Employers' Mut. Liab. Ins. Co. of Wis. v. Ferd. H. Grahl Const. Co.
| Decision Date | 13 January 1931 |
| Citation | 234 N.W. 326,203 Wis. 315 |
| Parties | EMPLOYERS' MUT. LIABILITY INS. CO. OF WISCONSIN v. FERD. H. GRAHL CONST. CO. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.
Action by the Employers' Mutual Liability Insurance Company of Wisconsin against the Ferd. H. Grahl Construction Company and Southern Surety Company of New York. From an order sustaining last-named defendant's demurrer to the complaint, plaintiff appeals.--[By Editorial Staff.]
Affirmed.
Action commenced April 25, 1930. Plaintiff appeals from an order entered June 19, 1930, sustaining a demurrer of the defendant Southern Surety Company to the complaint.Brown, Pradt & Genrich, of Wausau, for appellant.
Bitker, Tierney & Puchner, of Milwaukee, for respondents.
In so far as material on this appeal, the allegations of the complaint are to the following effect: The defendant construction company contracted with the state and Dane county to reconstruct a highway, and by its contract bound itself to “pay all claims for the performance of any work or labor or the furnishing of any materials when the same pertains to or is for or in or about or under this contract as required by section 289.16, Statutes of Wisconsin, and to pay and discharge all liabilities for injuries which have been incurred in said construction under the operation of chapter 102 of the Wisconsin Statutes and all acts amendatory thereto.” In relation to that contract, the construction company, as principal, and the defendant surety company, as surety, entered into their bond to the state of Wisconsin for the performance of all of the terms of that contract and the payment “to each and every person or party entitled thereto all claims for work and labor performed or materials furnished for or in or about or under such contract as provided in section 289.16 of Wisconsin Statutes,” and to pay and discharge “all liabilities for injuries which have been incurred in the said construction under the operation of chapter 102 of the Wisconsin Statutes and all acts amendatory thereto.”
The construction company procured from the plaintiff compensation insurance against liability to employees engaged in such highway construction, and the plaintiff now sues for an unpaid portion of the premium. The construction work has been completed. The surety company demurred on the ground that the complaint does not state a cause of action against it.
[1] The only question on this appeal is whether the surety company is liable to plaintiff for the unpaid premiums. Section 289.16(1), Stats., requires all contracts for public work to have a provision for the payment by the contractor of all claims for work and labor performed and materials furnished, and requires every contractor to furnish a bond for the faithful performance of the contract, and payment to every person entitled thereto, of “all claims for work or labor performed, and materials furnished for or in or about or...
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...187 Wis. 206, 201 N. W. 980, 204 N.W. 476; State ex rel. v. Padgett, 54 N.D. 211, 209 N.W. 388, Employers' Mut. Liability Ins. Co. v. Grahl Const. Co., 203 Wis. 315, 234 N.W. 326. Appellants' position rests primarily on two cases, Merchants Mutual Casualty Co. v. United States Fidelity & Gu......
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