State ex rel. and to Use of Winebrenner v. Detroit Fidelity & Sur. Co.

• Citation: 32 S.W.2d 572,326 Mo. 684
• Parties: The State at Relation and to Use of Frank Winebrenner v. Detroit Fidelity & Surety Company, Appellant
• Decision Date: 18 November 1930
• Court: United States State Supreme Court of Missouri

32 S.W.2d 572

326 Mo. 684

The State at Relation and to Use of Frank Winebrenner v. Detroit Fidelity & Surety Company, Appellant

Supreme Court of Missouri

November 18, 1930

Transferred from Kansas City Court of Appeals.

Affirmed.

Dumm & Cook for appellant.

The court erred in holding that defendant, as surety on a road bond given under Laws 1925, page 127, is liable for team hire used by the contractor in performing his contract. Kansas City to Use of Brick Co. v. Youmans, 213 Mo. 180; Wiss v. Indemnity Co., 219 Mo.App. 568, 282 S.W 164; State ex rel. Kingsley v. Construction Co., 220 Mo.App. 244, 284 S.W. 150; State ex rel. Winebrenner v Fidelity & Surety Co., 300 S.W. 833; State ex rel. Gratz v. Fidelity & Surety Co., and State ex rel. Hernleben v. Fidelity & Surety Co., 21 S.W.2d 494.

Embry & Embry for respondent.

(1) The case of State ex rel. Kingley v. Carterville Const. Co., 284 S.W. 150, cited by appellant, deals with the question of recovery for use of a traction engine. This action is for recovery for labor of a man and his team. (2) The term "labor" includes team work. McElwaine v. Hosey, 135 Ind. 489; Mabie v. Sines, 92 Mich. 545; Johnson v. Citizens Trust Co., 136 N. E. (Ind.) 50; Multnomah County v. Fidelity & Guaranty Co., 87 Ore. 198, 170 P. 525. "Within the meaning of a statute giving a lien to laborers and persons furnishing materials to contractors or subcontractors labor done by a man's team may be fairly regarded as labor done by him, no right arising to anyone out of its services except to him." Chicago N. E. R. Co. v. Sturgis, 44 Mich. 541; E. R. Co. v. Sturgis, 44 Mich. 544. "But the labor done by a man's team may be fairly regarded as labor done by him within the meaning of this statute." Hogan v. Cushing, 49 Wis. 169.

OPINION

Atwood, J.

This case has been transferred by the Kansas City Court of Appeals of its own motion to this court under the provisions of Section 6, Amendment of 1884, Article VI, Constitution of Missouri, its decision therein (300 S.W. 833) being deemed in conflict with a prior decision of the Springfield Court of Appeals in the case of State of Missouri ex rel. Jay Kingsley v. Carterville Construction Company and Southern Surety Company, 220 Mo.App. 244, 284 S.W. 150. In the language of the constitutional provision above cited we " must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process."

Appellant succinctly states the case as follows:

"Cole Jobe entered into a contract with the State Highway Commission of Missouri for the construction of certain road work in Moniteau County, Missouri. Jobe, the contractor, thereupon entered into a bond to the State of Missouri, in the sum of $ 42,204.12, with this defendant as surety, conditioned for payment of materials, labor, oil and gasoline used in or consumed in the construction of said work, and for all labor performed in such work, whether by subcontractor or otherwise.

"Pursuant to said contract, the contractor, Cole Jobe, hired plaintiff, Frank Weinbrenner, and a team of horses, at and for the total price of forty-five cents per hour. The plaintiff and his team earned by said employment the sum of $ 118.10. Thereafter, the contractor, Cole Jobe, neglected or refused payment of the entire amount due plaintiff by reason of said employment of himself and team, and this suit was instituted against the surety on the bond to recover the amount due plaintiff for his own labor and for team hire.

"Defendant filed its motion to make plaintiff's petition more definite, and certain, in which motion it was asked that plaintiff set out the amount due him for his labor and the amount due plaintiff for team hire. The plaintiff contends that the hiring of himself and his team was as a unit, and inseparable, and that in truth he can not set out how much is due him for his labor and the amount due him for team hire. Thereupon, the court overruled the motion to make more definite and certain, and the defendant thereafter demurred to the petition, for the reasons set out in the motion to make more definite and certain, based on the theory that the defendant surety company is not liable under the conditions of the bond for team hire. The demurrer was overruled, and the defendant refused to plead further. Thereupon, the court rendered judgment for the plaintiff in the sum prayed for in his petition. The defendant appeals to this court to determine whether or not the surety on a contractor's bond, based on Section 1040, Laws 1925, page 127, is liable for team hire."

Above-mentioned Section 1040, Revised Statutes 1919 (as amended, Laws 1925, p. 127), is as follows:

" It is hereby made the duty of all officials, boards, commissions, commissioners, or agents of the state, or of any county, city, town, township, school, or road district in this State, in making contracts for public work of any kind to be performed for the state, county, town, township, school or road district to require every contractor for such work, to execute a bond to the state, county, city, town, township, school, or road district, as the case may be, with good and sufficient sureties, and in an amount to be fixed by said officials, boards, commissions, commissioners or agents, and such bond, among other conditions shall be conditioned for the payment of materials, lubricants, oil and gasoline used in or consumed in the construction of such work and for all labor performed in such work, whether by sub-contractor or otherwise."

Plaintiff's petition recited that a copy of defendant's bond "certified by the Secretary of the State Highway Commission of Missouri is hereto attached and herewith filed and marked 'Ex. A,' said State Highway Commission of Missouri being in charge of said bond." This exhibit does not appear in the record here. The record does show that counsel stipulated in open court that the contract between Cole Jobe and the Missouri State Highway Commission mentioned in the petition was entered into, that the bond sued on was entered into, that the services set forth in the petition were rendered, that the charges therefor were the customary and reasonable charges for such service, that demand was made for payment and refused, all as alleged in the petition. The petition states, and counsel for appellant in the foregoing statement concedes, that the condition of the bond substantially followed the terms of the statute. This being a statutory bond it will be construed as though the provisions of the statute were written into it. [Fogarty v. Davis, 305 Mo. 288, 293, 264 S.W. 879.]

The only point presented in appellant's original brief is:

"An employee of a road contractor cannot recover from the surety on the contractor's bond for use of teams in construction of highways."

The only authorities cited in support of this proposition are Laws 1925, page 127, section 1040, supra, and State ex rel. Kingsley v. Carterville Construction Company et al., 220 Mo.App. 244, 284 S.W. 150, by reason of which decision the instant case has been certified to this court. In supplemental statement, brief and argument counsel for appellant presents additional citations as follows: Kansas City to use of Kansas City Hydraulic Press Brick Company et al. v. Youmans et al., 213 Mo. 151, 180, 112 S.W. 225; Wiss v. Royal Indemnity Co., 219 Mo.App. 568, 282 S.W. 164; State ex rel. Hernleben v. Detroit Fidelity & Surety Co., and State ex rel. Gratz v. Detroit Fidelity & Surety Co. (K. C. Ct. Apps.), 21 S.W.2d 494.

The Hernleben and Gratz cases were decided by the Kansas City Court of Appeals after the instant case was certified here, and counsel for appellant says that the court in those cases has reversed its ruling in this case. We do not think so. The controverted items in the Hernleben and Gratz cases were automobile truck parts and labor for repairs upon trucks used by the contractor as a part of his plant in the performance of his road contract. The contention there made and ruled was that these items fell within the term "materials used in the construction" of the highway. It was not claimed that they fell within the classification of "labor performed in such work." The most that could be said was that plaintiffs performed some labor upon machinery included in the contractor's plant and by him used in the performance of his contract. The contention in the instant case is that the earnings of plaintiff and his team fall within the term "labor performed in such work, whether by subcontractor or otherwise." The distinction is important because of the marked difference in scope and meaning of the terms construed. The Wiss case, supra, followed our decision in the Youmans case, supra, which, upon the ruling here cited as authority, was presented on the theory that the contested items were materials used or consumed, and not labor performed, in the work. These decisions are, therefore, not controlling in the case now under consideration.

Turning to the case first cited by appellant, State ex rel. Kingsley v. Carterville Construction Co. et al., supra, we find that it was a suit by an employee of a subcontractor on the bond of an original road construction contractor. The bond was given as required by Section 1040, Revised Statutes 1919. The opinion states: "The construction company sublet to a firm styled Williams & Ward, and this firm employed plaintiff to work on the road. Plaintiff put in 220 hours pulling a grader with his traction engine and was to receive the agreed compensation of $ 2 per hour for this service. The construction company paid Williams & Ward, but this firm did not pay plaintiff, and this suit upon the bond followed." In support of its ruling that plaintiff was entitled to recover only the value...