
    No. 12,463.
    John Holmes, Jr., vs. Tennessee Coal, Iron and Railroad Company et al.
    On Motion to Dismiss the Appeal.
    
      Not a Judicial Function.— The power granted to the Secretary of State to receive the bonds of certain corporations and issue certificates based thereon, is ministerial.
    
      Not Violative of Constitution. — The right granted to these corporations to become sureties on appeal bonds is not a privilege. It was granted to a class, and there is nothing “ special ” in the statute.
    
      Principal's Signature. — The signature of the principal to the appeal bond need not be proven.
    
      Proof of Signature of Surety. — The certificate of the Secretary of State, admitted without objection, proved the signature of the surety on the bond; moreover, the objection was not timely made.
    On the Merits.
    The employee was an ordinary employee, a servant and n an independent contractor.
    
      Damages of the Servant. — De spite the hard treatment possible in certain cases, the court must, in accordance with law, hold that employers and masters are answerable for damages of their servants, committed while in the exercise of the functions in which they are employed and incidental thereto.
    
      
      Negligence. — It was an act of negligence to throw a large heavy board from the top of the car In the open space, where the one wounded by the blow of the falling board was passing.
    
      Amount — The damages awarded will not be increased unless manifestly insufficient.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.
    
    
      ■ Benjamin Itiee Forman and B. B. Forman, Jr., for Plaintiff, Ap-pellee.
    
      Bice & Montgomery for Defendant, Appellant.
    Argued and submitted April 27, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 30, 1897.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

The appellants having furnished appeal bond, with the United States Fidelity and Guarantee Company as surety, signing per Macon & Emery, agents and attorneys in fact, the appellee moved, on a number of grounds, to dismiss the appeal.

The grounds are:

First — The act under which certain corporations are authorized to become sureties upon bonds is illegal, for the reason that the functions entrusted to the Secretary of State, directing him to inquire as to the solvency of these corporations, are judicial and not ministerial.

Second — That the statute confers privileges upon the asserted favored corporations.

Third — The signatures of the principal and sureties on the appeal bond had not been proven.

Fourth — That the surety is not a resident of the parish of Orleans, where it has no property.

It is in place for us to state that the certificate of the Secretary of State, made out in accordance with Sec. 6 of the act No. 41 of 1894, is of record before as, establishing, as required by the statute, that the guarantee company, represented in this State by Macon & Emery, has complied with the laws of this State relative to foreign corporations authorized to become sureties on bonds.

The first objection raised by the appellee renders it necessary to determine whether the power conferred on the Secretary of State by the act in question is a judicial power.

Preliminarily to a decision of this point, it may be said that judgment, in the sense of exercising judicial power, involves an opinion and a decision. Here there is nothing of the sort. He, Secretary of State, does not put forth judicial power.

There is a broad distinction to be made between special authority under express delegation of duty and the judicial power invested upon courts in cases. The former is a ministerial function and the latter is judicial, emanating from a judge, or proceeding from a court of justice authorized to decide causes or exercise the functions of a court.

But under the statute in question the Secretary of State is authorized to accept a bond only under given facts, a duty purely ministerial.

His functions in matter of these bonds are well defined, and the limited authority with which he is entrusted, if not properly exerted, is subject to judicial investigation and decision.

The power to grant a certificate imposed upon the Secretary of State upon facts stated does not involve the exercise of a judicial function. As to the exercise of judgment which is required, it is not judicial in the sense of the power delegated to the courts.

A similar question was decided in State vs. Doyle, Secretary of State, 40 Wisconsin, 175; the court held that the power was not judicial, but ministerial.

Ministerial duties are exercised in obedience to a command or rule well defined — i. e., simple obedience or service is required in a specified manner. Pennington vs. Streight, 54 Indiana, p. 376.

With reference to the asserted privilege granted, urged as a second ground of objection:

The State may exercise the power of authorizing corporations or persons of a particular class, possessing the required responsibility or ability to become sureties, or perform certain acts. The statute has made no exception and applies to all of a class. The right of immunity is not special. It may be taken advantage of by all those whom the Legislature has chosen to designate by reference to a class or a number without violating the limitation of legislative power not to grant “ to any corporation any special privilege.” The right is not a privilege, and there is nothing special in the statute.

With reference to the proof of the signature of the principal, another objection to the appeal, raised by the appellant, it has long since been settled that such proof is not necessary. Richardson vs. Terrell, 9 Martin, 34. As relates .to the security and the objection urged that there is no legal proof that Macon & Emery were the agents of the surety to bind the surety; the certificate of the Secretary of State setting forth that they were agents was admitted without objection. Moreover, in the motion to dismiss filed in the lower court and tried, the objection here made was not raised. It follows that the ground was not timely urged before this court.

The case of the Standard Cotton Seed Oil Company vs. Matheson, 48 An. 1321, is an applying authority. The grounds were thoroughly considered in the cited case. We can conceive of no reason upon which to overrule that well considered case in so far as iD applies to the motion to dismiss this appeal.

The motion to dismiss is not sustained.

ON the Merits.

Plaintiff brought this action to recover damages from the defendant for asserted negligence in having employed an incompetent servant who, it was alleged, threw a large and heavy plank out of the car he was unloading, inflicting a scalp wound upon him (the plaintiff) and also fracturing his thigh, causing great pain and permanent injury. He was confined fifty days in the hospital and he was permanently crippled by the blow.

The appellants’ contention is that the injury complained of was not one for which it could be held responsible; that no act was traced to the Tennessee Coal and Iron Railroad Company, but that the injury complained of was inflicted by an independent contractor for whose negligence the appellant was not responsible.

In support of its defence the appellant averred that it was a shipper in cars of coal to this city to its agent Grote, who in turn contracted with one Seals to unload the cars at one dollar and fifty cents or two dollars and fifty cents a car; that Seals was not controlled in unloading the cars.

It'appears, by the evidence, when the accident occurred, Seals was unloading coal from a ear for the Jackson brewery on the levee in this city (buyers and consumers of the coal). The plaintiff was passing near the car at the time Seajs, aided by a hand he had employed to help him, was throwing the large and heavy board from the top of the car which, in falling, struck plaintiff. The injury, the evidence shows, was in connection with the work — i. e., the board was thrown off the car in connection with the work which was being done while unloading it. There was a judgment against the appellant for two thousand dollars.

Servant or Independent Contractor.

The first question before us for determination, is whether the person by whose act the injury is charged to have been committed was an independent contractor and not appellant’s servant.

The employer, in this case, unquestionably, ruled the servant, who was an old negro, who owned the shovel with which he unloaded the coal car. He slept in the coal yard and was on the lookout fora job. At times he'unloaded carts for the defendant, for which he was paid by the day. When he unloaded a car load of coal, he was paid for each car load he unloaded. This was, as we appreciate the facts, the only difference between the two; when he unloaded carts he was paid by the day, when he unloaded cars he was paid for each car unloaded by him. Occasionally he employed a hand to help him. If there was delay in unloading cars the defendant would employ additional labor and attend to the unloading.

Prom the facts proven, we judge that the old man could quit when he pleased; the employer on the other hand, could discharge him at will by paying for the work to the moment of the discharge. The laborer, as we understand, was under the authority of a principal, who directed and ruled in all matters relating to the work. A servant is one who, for wages, serves his employer, following his direction in performing the work. A workman by the piece who, by his industry and labor, gives the required shape to the material of his employer, who has no interest in the work and is not under a contract, is a servant, and an ordinary employee; the same is true of a laboring man who works by the job, in unloading a ear of coal under the direction and subject to the control of the employer. His (the laborer’s) task in the case before us was measured by the work required to unload a car of coal instead of by the day.

The independent contractor, on the other hand, is one who prosecutes an occupation having some independence.

While performing his contract and complying with its terms he is not subject to the rule and control of the employer, who can not interfere save to require the performance as agreed. The relation is one of contract under which the contractor retains same degree of independence, while the laboring man follows the employer’s direction, and is not independent in the sense of the independent contractor’s independence. The issue is whether this man was a laboring man, as such a servant, or an independent contractor; whether he was accountable directly to his employer, or holding an independent occupation? We must, under the definition of servant and of independent contractor, conclude that he was a servant serving for wages.

Were it different every workman working by the piece in every shop and factory or elsewhere for an employer would be an independent contractor, although he is not more independent or not more free from the control and direction of his employer than the most ordinary day laborer.

The test is found, said this court in Shea vs. Reems, 36 An. 967, in the question whether one person “has placed himself under the direction and control of another in such manner as to confer upon the latter the power of discharge for disobedience.”

Servants, says the Code, are those “who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation for the benefit of him who has contracted with them for a certain price or retribution, or upon certain conditions.” Art. 163.

The Rule, Respondat Superior.

It is also the law that a third person injured is entitled to such remedies against the superior as he may have suffex'ed at the hands of his servant while he, the servant, was carrying out the object for which he was employed. Here the servant did not step aside from the employment to commit the act. It was committed in connection with the work. •

“ Masters and employers are answerable for the damages by their servants in the exercise of the functions in which they are employed.” O. 0. 2320.

Our view of the Code finds expression in the following: “We never apply this rule without a sense of the hardship on the master; but it has been settled on a broad balancing of interest and equities, and judiéis est dieere, non donare, legem.’’’ Shea vs. Reems, 36 An. 969, which we here earnestly reiterate.

Negligence of the Servant.

By the foregoing conclusion we were brought to the last issue here involved: the nature of the act committed and the amount of damages which should be decreed. There was manifest negligence in throwing a heavy board in the open street, without the least regard to the safety of those passing near the car which was being unloaded.

They threw the board without the least warning, and struck the defendant. There would be no end to accidents if such acts were passed unnoticed.

Amount of Damages.

We agree with our learned brother of the District Court in the amount awarded, and we must decline to grant the prayer for an increase of damages. We have been given no good reason to justify us in increasing the amount allowed. It is consistent with our decrees allowing damages. Courts of appeal are not inclined to increase damages unless the amount is manifestly too small.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.

Nicholls, C. J., absent; ill.  