GENERAL INSURANCE COMPANY OF AMERICA v. United States

• Decision Date: 04 April 1969
• Docket Number: No. 26241.,26241.
• Citation: GENERAL INSURANCE COMPANY OF AMERICA v. United States, 409 F.2d 1326 (5th Cir. 1969)
• Parties: GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. UNITED STATES for the Use of AUDLEY MOORE & SON, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 1326 (1969)

GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. UNITED STATES for the Use of AUDLEY MOORE & SON, Appellee.

No. 26241.

United States Court of Appeals Fifth Circuit.

April 4, 1969.

Don W. Davis, Irion, Cain, Cooke, Magee & Davis, Dallas, Tex., for appellant.

Jack G. Neal, Ramey, Ramey & Neal, Sulphur Springs, Tex., for appellee.

Before ALDRICH,^* GODBOLD and DYER, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

In our original opinion we held that appellee's going on the premises to make final inspections and to take measurements for the purpose of preparing his final estimate was insufficient to constitute supplying labor in the prosecution of the work within the meaning of 40 U.S.C.A. § 270b(b). The visit to the premises by appellant occurred in late April or early May. His activity on the premises had ceased for several weeks. His final payroll had been submitted for the period ending April 2.

Appellee advances the theory that the taking of measurements, and the subsequent preparation of the final estimate on May 4, constituted supplying labor in the prosecution of the work, by reason of a general provision of the contract that "on the 25th of each month * * * subcontractor shall submit to the contractor an estimate of material on hand and work done." The gist of appellee's argument is that anything which he did in compliance with the terms of his contract constituted furnishing labor in the prosecution of the work, and until he discharged his every legal duty under the contract the statute of limitations did not begin to run.¹ Labor furnished in the prosecution of the work is not co-terminous with the outer limits of all duties provided by the contract.

Our original opinion, 406 F.2d 442, referred, by way of analogy, to the principle that correction of errors does not extend the time for filing suit. In his petition for rehearing appellee directs us to the per curiam opinion in Trinity Universal Ins. Co. v. Girdner, 379 F.2d 317 (5th Cir. 1967), which states that the language in 40 U.S.C.A. § 270b(b) "is broad enough to include work performed upon the demand of the government to correct defects in the work as originally completed." Id. at 318. We consider Trinity. In that case the inspector refused to approve the original work unless defective parts were replaced. This is to be distinguished from the situation in which labor is supplied or material furnished to correct defects...