Standard Acc. Ins. Co. v. Dodd

• Decision Date: 09 June 1932
• Docket Number: 6 Div. 179.
• Parties: STANDARD ACC. INS. CO. v. DODD.
• Court: Alabama Supreme Court

142 So. 574

225 Ala. 285

STANDARD ACC. INS. CO. v. DODD.

6 Div. 179.

Supreme Court of Alabama

June 9, 1932

Rehearing Denied June 23, 1932.

Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.

Action by A. B. Dodd, doing business as the Jervis Foundry & Machine Company against the Standard Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

James &amp Stewart, of Cullman, for appellant.

St John & St. John, of Cullman, and Eyster & Eyster, of Decatur for appellees.

GARDNER J.

The suit is by the appellee against appellant as surety on a road contractor's bond executed pursuant to statute. Gen. Acts 1927, p. 356, § 28. The contractor had sublet a portion of the road work to one Myrtle Boyd. The subcontractor owned and operated, in the progress of this work, a "tractor and steam shovel," which constitutes a single machine composed of many parts. While engaged in the work this machine became damaged and disabled, and its repair is referred to as a "hurry up job."

The shaft or axle, which was from six to eight feet long and about six inches in diameter, broke and had to be replaced. It cost $65. The old parts, such as sprockets and the like were placed back on this new shaft and the tractor put in condition to proceed with the work. The oil pump also required attention, but labor was all that was necessary for its adjustment, no material being used therefor. The work was referred to as a "running repair *** fixed while it is in action." Plaintiff did the work and furnished the material, working "night and day" a period of sixty hours, until the job was finished. The work and material amounted to a total of $188, all of which represented labor except the $65 for the shaft. The value of the machine was $16,000.

The original contractor, as a witness for defendant, testified that on "a value basis the shaft was just insignificant and small in comparison to the value of the entire equipment or machinery, but it was very essential to its operation." The same witness also stated that after the repair the machine was used in the work for only ten working days when the subcontractor abandoned the job and the machine was moved away.

Appellant insists the machine was a part of the subcontractor's equipment and its repair does not come within the protection of the bond, placing much reliance upon Union Indemnity Co. v. State, 218 Ala. 132, 118 So. 148; American Surety Co. v. Mitchell (Ala. Sup.) 140 So. 429; Singer v. Anniston Hardware Co., 222 Ala. 620, 133 So. 910; United States F. & G. Co. v. Andalusia Mfg. Co., 222 Ala. 637, 134 So. 18. The authorities, however, with the exception of the first above named, deal with the question of equipment and not a repair thereto, and are therefore not here of controlling importance.

In Union Indemnity Co. v. State, supra, it was pointed out that questions as to allowance for repairs on the contractor's equipment are attended with much difficulty dependent upon the facts in each particular case, and it was there held that "such extraordinary repairs," as there involved, for the purpose of which the equipment was shipped to another state, did not come within the protection of the bond.

In a later case (United States F. & G. Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622, 627) many authorities were cited and reviewed. It was pointed out that bonds of this character did not cover material which constitutes a part of the permanent equipment of the contractor, nor major repairs thereon. The opinion proceeds: "But it does include such small and incidental repairs [on its permanent equipment] as result from ordinary wear and tear of the appliances used in performing the contract. *** It is difficult to draw a formula which will conform to all the decisions of the various courts or their discussions on the subject. Our co...