Wade v. Gray

• Decision Date: 10 March 1913
• Docket Number: 15,761
• Citation: 61 So. 168,104 Miss. 151
• Court: Mississippi Supreme Court
• Parties: R. T. WADE v. R. A. GRAY

61 So. 168

104 Miss. 151

R. T. WADE v. R. A. GRAY

No. 15,761

Supreme Court of Mississippi

March 10, 1913

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by R. A. Gray against R. T. Wade. From a judgment for plaintiff defendant appeals.

Affirmed.

Wells &amp Wells, for appellant.

The amount involved in this suit is trivial, but the case was brought here for the purpose of obtaining a decision of this court on the one question we propose to discuss, to wit:

Is the contractor with the county for the working of a public road liable for damages to one who is injured by the negligent working of said road? or, to put the question more fully, is a road contractor, under contract with any county of the state of Mississippi for the working of the public roads of said county, or a part thereof, under sections 4465 to 4470 of the Code of Mississippi of 1906, liable in damages for injuries sustained by any person using said road; which damages are proximately caused by the negligence of such contractor in so working said road. This precise question has not been settled by this court unless it is done in the case of Redditt v. Wall, decided by this court May 22, 1911, and reported in the 55 So. 45. That was a case in which the suit was against Wall, a contractor, and his bondsmen for injuries received by Redditt while driving over the public road which Wall had contracted to work.

The suit then was on the bond against the principal and the sureties, while the case at bar is only against the contractor. The court here held that the suit on the bond could not be maintained, because the condition of the bond was to secure the county only, and that bond cannot be made liable to any individual for the negligence or want of skill exercised by the contractor in his work. The court goes out of the way to utter a pure obiter dictum, "Any member of the public may possibly have his recourse against the contractor personally." But that question was not raised in the case and the dictum has no binding force on our courts. The court in the case of Redditt v. Wall, supra cites the case of Brabhan v. Supervisors, 54 Miss. 363, which holds that the right to "maintain suit like that against a county is not only outside the contemplation of the statutes, but is opposed by every consideration of sound policy;" and the court in the case of Redditt v. Wall uses the same language and further says, "If in addition to being required to give bond for the efficient performance of his contract with the county, the bond of the road contractor should also be held as an indemnity to members of the public using the highway, against damages occasioned by negligence, we venture the assertion that working the roads by contract would soon be a thing of the past." Now, the principal in the bond is primarily liable and the sureties secondarily liable, and if holding that the sureties are not liable, because against public policy, much more would it be against public policy if the principal, the contractor, were held liable. Indeed this case is here for the purpose of ascertaining if the contractor is so liable, and if they are, the working of the public roads by contract will be a thing of the past.

Schneider v. Cahill (Ky.), 127 S.W. 143, 27 L. R. A. (N. S.) 1009, holds as follows, according to its syllabus:

"Where a county is not liable for injuries caused by defects in its highways, one who contracts with it for the construction of a highway is not liable for injuries to a traveler caused by his leaving an open, unguarded ditch therein during the progress of the work, which made it unsafe for public travel." Citing Moberly v. Carter Co., 5 y. L. Rep. 694; Hite v. Whitley, 91 Ky. 168, 11 L. R. A. 122; Wheatley v. Mercer, 9 Bush, 704; Hardwick v. Franklin 120 Ky. 78; Sheppard v. Pulaski County, 13 Ky. L. R. 672.

Moss v. Purlett, 112 Ky. 121, holds that the contractor is not liable on his bond for injuries to travelers from defects in road, it being manifest that it was not intended that the liability of the contractor where the system of working roads by taxation is adopted shall be any greater than the liability of the county.

Blue Grass Traction Co. v. Grover, 135 Ky. 685, 123 S.W. 265, holds as follows: "A county is not liable for injuries to a traveler on a defective county highway; the county being an arm of the state government exercising a part of the power of the state created by the legislature for that purpose."

"As to Fayette county, if it had maintained the bridge it would have been under no obligation to pay appellee for the injury to his horse; such damages cannot be said to be reasonably within the contemplation of the parties when it was contracted that the company would maintain the bridge free of cost to Fayette county, etc." See also Kansas City v. O'Connell, 99 Mo. 357.

The doctrine is well settled in this state that the county cannot be made to respond in damages where there has been an injury occasioned by reason of defects in the highway. See the following cases: Brabhan v. Hinds County, 54 Miss. 363; Redditt v. Wall, 55 So. 45.

Now, the only contract which Wade made was with the county and all the obligations arising therefrom are between the parties to the contract. There can be no liability on the part of either except to the other, unless it is on the theory of subrogation, or on the theory that the plaintiff in this action is a privy to the county. The county can claim nothing from Wade except the things he obligated himself to do in his contract. In section ten of the contract Wade bound himself to the county to work the roads in a prompt and efficient manner according to specifications, and agreed with the county that if he did not do so the county could have it done at his expense. There is no contract upon the part of Wade that he will be responsible to anyone, the county or anyone else, for his failure to keep the road in repair.

In 9 Cyc. 372, the obligations of parties to contracts is set forth in the following language: "The obligation and duty arising out of a contract are due only to those with whom it is made."

"The reason for the rule that privity of contract is necessary to an action founded on a breach of contract is that otherwise a man's responsibility for not carrying out his agreement with another would have no limit; there would be no bounds to action if the ill effect of the failure of a man to perform his agreement could be followed down the chain of results to the final effect."

The case of Marvin Safe Co. v. Ward, 46 N. J. L. 19-24, holds as follows: "The object of the parties in inserting in their contract specific undertakings, with respect to the work to be done, is to create obligations and duties inter sese. If third persons can acquire a right in the contract, in the nature of a duty to have it performed as contracted for, the parties will be deprived of control over their own contract."

A similar question to the one at bar was raised and decided in the case of Wilkinson v. Light, Heat & Water Co. of Jackson, found in 78 Miss. 389. There was a contract between the city of Jackson and the said waterworks company, the duties of both being enumerated explicitly in said contract. Among other things, it was provided that the water company should at all times furnish a certain water supply to be used in the case of fires.

Wilkinson's house took fire and the pressure was wholly insufficient to throw water on the fire, and thus his house was a total loss. He brought suit against the water company for damages, and the court denied the relief, on the ground that there was no privity of contract between the water company and the taxpayers or inhabitants "and that the fire hydrants of the company were rented by the city for use by its own fire department and in performance of its governmental function, and as a separate entity from the taxpayers and inhabitants. We fully recognize the rule of law as to privity of contract invoked by counsel for appellee, as also the exemption thereto contended for by counsel for appellant, that a person not a party to the contract may maintain an action thereon if the contract clearly and explicitly shows, that it was made for his benefit. In this case, however, we are clearly of the opinion that the contract before us imposes no public duty on the part of the water company to a citizen or inhabitant for the nonperformance of which an action of tort can be maintained, and that the contract does not show, in express terms or by fair intendment, that it was made for the benefit of the citizen or inhabitant in the sense that would enable him to maintain an action thereon. The demurrer was properly sustained. Let the judgment of the circuit court be affirmed."

Applying the doctrine laid down in that case to the one at bar, we say that the contract between Wade and the county does not show in express terms or by fair intendment, that it was made for the benefit of the citizen in the sense that would enable him to maintain an action thereon. There is no privity between Gray and the county which would give him a right of action on the contract. See also on this point 9 Cyc. 374, note 88.

Parker v. Jeffrey, 27 Ore. 186, holds, "To entitle a third person to recover upon a contract made between other persons, there must not only be an intent to secure some benefit to such third person but the contract must have been made and entered into directly and primarily for his benefit."

This was a suit for material furnished to a contractor with the city to build a sewer against the bondsman, which was entered into to secure the city harmless from any loss or damage resulting from careless or negligence in doing the work.

Montgomery v. Spencer, 50 P. ,...