Moss v. Rowlett

65 S.W. 153, 112 Ky. 121, 1901 Ky. LEXIS 287

• Court: Court of Appeals of Kentucky
• Decided: November 27, 1901
• Status: Published

Opinions

Opinion op the coubt by

JUDGE HOBSON

Afpibming.

Tbe county roads in Henderson county are worked by-taxation, under sections 4313-4325, Kentucky Statutes. By section 4313 a county supervisor of roads is to be appointed for a term of two years. By section 4314 be is to execute a bond, with sureties approved by tbe court, in double tbe amount of tbe bridge and road fund. By section 4315, after 20 days’ notice in writing at each voting place in tbe county, he is empowered to let out to the lowest apd best bidder, who shall give bond with surety, the-working" and keeping in- order of the county roads, the work to be done as- prescribed in the bonds; and by the., consent' of the county judge may designate certain roads and make contracts privately for the working of these. In March, 1898, the supervisor let out to appellee, J. N.. Rowlett, eleven sections of the county roads at the price of $366.05. Two days later he let to Rowlett five other sections for $118.75, making in all $479.80, and took from Rowlett a bond with his co-appellees as sureties for the faithful performance of his contract in a sum not to exceed twice the amount specified. After this, on June 16, 1898, appellant, Reuben E. Moss, Jr., while traveling along one of the sections covered by the bond, driving .three .horses ahead of him, fell through a culvert, and was painfully injured. The culvert was about five feet deep. The bridge over it was about twelve feet long, and gave way 'because .'the sills under it were rotten, ánd not of sufficient strength. 'The defect in the sills could only be seen by going under the culvert. Wagons and other conveyances had been passing over it, and a binder had gone over it a few days before. Appellee had six horses with him, but all six were not on the bridge at one time. Two had passed over. How fast. he was- traveling does not appear. He filed this action .against the contractor and his sureties to recover- $1,500 damages for his injuries.

As -the bond was in double the sum specified, it only bound the obligors on its face for the -payment of twice $479.80, or $959.60. The rule is settled that the recovery on such a covenant must be limited to the amount of the bond. Woods v. Com., 8 B. Mon., 112; Hughes’ Adm’r v. Wickliffe, 11 B. Mon., 202; Carter v. Thorn, 18 B. Mon., 619; 4 Am. & Eng. Eney. Law (2d Ed.), 701. It is insisted for appellants that this rule is changed by section 3752, Kentucky Statutes, which is part of chapter 93, tit. “Office and Officers.” The section is so connected with 3751 and 3753 that it can not be properly understood unless read in •connection with them. The three sections, so far as material, are as follows:

“The obligation required-by law for the discharge of performance of any public or fiducial office, trust or employment, shall he a covenant to the Commonwealth of Kentucky from the person and his sureties that the person shall faithfully discharge the duties of the office, trust or employment, but a bond or obligation taken in any other form shall be binding on the parties thereto according to its terms.” Section 3751.

"Actions may be brought from time to time on any such covenant or bond in the name of the Commonwealth, for her benefit, or for that of any county, corporation or person injured by a breach of the covenant or condition, at the proper costs of the party suing, against the parties jointly or severally, together with the personal representatives, heirs and devisees or distributees of such of them as may be dead; and the recovery against principal and surety shall not be limited by the amount of the penalty named in such bond.” Section 3752,

“No officer from whom a covenant is required shall enter upon the duties of his office until the same is given.” Section 3753.

The covenant or bond referred to in section 3752 is evidently the obligation required by law for the discharge or performance of any public or fiducial office, trust, or employment provided for in section 3751, and which an officer from whom a covenant is required must execute, under section 3753, before entering upon the duties of his office. The words “any public or fiducial office, trust, or employment,” do not, by any fair construction, include those who make contracts with a county for a valuable consideration. If a man should undertake with the county by contract to furnish fuel for heating’ the court house,, or timber to repair a bridge, or rock to cover a highway, it can'not be said that he would exercise any public or fiducial office, trust, or employment.' The roads, under the statute, might be let publicly or privately. The public contractor and the private contractor stand precisely alike. To hold appellees within these sections, it would be necessary to hold all persons who make contracts with the county, such as for the erection of bridges, court houses, caring for blind persons, and the like, to be within its operation. The county as a quasi, corporation, makes many contracts, and the persons who contract with it stand just as they do in contracts made by them with other persons, natural or artificial. We conclude, therefore, that appellees are liable under their bond only according to its terms and to the extent of the amount specified in it. It remains to inquire what this liability is. This must be determined by the statute under which the bond was given, which is as follows: “The contractor’s bond required -by the preceding section shall be given to the Commonwealth for the benefit of the county, with good surety, to be approved, and attested by the supervisor or judge in at least double the amount of the value of the work to be done, and conditioned for the faithful performance of the work within the prescribed time, and shall be returned' by the supervisor or judge to the county court at its next ensuing term, which fact shall be.noted of record, and the bonds kept by the clerk of the court in his vault, labeled and marked “'Contractors’ Bonds.’ Similar bonds shall be taken for work let at private contract, and shall be returned and kept as the other contractor’s ‘bonds; certified copies of said bonds shall be competent as evidence. For any breach of a contractor’s bond, he shall be liable to a fine of from ten dollars to one hundred dollars, and to action for damages by all parties aggrieved thereby. Upon the filing of the record of the supervisor or overseer, that any contract- or has failed to comply with his contract, or upoh information or oath of any person, or on his own knowledge, that any road or bridge, embraced in said contract, is out of repair, the judge of the quarterly court of said! county shall forthwith issue from and make returnable to his court a warrant, in.the name of the Commonwealth, against the delinquent contractor, and when executed, proceed forthwith to try the same as other Commonwealth warrants are tried. The sureties of' all delinquent road and bridge contractors shall be liable for all fines imposed and judgment for damages rendered against their principal under this act. All parties proceeded against, as hereinbefore provided, shall be entitled to a trial by a jury.” Section 1316. It is insisted for appellants that as the statute provides that for ia breach of the contractor’s bond he shall be liable to a fine of from $10 to $100, and to action for damages by all parties aggrieved thereby, appellant Moss, who has been injured by reason of the defectiveness of the bridge, being aggrieved thereby, mayi maintain the action for damages. But, in view of the long-recognized rule in this Stare and the other provisions of the act, we can not concur in this conclusion. The bond is only required to be executed in double the amount of the value of the work to be done, and to be conditioned for the faithful performance of the work within the prescribed time. The act contemplates that a bond shall be given on each contract. The fact that in this case a number of contracts were made, and all included in one bond, is not material. We must determine the legislative intent from the language it used, having in mind the law of the State as it then stood. It will be observed that the average value of the work to the section undertaken by Rowlett was about $30. If the Legislature had in mind making the contractor liable for damages such as are here sued for, it is incredible that it would have provided a bond so inadequate, which on its face would lead the obligors to sign it without suspicion that they were incurring such a liability. If appellant Moss may recover on this bond, then every one who is delayed in his business or put to expense by reason of defects in the road may likewise recover; and the result .would be that these bonds would be more onerQus than perhaps any other known to the law, notwithstanding the fact that they are only conditioned for the faithful performance of the work within the prescribed time in double the value of the work, which on this road was perhaps not $75. Previous to the passage of this act, neither the judge or justices composing the county court nor the county or the road overseer were liable to an action for damages by a traveler on a highway injured by reason of a defect in it. Wheatly v. Mercer, 9 Bush, 704; Hite v. Whitley County Court, 91 Ky., 168, 12 R., 764, 15 S. W., 57, 11 L. R. A., 122. Chapter 110, Kentucky Statutes, provides! two systems of working the roads — -one by an overseer, as before; the other by taxation. In the latter system, the supervisor and the contractor seem to take the place of the overseer under: the ’old system. The duties required of the contractor are substantially the same as those of the overseér. Kentucky Statutes, section 1311. Section 1306 reads thus: “The fiscal court of each county shall have general charge and supervision of the public roads and bridges therein^ and shall prescribe necessary rules and regulations for.repairing and keeping the same, in order and for the proper management of all roads and bridges in said county under and subject to the provisions of this act. The public roads shall be maintained either by taxation or by hands allotted to work thereon or both in the discretion of the fiscal court of the respective counties as hereinafter provided,” / s the contractor simply takes the place of the overseer, it would -seem that the Legislature contemplated by section 4316 the requirement of a bond from him for the perforan anee of the same duties, and not with a view of extending his liability beyond the overseer’s. It is very important to the counties where the roads are worked by taxation that the work should be done at reasonable rates, and, if onerous liabilities were laid upon the contractor, it would entirely defeat the purpose of the statute. The Legislature does not appear to have had in mind anything more than the substitution of a bonded contractor for an overseer. We conclude, therefore, that the words, “action for damages by all parties aggrieved thereby,” do not refer to a cause of action which could not be maintained against a county overseer. In Coleman v. Eaker (111 Ky., 101), (23 R., 512), (63 S. W., 484), it was held that the supervisor was not liable on his bond given under section 4314 for damages in cases like this. The covenants of the two bonds are nob dissimilar in character, and we think the same rule -should apply to -both. The thing in- the mind of the Legislature was the working of the county roads. No liability had existed for defects in the -roads causing injury to travelers. The substitution of the tax system for the labor system should not be held to change the rule on this subject without distinctly expressed legislative intention to -do so, for in the end the liability would indirectly fall on the county in the increased price that would have to be 'paid the contractor. It is evident the Legislature supposed that a bond by the contractor in double the amount of the work to be done would furnish a sufficient indemnity. This shows that the bond looked primarily -to the work, and the Legislature did not design to extend the liability of the contractor to such causes of action as that here sued for. The liability of a surety is of strict law, and is not to be stretched by implication.

Judgment affirmed.

Judge DuRelle dissents from the opinion on the second question decided, but concurs in the first. Judge Guffy dissents on both.