R. L. Harris, Inc. v. Cincinnati, N. O. & T. P. Ry. Co.

• Decision Date: 10 June 1955
• Citation: 280 S.W.2d 800,198 Tenn. 339,2 McCanless 339
• Parties: , 198 Tenn. 339 R. L. HARRIS, Inc., et al. v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al.
• Court: Tennessee Supreme Court

Page 800

280 S.W.2d 800

2 McCanless 339, 198 Tenn. 339

R. L. HARRIS, Inc., et al. v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al.

Supreme Court of Tennessee.

June 10, 1955.

Lindsay, Young & Young and Grimm, Tapp & Carson, Knoxville, for complainants, appellants-appellees.

Witt, Gaither, Abernathy & Finlay, Chattanooga, for defendants, appellees-appellants.

TOMLINSON, Justice.

According to the allegations of the bill, accepted here as facts, the Cincinnati, New Orleans & Texas Pacific Railway Company contracted with a co-defendant for extensive improvements, additions, etc., to its railroad property in Hamilton County known as Citico Yard. The complainants seek the enforcement of a lien against this railroad property under the provisions of Code Section 8002 for the satisfaction of indebtedness of a sub-contractor incurred in (1) rental of heavy earth moving equipment used in the making of these improvements, etc., and (2) for repair and replacement of parts and machinery of such sub-contractor used in the performance of this work.

The code section invoked--8002--authorizes a direct lien on the railroad property in favor of 'every person' for claims resulting from work and labor done, or material furnished, or services rendered with reference to such property.

The insistence made by the demurrer was that this code section did not provide a lien for claims arising by reason of either of the aforementioned items.

In a carefully written opinion, after reviewing extensively the decisions of this Court with reference to claims sought to be brought within the terms of this lien statute or other such statutes of our State, the Chancellor overruled the demurrer as to the indebtedness alleged for the rental of the heavy earth moving machinery, but sustained that demurrer as to indebtedness claimed for repair and replacement of parts of machinery of the sub-contractor used in the performance of the work. Each party has appealed from so much of this decree as is unfavorable to it.

S. B. Luttrell & Co. v. Knoxville L. & J. Railroad, 119 Tenn. 492, at page 519, 105 S.W. 565, at page 572, has perhaps not been followed as to everything it held, but it has never been criticized for a statement that repairs on tools, carts and machinery of the contractor's outfit is not labor coming within the aforementioned lien statute. The reason for this is stated in 119 Tenn. at page 517, 105 S.W. at page 571, as being that such tools or machinery of the contractor are not 'consumed in the use thereof' and 'do not go into the building of the roadway, but retain their identity and fitness for future use, saving the limited and gradual wear and tear incident to such use'.

Construing a statute declaring a similar lien with reference to this question this Court said in Southern Construction Company v. Halliburton, 149 Tenn. 319, 335, 258 S.W. 409, 414, this:

'It would be too broad a construction of this statute to fasten such a liability upon the general contractor and the surety for materials which the subcontractor purchased, which were not used up in the job, and remained the property of the subcontractor to be thereafter used by him in other work. Tools would, of course, fall under such a ruling as this.'

In Hamblen Motor Company v. Miller & Harle, 150 Tenn. 602, 609, 613, 266 S.W. 99, 102, the Court held that:

'The claim of $588.55 for tires, repairs, and betterments on the trucks do not constitute materials used upon the work, and, for the reasons stated in the Southern Construction Co. v. Halliburton, supra, under the paragraph disposing of the Church Hill Supply Company's claim for lumber, the item for tires must be disallowed.'

Complainants refer to Rambo v. Naylor Engineering Company, 10 Tenn.App. 203, as authority for its insistence that it has a lien for these repairs and replacements. That was not a proceeding to enforce a lien, but to secure a judgment against a surety on the contractor's bond. The Court noted that this bond obligated payment to every person furnishing material or performing labor 'in and about the construction of said roadway', and that 'the rule of strictissimi juris does not apply in favor of a paid surety upon such bond as is under consideration', but is to be construed with reference to the surety as if it were an insurance contract. Applying that rule of construction, the Court thought that these items were liable against the surety on the bond in that 'they bore a proximate relation to the work in hand'. It thought that the word 'about' in the bond thus rendered the surety liable.

The facts just stated in Rambo v. Naylor, supra, distinguish that case from the holdings in the hereinbefore cited decisions of this Court under the authority of which we conclude that the Chancellor properly sustained the demurrer in so far as claims for repairs and replacements are concerned.

While there is a conflict in the decisions of the State Courts as to whether statutory liens of the character involved here embrace...