Massachusetts Bonding & Ins. Co. v. Steele

• Decision Date: 10 March 1927
• Docket Number: (No. 483.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 293 S.W. 647
• Parties: MASSACHUSETTS BONDING & INS. CO. v. STEELE.
• Court: Texas Court of Appeals

293 S.W. 647

MASSACHUSETTS BONDING & INS. CO. v. STEELE.

(No. 483.)^*

Court of Civil Appeals of Texas. Waco.

March 10, 1927.

Rehearing Denied April 7, 1927.

Appeal from District Court, Limestone County; A. M. Blackmon, Judge.

Action by L. L. Steele against the Massachusetts Bonding & Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, and C. S. Bradley, of Groesbeck, for appellant.

I. W. Keys, of Mexia, for appellee.

STANFORD, J.

Suit by appellee against appellant on a surety bond, executed by appellant as a surety for Sloan & Spoonts, contractors, to secure the faithful performance by said contractors of their contract with the trustees of the public schools of the city of Mexia in the erection of a school building, as per the terms of said contract, and for the payment of all labor in the prosecution of said work. Appellee claimed he had performed labor for said contractors in the construction of said building, for which he had not been paid, and that appellant was liable for same on said surety bond. In response to special issues, the jury found:

(1) That L. L. Steele was not a partner or member of the firm of Sloan & Spoonts, in the sense that he, Steele, was to share in the profits, if any, or be liable for the loss, if any, in the contract for the building of the Mexia high school building.

(2) That the firm of Sloan & Spoonts, contractors, did contract and agree to pay L. L. Steele $2,500 for his services for the term of four months in superintending and overlooking the construction of the Mexia high school building.

(3) That no part of the $2,500 ordered given by Sloan & Spoonts to L. L. Steele was understood to be in payment of or as compensation for any services other than superintending the construction of the Mexia high school building.

On said answers of the jury the court entered judgment for appellee. This is the second appeal in this case. For opinion on former appeal, see Massachusetts Bonding & Ins. Co. v. Steele (Tex. Civ. App.) 276 S. W. 470.

Under appellant's first assignment and proposition thereunder submitted, appellant contends the court erred in refusing to sustain a general demurrer to appellee's petition, in that the allegation of the services rendered negatived the fact that he performed labor under the terms of the statute and bond. There is no allegation that appellee furnished any material in the prosecution of the work, so the only question is whether or not his allegations are sufficient to show he furnished labor. Our statute provides, in effect, that a contractor who undertakes to construct under contract any public building or work shall be required to execute the usual penal bond, "with the additional obligation that such contractor shall promptly make payments to all persons supplying him or them with labor * * * in the prosecution of the work provided for in such contract." Rev. St. 1925, art. 5160. The construction contract provided that the contractor would furnish a good and sufficient bond, etc., "and said bond shall be further conditioned that said contractor shall promptly make payments to all persons * * * supplying said contractor with labor * * * in the prosecution of the work provided for by the contract," etc. By the provisions of the bond, the contractors and surety "are held and firmly bound unto the trustees, independent school district, Mexia, Tex., as well as to all persons * * * who may perform labor on the work," etc., and said bond obligates the contractors and surety to "promptly make payment to all persons supplying him or them with labor * * * in the prosecution of the work," etc., and said bond obligates the contractors and surety to "promptly make payments to all persons supplying him or them with labor * * * in the prosecution of the work provided for in such contract," etc. Appellee pleaded as follows:

"Plaintiff would further show to the court that he was employed by the firm of Sloan & Spoonts to take charge of the construction of said school building for a period of approximately 4 months, and under the terms of his employment plaintiff was to pay all bills incurred by the firm of Sloan & Spoonts, see that any and all material purchased was kept on hand ready for use in the construction of said building, and to see in general that the work progressed as fast as possible toward the completion of said building."

The exact question here involved is, Was the labor required of appellee, as alleged, labor in the prosecution of the work as provided for in our statute, also in the contract and bond sued upon? The term "labor" is a very broad term, with a well defined, understood, and accepted meaning, and includes all bodily or intellectual exertion done for a purpose other than the pleasure derived from the performance. 35 C. J. 922. Had our Legislature intended to use the word "labor" in a restricted sense, or with reference to a special class of endeavor, we think a qualifying word or phrase would have been used in connection with the term.

It is alleged appellee was employed to take charge of the construction of said building, pay the hands, look after the material, etc. We think, clearly, that superintending the construction, keeping the time of the other laborers, having the money ready and paying them promptly, providing the material and having it ready when needed, and attending to the things too numerous to mention that will naturally arise in the construction of a building of the proportions of the one here involved, is labor within the meaning of our statute, and is just as essential in the prosecution of the work as is the work of the brickmason or carpenter who labors upon said building.

But appellant contends the work performed by appellee does not come within the provisions of the statute, in that it was work that should have been performed by the contractors, and cites some authorities to sustain said contention, but we do not think this proposition sound. A public work or improvement might be of such proportions that the contractor could not superintend such work, or he might by reason of other work or other duties be unable to superintend the work in person, and in such case, where the contractor employs another to superintend, and said employee does perform labor in superintending, in the prosecution of such work, there is no sound reason why such labor should not be protected. The statute provides, in effect, that all labor in the prosecution of the work shall be protected, as do also the contract and bond in this case. The contractor is not required to do any part of it. Labor performed by the contractor, whether it be laying brick or superintending, is not protected, not because it is not labor in the prosecution of the work, but because no obligation is thereby created on the part of the contractor. It is debts incurred by the contractor for labor in the prosecution of the work that are protected. Article 5160, Revised Statutes 1925; Hess & Skinner Engineering Co. v. Turney (Tex. Civ. App.) 207 S. W. 171; Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621; Southern Surety Co. v. Callahan (Tex. Civ. App.) 283 S. W. 1098; Southern Surety Co. v. Guaranty Bank (Tex. Civ. App.) 275 S. W. 436; United States Fidelity Co. v. Henderson County (Tex. Com. App.) 276 S. W. 203, also Id. (Tex. Civ. App.) 253 S. W. 835; United States v. Lowrance (C. C. A.) 252 F. 122; City of Portland v. New England Co., 96 Or. 48, 189 P. 211; Carter County v. Hill Const. Co., 143 Tenn. 649, 228 S. W. 720; Bircker v. Rollins et al., 178 Cal. 347, 173 P. 592. This assignment is overruled.

Under several assignments, appellant contends the trial court erred in overruling its general demurrer to plaintiff's petition as based upon the assignment from the contractors to plaintiff. If this...