The opinion
Hr. Justice Scott, dissenting:
The contention in this case is, whether plaintiff was in the employ of defendant, or of the witness Zabel. That question was made before the jury, who found against defendant on that issue. Upon this vital point in the case, the evidence is quite conflicting, and, indeed, it may be said to be irreconcilable. But there are some facts in the case, about which there can hardly be any real controversy, that tend to strengthen the theory of plaintiff, upon which he based his right to recover.
The defense insisted upon by defendant is, that plaintiff was in the personal service of Father Zabel, the priest in charge of the church. It seems to be conceded, the priest in charge is, in some sense, an agent of the church, and, in connection with its other officers, has charge of its temporal and business affairs. At all events, he assumed to act on its behalf, without objection from any one, and the society or church availed of the benefit of his acts. The money which plaintiff let the priest have was for the benefit of the church, and was so used. In the light of the testimony, it can not be said it was for the individual interest of the priest. He used it for the church, and it was obtained for that purpose.
The same may be said of the personal services rendered by plaintiff. They were largely on account of the church, and, indeed, almost exclusively the work he did was that which the society was obligated to do. What he did in the personal service of the priest, was of no considerable importance, and constituted but a small portion of his labors. The work plaintiff did in the cemetery was on account of the church, from which it must have derived an income, and of which, no doubt, the priest as financial agent rendered an account. Other services in and about the church were rendered on behalf of the society worshipping there, and there is no reason why defendant should not pay for them. St. Patrick's Roman Catholic Church v. Abst, 76 Ill. 252 . In that case, as in this, the hiring was by the priest, as the agent of the corporation.
All the services performed were for defendant, and plaintiff ought not to be driven to an action against the officiating clergyman for the value of his labor. It is not just either to the priest, who was but the agent of defendant, nor to plaintiff. Assuming, as I do, the proof warrants the finding of the jury that plaintiff was in the employ of defendant, I think the verdict found, as to the amount found, is fully sustained by the evidence, and the judgment ought to be affirmed.