City of University City ex rel. and to Use of Mackey v. Frank Miceli & Sons Realty & Bldg. Co.

• Decision Date: 08 May 1961
• Docket Number: No. 2,No. 48336,48336,2
• Parties: CITY OF UNIVERSITY CITY ex rel. and to the Use of Edwin D. MACKEY, et al., Plaintiffs-Appellants, v. FRANK MICELI & SONS REALTY & BUILDING CO., a Corporation, and Travelers Indemnity Company, a Corporation, Defendants, Travelers Indemnity Company, Respondent
• Court: Missouri Supreme Court

Page 131

347 S.W.2d 131

CITY OF UNIVERSITY CITY ex rel. and to the Use of Edwin D.

MACKEY, et al., Plaintiffs-Appellants, v. FRANK MICELI & SONS REALTY & BUILDING CO., a Corporation, and Travelers Indemnity Company, a Corporation, Defendants, Travelers Indemnity Company, Respondent.

No. 48336.

Supreme Court of Missouri, Division No. 2.

May 8, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 12, 1961.

H. Jackson Daniel and Martin Schiff, Jr., Husch, Eppenberger, Donohue, Elson & Jones, Maurice Schechter, St. Louis, for appellants.

Evans & Dixon, John F. Evans, St. Louis, for respondent.

BARRETT, Commissioner.

In this suit, prosecuted at the relation of University City, the individually named plaintiffs are ten owners of residence property in an area known as Mayflower Court, a subdivision in University City platted as McKnight Downs. The defendants are Frank Miceli & Sons Realty and Building Company and the Travelers Indemnity Company. In 1953 Miceli subdivided and platted McKnight Downs and eventually sold the eighteen lots or plots of ground in the subdivision to the individually named plaintiffs, and others, or their predecessors in title. In connection with the platting of the subdivision, the Municipal Code required the subdivider to make certain improvements. In lieu of final completion of the improvements the subdivider was permitted to post a surety bond. This Miceli did and the Travelers Indemnity Company is his surety in the principal sum of $18,000. There is a drainage ditch across the north and west side of the subdivision and one of the improvements required of Miceli was the paving, grading and concreting of the ditch, within two years. Miceli did not pave the ditch and the consequence has been that large sections, approximately one-fifth to one-third, of the plaintiffs' lots have washed away. The injury to the individual lots varied, the damages were estimated from $1,500 to $3,500, but the total damages to the ten lots was said to be $18,000. The object of this suit, according to the prayer of the petition, is to have the court 'declare forfeit the bond issued by the defendant Travelers Indemnity Company and for judgment in accordance with their damages' in the sum of $18,000 against both defendants.

Miceli defaulted, nevertheless, the trial court did not enter judgment against him and the plaintiffs do not complain of the fact upon this appeal. Other than on crossexamination of the plaintiffs' witnesses Travelers Indemnity Company offered no evidence, and at the close of the plaintiffs' evidence offered a separate motion to dismiss the action. The trial court entered this judgment in favor of Travelers Indemnity Company 'against each of the plaintiffs as a cause of action is not stated upon the surety bond executed by defendants upon the finding that it does not come within the provisions of Section 522.020, and Section 522.050, R.S.Mo.1949; although upon all other controverted issues, plaintiffs should prevail.' Therefore the trial court dismissed the plaintiffs' action with prejudice and they have appealed.

The plaintiffs have briefed and argued the single point that the court erred in dismissing their action 'because sections 522.020, 522.050, 522.080 and 522.150 * * * authorize the plaintiffs, as aggrieved parties, to maintain their action against defendants to forfeit the surety bond.' Briefly, the statutes, R.S.Mo.1959, provide that persons injured by the neglect or misfeasance of any officer may proceed against the principal or his sureties in any proceeding authorized by law against such officer 'for official neglect or injury.' Section 522.010. Sections 522.020 and 522.030, mentioned by the court in its judgment, authorize the prosecution of suits by a 'person so suing' in the name of the 'obligee named in the bond,' or, as here, at the relation of the obligee city. Sections 522.050 and 522.080 provide that 'Any other party aggrieved may, in like manner, prosecute an action on such official bond, * * *.' And section 522.150 provides that 'The provisions of this chapter in relation to suits on official bonds shall apply as well to suits on bonds of executors * * * and others required by law to give bond, with conditions for the performance of any duty or trust, as to suits on bonds of officers; and the persons aggrieved may prosecute suits in the same manner, and with like effect, and shall be subject, in all respects, to the provisions herein contained in respect to suits on official bonds, and the court shall possess the same power in relation to such suits.'

The plaintiffs point to these statutes and say that they are 'aggrieved parties,' that Miceli was a person required by law (the municipal code) to give bond, that the bond was executed to secure the faithful performance of his obligation to pave the drainage ditch and having failed to do so they meet the requirements of these statutes and are entitled to maintain this action.

The respondent bonding company contends that these statutes are not applicable 'to the type of bond involved' and that plaintiffs acquired no rights by reason of the statutes to recover on the bond. The respondent says that these statutes apply only to 'official bonds' insuring faithful performance of the duties of public officials and quasi public officers such as executors. Section 522.300 permits persons 'furnishing material or performing labor' to sue on the bonds of contractors performing public works for the state, county or cities. The respondent contends that the bond involved here is a 'public improvement bond' to secure completion of a public work and is therefore governed by section 522.300 but that plaintiffs may not maintain the action under that section because their claim is not for labor or materials furnished. And, finally, the respondent contends that the plaintiffs are not 'obligees or beneficiaries under the bond' and may not maintain an action against the surety for damages 'on the theory of breach of contract of the principal.' In summary, the respondent contends that the purpose of this bond is to indemnify 'the city alone' against the duty and expense of providing drainage or sewers and that only the city as sole obligee could enforce it.

After thus, perhaps unnecessarily, elaborately setting forth the contentions of the parties, it is not essential to a determination of this appeal to consider the history and applicability of the statutes. It is assumed for the purposes of this opinion, if the plaintiffs have a cause of action, that they could avail themselves of the remedy afforded by the statutes. See and consider Cooper v. Massachusetts Bonding & Ins. Co., 239 Mo.App. 67, 186 S.W.2d 549; State ex rel. Patterson v. Collins, Mo.App., 172 S.W.2d 284, 289; City of Chillicothe ex rel. Matson v. Raynard, 80 Mo. 185; 63 C.J.S. Municipal Corporations Sec. 1026, p. 623, Sec. 1172, p. 858 and the annotations 47 A.L.R. 5, 170 A.L.R. 1299. It is also sufficient for the purposes of this opinion to summarily say that section 522.300, despite the descriptive catch phrase 'Bonds Of Contractors For Public Works,' affords relief to 'those persons furnishing labor and material on public work, which cannot be subjected to a mechanic's lien' (City of St. Louis. to Use of Stone Creek Brick Co. v. Kaplan-McGowan Co., 233 Mo.App. 789, 794, 108 S.W.2d 987, 989; Camdenton Consolidated School District, etc. v. New York Casualty Co., 340 Mo. 1070, 104 S.W.2d 319) and has no bearing on this action or its subject. The plaintiffs' basic difficulty here, as in several of the actions brought under these statutes (to illustrate see State ex rel. Funk v. Turner, 328 Mo. 604, 42 S.W.2d 594), is that they have not established a substantive cause of action.

Miceli, admittedly, did not pave the drainage ditch and the...