Robbins v. City of Sheffield, 8 Div. 970.

• Decision Date: 13 April 1939
• Docket Number: 8 Div. 970.
• Citation: 188 So. 874,237 Ala. 674
• Parties: ROBBINS v. CITY OF SHEFFIELD.
• Court: Alabama Supreme Court

188 So. 874

237 Ala. 674

ROBBINS v. CITY OF SHEFFIELD.

8 Div. 970.

Supreme Court of Alabama

April 13, 1939

Rehearing Denied May 25, 1939.

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action by Dewey Robbins, doing business under the firm name of Tri-Cities Plumbing, Electric & Supply Company, against the City of Sheffield, for negligent failure to require bond of contractor for protection of laborers and materialmen. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

R. L Polk, of Sheffield, and J. E. Delony, Jr., of Tuscumbia, for appellant.

W. F McDonnell, of Sheffield, for appellee.

GARDNER Justice.

The Universal Electric Construction Company entered into a contract with the city of Sheffield for the construction of an electric distribution system for said city. Plaintiff furnished the contractor, Universal Electric Construction Company, with labor, materials and supplies for and in the construction of the electric distribution system for the city, for which there is a balance due and unpaid.

The Act of February 8, 1935, General Acts 1935, page 70, provides in part as follows: "Section 1. Any person, firm or corporation entering into a contract with the State or any County or municipal corporation or sub-division thereof in this State for the repair, construction or prosecution of any public buildings or public work, highways or bridges, shall be required, before commencing such work, to execute a performance bond, with penalty equal to 50 percent of the amount of the contract price, and in addition thereto, another bond with good and sufficient surety, payable to the State, County or municipal corporation or subdivision, letting the contract, in an amount not less than 50% of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials, feed-stuffs or supplies for or in the prosecution of the work provided for in such contract, and for the payment of reasonable attorneys fees, incurred by successful claimants or plaintiffs in suits on said bond; and any person, firm or corporation that has furnished labor, materials, feed-stuffs or supplies for or in the prosecution or repair of any public building or public work, highways or bridges, and payment for which has not been made, shall be authorized to institute an action upon said bond in his or their name or names and to have their rights and claims adjudicated in such action and judgment rendered thereon; provided, however, that no suit shall be instituted on said bond until after forty-five days written notice to the surety thereon of the amount claimed to be due and of the nature of the claim."

The complaint here is against the city of Sheffield, and seeks recovery upon the theory that the city was negligent in failing to require the contractor to give the bond, provision for which is found in the above cited Act, for the protection of laborers and materialmen, which bond plaintiff presumed had been given, and in reliance upon such presumption furnished the labor and material to the contractor, for which a large balance remains unpaid. The city's demurrer to the complaint being sustained, plaintiff took a non-suit and appeals.

The Florida court in Phillips & Co. v. Board of Public Instruction for the County of Pasco, 98 Fla. 1, 122 So. 793, 64 A.L.R. 675, construed language of similar import as that involved in our Act as placing the initiative upon the contractor as to the execution of the required bond, and not upon the board to demand its execution. And the further holding was to the effect that as this related to a matter of public record, the one furnishing the labor and material might readily ascertain whether or not the bond had been given, and if he furnished such labor and material when bond has not been given, his negligence in doing so with knowledge of such fact or without informing himself as to the true situation, is the cause of his loss and no recovery may be had against the public body. Such holding is likewise supported by other authorities. Woodward Lumber Co. v. Grantville, 13 Ga.App. 405, 79 S.E. 221; Blanchard v. Burns, 110 Ark. 515, 162 S.W. 63, 49 L.R.A.,N.S., 1199; Rock Island Lumber & Mfg. Co. v. Elliott, 59 Kan. 42, 51 P. 894; Electric Supply Co. v. City of Muskogee, 171 Okl. 130, 42 P.2d 140; Pike County Board of Com'rs v. Norrington, 82 Ind. 190.

But leaving that theory to one side and undetermined, we prefer to base our conclusion upon what we consider a broader and more fundamental principle.

Counsel for plaintiff, with commendable candor, concede that the weight of authority supports the view that in the absence of a statute expressly creating a cause of action against it, the public body is not liable to laborers or materialmen for failure to require a public contractor to give a bond as provided by acts of the character above noted. Numerous authorities are found cited in the note to Phillips & Co. v. Board of Public Instruction, 64 A.L.R. pages 679 et seq. Varying reasons for non-liability have been assigned.

The minority view is illustrated by the decision of the Oregon court in Northwest Steel Co. v. School District, 76 Or. 321, 148 P. 1134, L.R.A.1915F, 629, Ann.Cas.1917B, 1086, where opposing authorities are reviewed.

For the purpose of discussion, and for that purpose only, we assume that the contract here considered comes within the influence of the Act of 1935, and that, as plaintiff contends, the duty rested upon the city to demand of the contractor the statutory bond, and that the city was negligent in its failure to require its execution. Yet we think, upon fundamental principle, the city cannot be held in damages for this misfeasance. As stated by counsel the majority view in large part is rested on the theory that "the public body, (to use the language of the brief) or its officers representing it, were performing a public duty, or that the public body is an arm of the State government, and since the State cannot be held liable for the negligence of its agents in the performance of its duty, except by express statute, a subdivision of the State cannot be held liable, or that the public body cannot be held liable in damages for the acts of its agents." The cases supporting this view are to be found cited on page 680 of 64 A.L.R.

We consider this theory entirely sound and applicable to the instant case.

Counsel for plaintiff present an ingenious argument differentiating this case from the majority view upon the theory that the construction contract related to an electric distribution system which was a corporate or business enterprise, and that the city in engaging therein was not in the exercise of a governmental function, citing Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; Montgomery v. City of Athens, 229 Ala. 149, 155 So. 551. Therefore, it is insisted, as the electric distribution system was a corporate enterprise, the reasoning of the authorities, to which reference is made, is without application.

Upon cursory consideration, the argument is most plausible. But we think a closer scrutiny discloses that it is untenable. Too much is assumed when it is said that because the...