common in recent years in an effort to .shift or. avoid liability. When an independent contract is made, it is made by a person who contracts to have a certain job of work done, who is called a contractor, with a person who contracts to do the job of work, who is called an independent contractor. Why the invention of this comparatively new term, “independent contractor?” The answer is, it is a means by which in a proper case a person for whom the work is to be done, or in other words, the contractor, may avoid his liability for any damages to any person who may be engaged in assisting in the performance of the work to be done. As before indicated, there .are conditions, and certain quantities of work to be done, to which the principle is applicable. To the application of the principle in a proper ■case there can be no objection. The abuse of the principle is, in seeking to apply it in cases and to conditions to which it is not germane.

Without following any particular set definition which we have found .and examined in different authorities concerning the relationship of independent contractor, but taking such definitions into consideration and applying also other language which we think may throw some light upon the relationship of independent contractor, we find the meaning •of “independent contractor” to be as follows: An independent contractor may be defined as one exercising an independent employment in ■which he is shilled, who, having entered into a contract to do certain work, does his work according to his own way and method, independent of any methods submitted by another, and who is not subject to the •control of any person in the execution of his work; being responsible ■only for the result of his work; doing all the work at his own risk and cost in the first instance, and furnishing all means and power by which ouch work is done; and who contracts to do a complete quantity or job of work at a stated price for the whole of such work, which is to be •considered as the price for which the whole work is to be done, and not .as wages; and who cannot be discharged at the will of the person with whom the contract is made, or because the-person with whom the independent contractor has made the agreement, is dissatisfied with the work. Measured by this definition and by the terms of the written •contract between Johnson and the city of Fargo, Johnson was merely *446 a servant of such city. It will be noticed, from a consideration of suck written contract, tkat all work performed by Johnson for the city was to be supervised and controlled by the city. The city reserved certain power in such contract whereby it could supervise and direct the means and the method of doing suck work; for the contract specifically says, “Such teams, equipment, and men to be acceptable and satisfactory to-the health commissioner.” And again, the entire work was to be done in a good and substantial manner, and this means, they could determine the quality of the work and the manner in which it was performed. The contract further says that the work shall be done in such a manner as to meet the “approval and acceptance of the city.” We can easily understand that, if the city did not approve of any work done, the so-called independent contractor would have to do the work in a different manner so as to merit the approval of the city; and thus we see the city really directed the doing of the work. The city could enforce all these demands, directions, and requirements in what way? The answer is in the contract itself, — by discharging the independent contractor upon ten days’ notice. Or, in other words, by canceling the contract upon ten days’ notice, which is in fact a discharge of the independent contractor. These are not the rights and remedies of one who contracts with an independent contractor. Where one contracts with an independent contractor for a complete job of work at a certain price, he permits such independent contractor to do such work according to his own manner and method of performing such work; but if the work is not satisfactory to the person with whom the independent contractor has made the agreement, such person cannot discharge the independent contractor; but if the work which the independent contractor agreed to-do is not done in such a manner as to bring about the result which was-contracted to be brought about, the one who made the contract with the independent contractor has a complete remedy in refusing to pay the price stated in the contract, by reason of the failure of the independent contractor to bring about the result he contracted to bring about. In the case of Schular v. Hudson River R. Co. 38 Barb. 653 , the court said: “Perhaps the most usual test by which to determine whether the person doing the injury was a servant or an independent contractor is to consider whether he was working by the job or at stated wages,— so much per day, week, or month. A person who works for wages. *447 whose labor is directed and controlled by the employer either in person or by an intermediate agent, is a servant, and the master must answer for a wrong done by him in the course of his employment. A person who for a stated sum engages to perform a stated piece of labor in which he is skilled, the proprietor of the work leaving him to his own methods, is an independent contractor. The proprietor does not stand in the relation of superior to him, and is not answerable for the wrongs done by him or his servants in the prosecution of his work, unless special .circumstances exist making him so. The fact that the employee was hired, not for a definite time, but to perform a particular job, does not,, however, of itself negative the relation of master and servant, for under-such a contract the employer may well retain full control over him; and it must constantly be borne in mind that the power to control on the part of the employer is the essential fact establishing the relation.”

Jensen v. Barbour, 15 Mont. 582 , 39 Pac. 906 ; Bibb v. Norfolk & W. R. Co. 87 Va. 711 , 14 S. E. 163 ; Fink v. Missouri Furnace Co. 82 Mo. 276 , 52 Am. Rep. 376 ; Norfolk & W. R. Co. v. Stevens, 97 Va. 631 , 46 L.R.A. 367 , 34 S. E. 525 ; Waters v. Pioneer Fuel Co. 52 Minn. 471 , 38 Am. St. Rep. 564 , 55 N. W. 52 ; Indiana Iron Co. v. Gray, 19 Ind. App. 565 , 48 N. E. 803 ; Majors v. Connor, 162 Cal. 131 , 121 Pac. 371 ; Perkins v. Blauth, 163 Cal. 782 , 127 Pac. 50 ; Nelson v. American Cement Plaster Co. 84 Kan. 797 , 115 Pac. 578 ; Johnson v. Carolina, C. & O. R. Co. 157 N. C. 382 , 72 S. E. 1057 ; Swanson v. Schmidt-Gulack Elevator Co. 22 N. D. 563 , 135 N. W. 207 ; Singer Mfg. Co. v. Rahn, 132 U. S. 518 , 33 L. ed. 440, 10 Sup. Ct. Rep. 175; Sacchi v. Bayside Lumber Co. 13 Cal. App. 72 , 108 Pac. 885 ; Atlantic Transport Co. v. Coneys, 28 C. C. A. 388 , 51 U. S. App. 570, 82 Fed. 177 ; Campbell v. Lunsford, 83 Ala. 512 , 3 So. 522 , 13 Am. Neg. Cas. 164 ; Giacomin v. Pacific Lumber Co. 5 Cal. App. 218 , 89 Pac. 1059 ; Linnehan v. Rollins, 137 Mass. 123 , 50 Am. Rep. 287 ; DePalma v. Weinman, 15 N. M. 68, 24 L.R.A.(N.S.) 423, 103 Pac. 782 ; Potter v. Seymour, 4 Bosw. 140 ; Goldman v. Mason, 18 N. Y. S. R. 376, 2 N. Y. Supp. 337 ; Hawke v. Brown, 28 App. Div. 37 , 50 N. Y. Supp. 1032 ; Baldwin v. Abraham, 171 N. Y. 677 , 64 N. E. 1118 ; Pickens v. Diecker, 21 Ohio St. 212 , 8 Am. Rep. 55 ; Smith v. Humphreyville, 47 Tex. Civ. App. 140 , 104 S. W. 495 ; Kniceley v. West Virginia Midland Co. 64 W. Ya. 278, 17 L.R.A.(N.S.) 370, 61 S. E. 811 ; Lacour *448 v. New York, 3 Duer, 406 ; New Orleans, M. & C. R. Co. v. Hanning, 15 Wall. 649 , 21 L. ed. 220.

In the light of the language of the written contract, the authorities ■cited by the majority opinion sustain our contention that in this case Johnson was a servant of the city of Fargo, and not an independent •contractor. The majority opinion contains the following, citing 1 Thomp. Neg. §§ 579, 629: “The right to control the conduct of ¡another implies the power to discharge him from the service or employment for disobedience; and, accordingly, the power to discharge has been regarded as the test by which to determine whether the relation •of master and servant exists.”

Keeping in mind that the written 'contract in question between Johnson and the city of Fargo provides that the city may, upon ten days’ notice, cancel the contract if the second party fails to comply with ■the terms and provisions thereof, and the provisions of the ordinance, it simply means that the city can for such causes discharge Johnson upon ten days’ notice by cancelation of his contract; his relation to “the city of Fargo is that of servant, and not an independent contractor, ■when measured even by the authorities relied upon by the majority. The majority opinion further says: “The relation of master and ■servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be .accomplished.” Then follows in the majority opinion numerous authorities in support of this point. We accept the law contained in the •quotation, and believe, when the language of the contract is carefully «examined, our interpretation thereof is sustained by all of the law cited by the majority in relation to defining master and servant. The city in this case had the right to decide the manner in which the work was ■done; for it had to be done in a manner which suited them and which met with their approval. And the city, also, not only had the authority by the contract to decide the manner in which the work was to be done by refusing to accept it until it was done to suit them, and thus they determined the result to be accomplished. When we add to this the right to discharge Johnson by giving him ten days’ notice and canceling his contract, all the elements by which we determine when one is a master are supplied.

■ The second question to be considered in this case is, Was the city *449 acting in a governmental capacity in causing the removal and disposition of the garbage ? We are clear, so far as the facts of this case are ascertained from the pleadings, that the city, when removing and disposing of such garbage, was not acting in a governmental capacity, but was merely engaged in the performance of a ministerial duty. It is a well-settled rule that where it is the duty of a municipal corporation, by statute or implication of law, to keep its streets in a reasonably safe condition for public travel, such duty cannot be delegated to •another so as to relieve the municipal corporation from liability for injury sustained by another on account of the neglect or failure of the municipal corporation to observe its duty. This principle is established in a long line of authorities.

Sterling v. Schiffmacher, 47 Ill. App. 141 ; Springfield v. Scheevers, 21 Ill. App. 203 ; Anna v. Boren, 77 Ill. App. 408 ; Louisville City R. Co. v. Louisville, 8 Bush, 415 ; Birmingham v. McCary, 84 Ala. 469 , 4 So. 630 ; Jacksonville v. Drew, 19 Fla. 106 , 45 Am. Rep. 5 ; Betz v. Limingi, 46 La. Ann. 1113 , 49 Am. St. Rep. 344 ; 15 So. 385 ; Baker v. Grand Rapids, 111 Mich. 447 , 69 N. W. 740 , 1 Am. Neg. Rep. 90; Blake v. St. Louis, 40 Mo. 569 ; Welsh v. St. Louis, 73 Mo. 71 ; Russell v. Columbia, 74 Mo. 480 , 41 Am. Rep. 325 ; Davis v. Omaha, 47 Neb. 836 , 66 N. W. 859 ; Beatrice v. Reid, 41 Neb. 214 , 59 N. W. 770 ; Omaha v. Jensen, 35 Neb. 68 , 37 Am. St. Rep. 432 , 52 N. W. 833 ; Scanlon v. Watertown, 14 App. Div. 1 , 43 N. Y. Supp. 618 ; Storrs v. Utica, 17 N. Y. 104 , 72 Am. Dec. 437 ; McAllister v. Albany, 18 Or. 426 , 23 Pac. 845 ; Williams v. Tripp, 11 R. I. 447; Watson v. Tripp, 11 R. I. 98, 23 Am. Rep. 420 ; Nashville v. Brown, 9 Heisk. 1 , 24 Am. Rep. 289 ; Patterson v. Austin, — Tex. Civ. App. —, 29 S. W. 1139 ; Morris v. Salt Lake City, 35 Utah, 474 , 101 Pac. 373 ; McCoull v. Manchester, 85 Va. 579 , 2 L.R.A. 691 , 8 S. E. 379 ; Drake v. Seattle, 30 Wash. 81 , 94 Am. St. Rep. 844 , 70 Pac. 231 .

The duty of a city to keep its streets in a reasonably safe condition for public travel, and to keep them in repair and in proper condition, is mostly for the benefit of the city itself; and such duty extends to, and includes, keeping the streets cleaned and the removal of garbage. The removal of garbage, ashes, rags, and papers, and other debris which may accumulate upon the streets, is to be classified and comes under the duties incumbent upon the city to keep its streets and alleys in a safe *450 and good condition of repair, and the removal of the garbage and debris from the streets is part of the duty of repair and care of streets and alleys. Missano v. New York, 160 N. Y. 123 , 54 N. E. 744 , 6 Am, Neg. Rep. 652.

Dillon on Municipal Corporation says that such corporations are possessed of dual power, — the one governmental, legislative, or public, and the other proprietary or private; that the care of the streets is within the latter classification. See Dill. Mun. Corp. 4th ed. § 980 and § 66. This principle is also sustained in Conrad v. Ithaca, 16 N. Y. 158 .

The liability of municipalities as to the care of streets has been recognized in a great number of cases, among which is found Barnes v. District of Columbia, 91 U. S. 540 , 23 L. ed. 440, and Barney Dumping-boat Co. v. New York, 40 Fed. 50 . In the latter case Judge Wallace, referring to the commissioner of street cleaning, says: “His duties, unlike those of the officers of the departments of health, charities, fire and police, although performed incidentally in the interest of public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to them.”

So, in the case at bar, Johnson, even though under the contract he was to work under the direction of the health commissioner, nevertheless the work he did do was performed more particularly in the interest of the city itself than that of the public. While the removal of the garbage and debris of all kinds from the streets may incidentally be for the public health, the greater benefit is to the city, and the removal thereof is a part of the duty of such city of keeping the streets in repair, and the duty is purely ministerial and principally for the benefit of the city. There is a distinction between the liability of municipal corporations who have accepted a city charter, and such corporations as counties and townships. The former, the municipal corporations, are always under greater liability J

In the case of Circleville v. Sohn, 59 Ohio St. 285 , 69 Am. St. Rep. 777 , 52 N. E. 788 , 5 Am. Neg. Rep. 704, we find the following in the syllabus: “The duty enjoined by statute on municipal corporations to keep their public ways open in repair and free from nuisance is min *451 isterial and mandatory, and requires the removal from such ways of all dangerous defects, and obstructions, from whatever cause arising.” We are of the opinion that it is the ministerial duty also of the city to keep its streets clean, to remove garbage therefrom, and to keep them in a sanitary condition; and the removal of such garbage is a ministerial duty principally in the interest of the city itself; and the duty to so keep its streets clean is a ministerial, and not a governmental, function. The test which has generally been applied is, “If the duty in respect to which there has been a wrongful act or omission is one resting -primarily upon municipalities, and is not a mere governmental duty, the performance of which has been delegated to the municipality by competent legislative authority, then the liability of the municipality is substantially that of a private corporation. We are convinced that the duty of cleaning the streets, removing garbage and debris therefrom in the city, is a duty connected with the care and repair of such streets, and is a duty resting primarily upon the municipality for its own convenience and benefit principally, although the general public may be benefited to some extent incidentally.”

Up to this point we have been discussing more particularly the duties of a municipality with reference to the care and repair of its streets and alleys, and also its liability when negligent in performing such duties. The removal of garbage and other accumulations, such as ashes, etc., from its streets and alleys so as to keep them in a safe and clean condition, is without question a municipal ministerial duty. The garbage contract in question relates more particularly to the removal of garbage from private property, such as the removal of scraps of meat, and other refuse which is thrown away after meals, also papers, rags, and other waste material which a private owner' discards. It is plain to us that the disposition of all of such material and refuse in a proper manner is a duty which primarily belongs to the owner of the private property. It is the duty of every owner of private property, whether the same is in use or not, to keep it in a clean, sanitary condition, and in such a condition that no nuisance will be maintained thereon which would be offensive to other persons within said municipality, or which would endanger the comfort and health of the community, or result in the interference to others with the full enjoyment and pleasure of their rights and property. The municipality, therefore, could require every *452 owner of private property to so maintain his premises and keep it in a clean and sanitary condition.

The defendant in this case is under the commission form of government, and has the right, power, and authority by the law under which it is organized, which fully sets forth all its powers and duties, to inspect all private premises, and cause to be removed therefrom and abated any condition thereon maintained in the nature of a nuisance, and which would tend to interfere with the comfort of the inhabitants of the municipality, or which could in any manner be offensive to the inhabitants of such municipality. This would include the power, therefore, to cause to be removed all refuse of every kind and description found upon said private premises by the inspector or overseer, who may be appointed by the municipality. Such refuse accumulated upon private property is usually, but not always, placed in receptacles with proper covers thereto, which receptacles are placed in a convenient manner near the alley or other convenient place for removal.

We have seen that it is the primary duty of the private owner of such property to remove all such refuse. If the municipality therefore undertakes to perform this private duty for the convenience, comfort, protection, and health of the municipality, and considers it can do it in a better way and manner than the private property owner could do, in the removal of such refuse the municipality is acting and doing such work mostly in behalf and for the convenience and comfort of the inhabitants of such city, and the public at large can receive only very slight individual benefit, and hence the performance of such service by the city is not a governmental, but a ministerial, duty. If the city in the performance' of such ministerial duty does the same in a negligent manner so as to cause an injury to some person, it cannot escape liability any more than the private owner of the property from which such refuse is removed could escape liability if he had removed the refuse, and in the course of such removal acted so negligently as to cause injury to another.

Our court in the case of Ludlow v. Fargo, 3 N. D. 485 , 51 N. W. 506 , said in the syllabus of such case: “Cities which have been organized or reorganized under the general law of this state . . . are charged with full power and responsibility in the matter of the streets, sidewalks, and crossings within their limits; and the duty of estab *453 lishing streets and removing obstructions therefrom is a duty expressly enjoined by the statute. In performing such duties, cities are liable in a civil action to persons who in the exercise of due care receive injuries caused by negligent acts done either by the city officials, or others who are acting for the city and under its authority. The cities so organized and governed are impliedly liable for damages caused by their wrongful or negligent acts, and no express statute making them, liable is necessary. Accordingly, held that the following instruction given by the trial court to the jury is not error: ‘The general rule is that, in the case of a highway, a municipal corporation is answerable in damages for the lack of ordinary and reasonable care, and is held to the same rule of negligence which is expected of private persons in the conduct of their business, involving a like danger to others.’ ”

We see, therefore, in this case the city assumed the duty of removing the garbage for private persons, and even in the absence of a statute they are impliedly liable for their negligent acts just the same as the private owner would have been.

Another case of importance is Grand Forks v. Paulsness, 19 N. D. 293 , 40 L.R.A.(N.S.) 1158, 123 N. W. 878 . This was a case in which the city was held liable in the United States district court for the district of North Dakota. The waterworks of said city were owned by it. They became out of repair. • They were repaired by a licensed plumber in the employ of the city of Grand Forks under the direction of the superintendent of the waterworks. In making such repairs an obstruction was placed upon the street by reason of which Paulsness was injured, and the city was held liable for its negligence, and plaintiff recovered a verdict against it. While in this case the recovery was had by reason of the negligence of the city in keeping its streets in ah unsafe condition, nevertheless, if water had escaped through the negligence of the city in the management of its waterworks, and overflowed and destroyed property, there is no doubt in our mind but what it can be held liable for such damage.

Where a municipality undertakes to maintain a waterworks system and to supply its citizens with water for pay, it is liable to individuals whose property is injured by the negligence of its employees, placed in charge of the plant, failing to maintain it in a safe condition. Piper v. Madison, 140 Wis. 311 , 25 L.R.A.(N.S.) 239, 133 Am. St. Rep. *454 1078 , 122 N. W. 730 . And where the municipal corporation uses its waterworks system for protection against fire, it is not relieved from liability to private property through the negligence of its employees in maintaining the plant in an unsafe condition, except for such acts as are performed in the actual work incident to extinguishing fires. In such case the city is performing an act for a private party for which it gets pay. However, in the case in question, in the removal of the garbage the act of the city is also the performance of an act for a private party, and the city reimburses itself through taxation. The fact that the city receives no pay, and that such work is paid for through the channel of taxation, does not detract from the fact that the disposal of the garbage is a duty incumbent upon the private owner of the premises; and where the municipality undertakes to perform such a duty in place of the owner of the premises, such work is to- be considered rather in the nature of a private act on the part of the city, than a pqblic duty, for the reason that the benefits derived from such performance accrue to the owners of private property and the inhabitants of the city. Where the city is organized and receives its charter from the state, either under a special grant or under the general law, it is as a general rule its ministerial duty under either of such grants to keep its streets in a safe condition, and to keep the city as a whole in a clean, healthful, and sanitary condition. We believe this is a part of the ministerial duty which the city obligates itself to perform; and if in the execution of such duty it acts negligently, like other corporations, it is liable for such negligence.

In Denver v. Davis, 37 Colo. 370 , 6 L.R.A.(N.S.) 1013, 119 Am. St. Rep. 293 , 86 Pac. 1027 , 11 Ann. Cas. 187, 20 Am. Neg. Rep. 498, we find the following in the syllabus: “The maintenance of a dump for the reception of waste materials gathered from the streets, alleys, and private premises of a city, is for its private and corporate convenience, so that the city will be liable in case it is so negligently managed that fire spreads from it and destroys property in the vicinity, although the supervision of the dump is in the heallh department

The principle in question in Denver Case is, we believe, applicable to the case at bai*. After a sewage system has once been completed and placed in operation, the maintenance, conduct, and operation thereof becomes merely a ministerial duty. If the municipality should be neg *455 ligent in the performance of such ministerial duty, and should leave the manholes uncovered so that a person should fall therein and be injured, or if the pipe should break and private property should be injured thereby, — should become flooded and not usable, — it can hardly he said that the city would not be liable for its negligence on the ground -that they were engaged in the execution of a governmental power. Garbage in a large sense is sewage. It is the coarser material that cannot be safely put through the sewer for fear of blocking the sewer pipe, and hence must be hauled rather than put through the sewer pipe. But properly speaking it may be classed under the head of sewage; and if the municipality is negligent in its removal, having undertaken to remove the same, and having undertaken to perform the duties which really belong to the owner of the premises from which such garbage is taken, it must use ordinary care in performing its duty; and if it fails to do so, and is negligent, it is liable for damages by reason of such negligence.

The question, whether or not Johnson was an independent contrac-, tor was not exclusively a question of law for the court. It was a mixed question of law and fact, and thus became exclusively a question for the jury. The plaintiff was not a party to the written contract, and contended that the contract did not express the true relations of the parties thereto. 14 R. C. L. 78. Bor this reason Johnson’s relations to the city of Fargo, whether he was an independent contractor or a mere servant, was a mixed question of law and fact. The demurrer should have been overruled, and such question submitted to the jury.

We are clear that the city of Fargo, in removing or causing to be removed the garbage from private premises or from its streets and alleys, and keeping them in a clean condition, was acting in a purely ministerial, and not a governmental capacity, for the benefit of itself ■and its citizens principally; and that, in employing Johnson to remove such garbage, the relation was established between the city and Johnson of master and servant. We are clear the demurrer should be overruled.