Sims v. Southern Surety Co.

• Decision Date: 27 March 1928
• Docket Number: 1425
• Parties: SIMS v. SOUTHERN SURETY CO. [*]
• Court: Wyoming Supreme Court

265 P. 450

38 Wyo. 165

SIMS v. SOUTHERN SURETY CO. ^[*]

No. 1425

Supreme Court of Wyoming

March 27, 1928

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Action by Albert N. Sims against the Southern Surety Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

John P Rusk, for appellant.

Respondent Surety Company was the undisclosed principal of White &amp Johnson Construction Company and liable to plaintiff for the amount of his claim; said construction company was nothing but the agent of the Surety Company; that was the only legal question considered by the court below. In view of the evidence we believe that the rule announced in Franzen v Southern Surety Co., 35 Wyo. 15, is controlling here. Here is a case demanding a relaxation of the rule against reversal if the judgment be supported by any legal evidence. The plaintiff below, a dry farmer, his wife, daughter and three neighbors joined him in the work upon the solicitation of the superintendent of the White & Johnson Construction Company, and thus far have been deprived of their hard earned wages for their entire summer's work; as a matter of fact the evidence supporting plaintiff's claim was overwhelming; Ray B. Sims, superintendent for the Construction Company, bought all supplies, or practically so, for the boarding house and charged them to the account of plaintiff; there was no evidence that plaintiff was a sub-contractor; all men working on any part of both projects were privileged to secure meals at the boarding house; the benefit of the work was accepted by defendant who received payment therefor from the State of Wyoming; the laborers were not employed by plaintiff but by R. B. Sims, Superintendent of the Construction Company and were by him discharged from time to time. We have not submitted authorities because we are satisfied that counsel for defendant in error will not attempt to maintain the proposition that the relation of defendant company did not change from that of a surety to a principal contractor when it took over and assumed its liability on its bond, when its principal defaulted. Justice miscarried in the court below and for that reason the case is here on appeal. Judgment should be reversed.

James A. Greenwood, for respondent.

The appeal should be dismissed for failure to serve notice as required by Sec. 6402 C. S. The specifications of error do not designate, as required by Sec. 6408 C. S., the page of the record on which the judgment complained of is to be found. The appeal record has not been certified to by the clerk of the court below, Hahn v. Bank, 25 Wyo. 467; Culbertson v. Ainsworth, 26 Wyo. 214; McGinnis v. Beatty, 27 Wyo. 287; Fertile Valley Co. v. Kearney, (Wyo.) 263 P. 620; Hansen v. R. R. Co., 29 Wyo. 426. The record does not show the page or identify the judgment complained of, Hansen v. R. R. Co., supra; McGinnis v. Beatty, supra. Judgment rendered on conflicting evidence will not be reversed, Hjorth Co. v. Curtis, 25 Wyo. 20; Bissinger v. Weiss, 27 Wyo. 267; Edwards v. Willson, 30 Wyo. 284; White Co. v. Hamilton, 31 Wyo. 395. There is failure of proof as to assigned claims; the evidence supports defendant's contention that Albert M. Sims was a sub-contractor instead of a day laborer and has been paid in full for his services.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

Albert N. Sims brought this action against the Southern Surety Company. The trial court found that plaintiff had failed to submit satisfactory proof of his claim, dismissed his petition and entered judgment for the defendant. From this judgment the plaintiff appeals. The parties will be referred to herein as in the case below.

One Raymond George entered into a contract with the Highway Department for the construction of a highway in Weston County, Wyoming, known as Federal Aid Projects No. 117 and No. 27-B. George defaulted, and the work under the contract was taken over by the defendant, the Southern Surety Company, which thereafter employed White & Johnston to complete it. That firm may, for the purposes of this case, be considered as merely the agents of the Southern Surety Company. One R. B. Sims, nephew of Albert N. Sims, and agent of White & Johnston, made a contract with plaintiff to help in finishing the work on the highway above mentioned. The nature of the contract is in dispute. Plaintiff claims that he was to receive $ 11 per day for his own time and labor and for the use of his teams and equipment, or a total of $ 1452.00. He further asks to recover for certain work and labor performed in connection with the highway-construction above mentioned, namely, by one John Peterson, in the sum of $ 325; by W. O. Nuttall, in the sum of $ 238; by Otto Brondell, in the sum of $ 94; by Della Sims, in the sum of $ 312; by Gladys M. Sims, in the sum of $ 156, making a total of $ 2577, the petition alleging that these parties were employed by the defendant on this work, that they earned the respective amounts above specified, and that they have assigned their claims to the plaintiff. The defendant denies the making of such contract with plaintiff. It claims that the work and labor done by the plaintiff and by the other workers specified in the petition was done, and that plaintiff's horses and equipment were furnished, pursuant to a sub-contract under which plaintiff was to complete a certain section of such highway-work, receiving as compensation a certain amount for each yard of dirt or rock moved by him. Other defenses, including the defense of payment, were set up, but it is not necessary to consider them, for the reasons that will appear herein. It is not controverted, and the case has been submitted on the theory, that if plaintiff was in fact a sub-contractor, as above mentioned, he cannot recover herein. But it is earnestly contended that the judgment of the trial court is not supported by the evidence on that issue. That is the only point necessary to be determined and we shall accordingly direct our attention thereto.

Plaintiff testified that he was employed as above mentioned in the latter part of May, 1923; that he arrived in Weston County and commenced to work on June 10, 1923, and worked continuously for 132 days; that it was originally agreed that plaintiff should have the option to work by the day or to receive compensation at a certain rate for each yard of dirt or rock moved; that when plaintiff arrived in Weston County he found that the character of the work had been misrepresented; that he, accordingly, refused to take any sub-contract; that it was thereupon...