Myers v. Alta Const. Co.

• Decision Date: 04 September 1951
• Citation: 235 P.2d 1,37 Cal.2d 739
• Court: California Supreme Court
• Parties: MYERS v. ALTA CONST. CO. et al. L. A. 21909.

Page 1

235 P.2d 1

37 Cal.2d 739

MYERS v. ALTA CONST. CO. et al.

L. A. 21909.

Supreme Court of California, in Bank.

Sept. 4, 1951.

Thomas E. Davis, San Francisco, for appellant.

West, Vizzard, Howden & Baker and Gordon L. Howden, Bakersfield, for respondent.

GIBSON, Chief Justice.

Plaintiff, a licensed surveyor and civil engineer, brought this action against a contractor and its surety to recover the value of surveying and engineering services rendered in connection with the construction of a warehouse. Defendant surety has appealed from a judgment in favor of plaintiff.

The bond given by the surety was executed and recorded pursuant to the mechanic's lien law, Code Civ.Proc., § 1183, which requires the filing of a lien claim or the giving of a written notice to the surety as a condition precedent to an action on the undertaking. It is conceded that plaintiff failed to take either of these steps and that he is not entitled to recover against the surety unless he was excused from complying with these statutory requirements by the following provision in the bond: 'The Principal and Surety further agree to pay all just claims of laborers arising under said contract, within two (2) weeks after demand, and to waive the filing of lien claims or giving written notice required by Statute as a condition to bringing suit to enforce the same.' It appears that plaintiff's services were professional in nature and for the most part consisted of furnishing field crews. Defendant contends that the waiver provision of the bond applies only to manual laborers who personally perform the work for which a claim is made and that plaintiff is not within its terms.

The meaning of the word 'laborer' is not fixed in its application (see Webster's Dict. of Synonyms), and it has been said that 'it would be difficult, if not impracticable, to give any general definition of the word 'laborer' which would at once include all of the cases falling within the concept of the word and exclude those falling without.' See 31 Am.Jur., p. 834. It is commonly used to designate one whose work demands strength and physical toil rather than skill. See Webster's Dict. of Synonyms. It is also applied to one who performs work which requires a combination of skill and physical exertion as distinguished from one who depends primarily upon the exercise of mental faculties to accomplish a task. See Kerr v. Nelson, 7 Cal.2d 85, 88, 59 P.2d 821. In the more comprehensive sense it includes those who toil with their brains as well as those performing manual work. See 31 Am.Jur., p. 835. Since the meaning of the word is not fixed, it is necessary in each particular situation to look to the context in which the term is used to ascertain what is meant. As stated by Justice Harrison in Estate of Nelson, 132 Cal. 182, 191, 64 P. 294, 298, 'Philology is at best an unsafe criterion for ascertaining the meaning of words which are in common use, and the definition thus obtained is always subordinate to the meaning derived from the context, or from the circumstances under which the word is used.' The bond in the present case expressly states that it was given for the purpose of complying with the mechanic's lien law, Code Civ.Proc., § 1183 et seq., and the terms of the statute are to be read into the bond and control its interpretation and effect. Carpenter v. National Surety Co., 25 Cal.App.2d 90, 93, 76 P.2d 523. Accordingly, we look to the statute in ascertaining the meaning of 'laborers' as used in the waiver provision of the bond.

Section 1183 provides that 'Mechanics, materialmen, contractors, subcontractors, artisans, architects, machinists, builders, miners, teamsters and draymen, and all persons and laborers of every class...