Mills v. Indem. Ins. Co. Of North Am., (No. 7654)
| Decision Date | 31 October 1933 |
| Docket Number | (No. 7654) |
| Court | West Virginia Supreme Court |
| Parties | E. R. Mills v. Indemnity Insurance Company of NorthAmerica |
E. R. Mills
v.
Indemnity Insurance Company of North
America
Supreme Court of Appeals of West Virginia.
Submitted October 18, 1933.
Decided October 31, 1933.
1. Neglige nce
One who has committed a breach of duty is liable for its natural and proximate effects, which may be immediate or through the subsequent media of natural forces or other innocent causes.
2. Principal and Surety
The contract of a surety for a profit should be construed most strongly in favor of the obligee.
3. Negligence
Vis major excuses the party asserting it only when he himself is not primarily at fault.
Error to Circuit Court, Kanawha County.
Action by E. R. Mills against the Indemnity Insurance Company of North America. To review a judgment in favor of the plaintiff, the defendant brings error.
Affirmed.
Henry S. Cato and Rummell, Blagg & Stone, for defendant in error.
Robert H. C. Kay, Price, Smith & Spilman and J. M. Woods, for plaintiff in error.
Hatcher, Judge:
The litigation between these parties has been in this Court twice before. The first case is reported in 108 W. Va. 317, and the second in 166 S. E. 531. We take from the latter opinion a statement of the present case. "The plaintiff, having contracted with the county court of Cabell County for the construction of a bridge in that county, sub-let a portion of the work to Metal Products Company, which furnished an indemnity bond to the plaintiff with the defendant as surety.
[114 W.Va. 264]
By reason of failure of the sub-contractor, the plaintiff took over the work and completed it, with the assent of the subcontractor's surety, the defendant. Incurring large expense in completing the work, the plaintiff instituted this action of debt against the surety on the bond." The bond, dated April 27, 1926, was for $5,700.00 and was conditioned as follows: "Now therefore, the condition of this obligation is such, that if the Principal shall indemnify the Obligee against loss or damage directly caused by the failure of the Principal to faithfully perform said contract, then this obligation shall be null and void; otherwise remain in full force and effect." The bond contained several sections limiting the liability of the surety, among which are section 5, exempting the surety in case of injury to the work by an "act of God"; and section 6, limiting the damages arising from delay in completion of the work to ten per cent of the penalty of the bond.
The Metal Products Company never did any work on the...
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