Kansas City v. O'Connell

• Decision Date: 21 December 1889
• Parties: KANSAS CITY ex rel. BLUMB v. O'CONNELL et al.
• Court: Missouri Supreme Court

12 S.W. 791

99 Mo. 357

KANSAS CITY ex rel. BLUMB v. O'CONNELL et al.

Supreme Court of Missouri.

December 21, 1889.

BONDS — RIGHTS OF THIRD PERSONS.

A contract for the construction of a sewer in Kansas City provided that the contractor should be responsible for all unlawful damages to persons or property from negligence or carelessness, and indemnify the city against all losses or claims for damage on account of such neglect or carelessness; and the sureties thereto agreed that he should well and faithfully perform all the terms of the contract. Held that, as the charter of Kansas City (Acts Mo. 1875, art. 8, § 9) requires that such contracts shall contain a covenant for the payment of laborers, to be guarantied by sureties, and gives laborers the right to an action thereon, the bond, apart from the covenant for the benefit of laborers, was for the benefit of the city only, and an action against the sureties on their contract for damages for injuries sustained by the carelessness of the contractor or his employes cannot be maintained by a third person.

Appeal from circuit court, Jackson county.

This suit was brought by the City of Kansas, to the use of Mary Blumb, against Timothy O'Connell, and several others, who are sureties on a bond executed by the principal defendant. Plaintiff was nonsuited, and appealed.

W. J. Scott, for appellant. Gage, Ladd & Small, for respondents.

BLACK, J.

This is a suit in the name of the City of Kansas, to the use of Mary Blumb, against O'Connell, and against five or six other persons, who are the sureties of O'Connell on his bond to the city. O'Connell was not served, and the sureties are the only parties defendant before the court. Defendants' objection to the introduction of any evidence was sustained, and the plaintiff took a nonsuit with leave. The question, therefore, is whether the petition states a cause of action. It discloses these facts: O'Connell was the contractor with the City of Kansas for the construction of a district sewer, and gave the bond upon which this suit is based to secure the performance of that contract. During the performance of the work Mary Blumb received personal injuries from a fragment of a stone thrown upon her by reason of the negligence of O'Connell and his laborers in blasting out the excavation for the sewer. For these injuries she sued O'Connell and the city, and recovered a judgment for $2,500, which remains unpaid, and in full force as against O'Connell, though reversed and annulled as to the City of Kansas. The bond is in the...