Opinion
No. 23134
Decided December 9, 1931.
Public contracts — Surety bond — Labor performed in carrying forward and completing contract — Section 2365-2, General Code — Surety liable to sub-contractor furnishing trucks and drivers to haul dirt.
Where, upon a state highway contract, the principal contractor in the performance of his contract has employed a subcontractor to transport dirt from one point to another upon such state highway, by an agreement which provided for the use of two trucks together with the drivers thereof, the sub-contractor to pay for all gasoline and oil and to keep the trucks in repair, the compensation to be paid the subcontractor for the furnishing of such drivers and trucks in the performance of such labor to be at the rate of $2.50 per hour per truck, the hauling of dirt with the trucks and men upon such state highway contract constitutes "labor performed" in carrying forward, performing and completing such contract, within the meaning of Section 2365-2, General Code, and the surety upon the bond of the original contractor is liable for such labor, under the provisions of the statute.
CERTIFIED by the Court of Appeals of Franklin county.
This case was certified to this court by the Court of Appeals of Franklin county, finding that the judgment entered by it was in conflict with the judgment pronounced on the same question by the Court of Appeals of Tuscarawas county, of the Fifth Appellate District, in the case of Ohio Savings Trust Co. v. Schneider, 25 Ohio App. 259, 159 N.E. 338, and also in conflict with the judgment pronounced by the Court of Appeals of Hamilton county, of the First Appellate District, in the case of Cincinnati Quarries Co. v. Hess, 28 Ohio App. 340, 162 N.E. 686.
The original action in the court of common pleas was begun by Elwood M. Dill, defendant in error, against the Metropolitan Casualty Insurance Company of New York, to recover as a sub-contractor under the statute upon a claim for hauling dirt, with two trucks owned by him, under an agreement with one J.A. Burroughs, who had a contract with the state of Ohio for the construction of section H of the McConnelsville-New Lexington road, intercounty highway No. 354, in Bearfield township, Perry county, Ohio, said Burroughs having given bond as required by Sections 2365-1 to 2365-4, General Code, to secure the performance of the contract and payment of "all lawful claims of sub-contractors, material men and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract." Section 2365-4.
The plaintiff in error, the Metropolitan Casualty Insurance Company, had become surety upon this bond.
Pursuant to the agreement between Burroughs and Dill, it was contracted between them that Dill was to furnish two trucks, with drivers, to do hauling in the performance of Burroughs' contract with the state of Ohio, by transporting, by truck, dirt from one place to another as was required in the construction of the road. Pursuant to this contract, Dill furnished the men and trucks, and they worked on the job, hauling dirt at the rate agreed upon, $2.50 per hour for each truck and driver, Dill being required to furnish the oil and gasoline and incidental repairs on the trucks.
The common pleas court rendered a judgment for Dill in the sum of $780.09, reaching that result, as we construe the record, by finding that the drivers of the two trucks in the delivery and transportation of the dirt worked 330 hours at the rate of $2.50 per hour, making the sum of $825, deducting $13.66 for board, repairing and oil, leaving a balance of $811.34. There was, however, the hauling of some other material, such as coal and a Ford body, consuming twelve and one-half hours, which time, at the specified rate, the court deducted from the $811.34, leaving a balance of $780.09.
Burroughs did not complete his contract with the state of Ohio and the surety company stepped in and completed the same. Burroughs not having paid Dill according to his contract, Dill, as the subcontractor, pursuant to the terms of Section 2365-3, General Code, duly notified the surety company at its home office in New York, setting forth his demand and asking payment as provided by statute.
As above set forth, the court of common pleas, upon hearing, a jury being waived and trial being to the court, found in favor of Dill for $780.09. Motion for new trial was overruled, judgment was entered and error was prosecuted to the Court of Appeals, in which court the judgment of the trial court was affirmed. The case is certified to this court for review, as heretofore set forth.
Messrs. Bennett, Westfall Bennett, for plaintiff in error.
Mr. Clarence L. Corkwell and Messrs. Knepper, White, Smith Dempsey, for defendant in error.
The question involved in this case requires a construction of Section 2365-2, General Code, to wit, whether hauling of dirt, with trucks and men, at a given rate per hour, upon a state highway contract, constitutes "labor performed" in the carrying forward and completing of such contract, within the meaning of said section, and whether the surety upon the bond of the original contractor liable for such labor may be held, after proper notice as required by statute.
While this case was tried to the court, a jury being waived, there were some slight contradictions in the evidence; yet the same were not so material but that the agreement between the head contractor and the sub-contractor is not essentially in dispute. It is claimed in the brief of counsel for plaintiff in error that Dill "did not enter into any contract with Burroughs to haul a certain quantity of dirt or to do any specified quantity of work or to remove dirt from a certain portion of the excavation which was being done by the steam shovel on this job." However, both courts below construed the contract as one for the transportation, by truck, of dirt from one place to another for use in the construction of the road; and there is evidence in the record tending to support such view, as shown by the testimony of Elwood M. Dill, Luther Dill and W.A. Foraker, and the nature of the construction contract between the state and the principal contractor.
The agreement with Burroughs was that Dill was to furnish two trucks, with drivers for each truck, for which a charge was to be made of $2.50 per each hour the trucks were used, and that the trucks were to haul dirt from place to place on this particular highway job, and that Dill was to pay for the maintenance of the trucks and for all gasoline and oil required to operate the same. The ultimate object and purpose to be attained by the agreement upon the part of Burroughs, the chief contractor, was the transportation, by truck, of dirt from one place to another, as might be required in the construction of this road and the fulfillment of his contract. Dill on his part was required to furnish the trucks and the drivers, to keep the trucks in repair, and to furnish all gasoline and oil, and in consideration of so doing he was to receive the compensation of $2.50 per hour per truck, so long as the same and their drivers operated in the discharge of the service required by the terms of the contract, to wit, the transportation of dirt from one point to another.
If the transportation of this dirt required labor which employed a bucket and spade, or a wheelbarrow, or even a horse and wagon, with men to carry the bucket or push the wheelbarrow or drive the team, fill and empty the wagon, we do not believe that it would be contended that the accomplishment of the purpose of transportation of dirt from one point to another, by such means, would be otherwise considered than "labor performed." The fact that the man on the truck accomplishes the purpose in a more efficient manner, in less time, than the man with the bucket, the wheelbarrow or the horse and wagon, makes it no less "labor performed." The statute is no less applicable because there have been developed more efficient and speedier methods of accomplishing results, as evidenced by many examples that might illustrate progress in this mechanical age.
This view has been recognized in other jurisdictions where the same question has arisen under statutes of similar nature. Southern Construction Co. v. Halliburton, 149 Tenn. 319, 258 S.W. 409; London Lancashire Indemnity Co. v. State, for Use of International Harvester Co., 153 Md. 308, 138 A. 231; Fulghum v. State, ex rel. Merritt, 92 Fla. 662, 109 So. 644.
The language in the last case noted is particularly apt, wherein the court, at page 670, ( 109 So. 644, 647), says: "It would indeed be a strained construction of the statute to hold that one who performs or otherwise supplies manual or physical labor alone is protected, while one who is aided in his labor by a team of horses and a wagon, or by mechanical devices or equipment, may not recover the agreed value of his work, but only that part represented by the physical labor alone. Carried to its ultimate conclusion, such a construction would in many cases exclude artisans who employ tools or machines in their labor. Clearing a right of way, excavating and grading, and hauling materials to and debris away from a road building project, clearly involves the performance of labor. It would be reductio ad absurdum to say that the parties to this sub-contract contemplated that the sub-contractor would himself, and with his own hands, clear the right of way and do the necessary excavating and grading for a road ten miles long. It is a matter of common knowledge, and was within the contemplation of both the statute and the bond here sued on, that the character of labor provided for in the principal contract is performed with the aid of others and with teams and mechanical appliances and devices. If a sub-contractor agrees with the principal contractor to perform a portion of that labor, and does so, he has indubitably supplied labor in the prosecution of the work. The fact that it was accomplished with the aid of others, and with teams and mechanical equipment, does not alter its essential character as labor. How the sub-contractor conducts his organization, whether he must pay out sums for 'overhead expenses,' and how he came into possession of the equipment he used, whether he owned it or hired it, is all beside the point. The fact that these costs to the sub-contractor may, and probably do, form component elements of his agreed price with the principal contractor for doing the work does not defeat his right to recover on the bond for the labor at the agreed price, where there is no charge of fraud or collusion."
On the other hand, our attention is called to the case of Stein v. J. T. Stout Co., Inc., 9 N.J. Misc R., 685, 155 A. 457, in which the opposite conclusion seems to have been reached.
Without attempting to analyze the New Jersey case and reconcile the conclusion reached with that of other jurisdictions, we are unable to agree with that conclusion, even conceding the similarity of the statutes of New Jersey with our own. Under the facts of this record, construing the statute of our own state, Section 2365-4, General Code, which provides that the surety is liable for "all lawful claims of sub-contractors, material men and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract," it is our conclusion that the surety is liable to the sub-contractor for labor performed for the transportation of this dirt at the agreed price per hour by means of the labor of the drivers using the trucks in the performance of the agreement, and attaining the purpose and object of such agreement, to wit, the transportation of the dirt, all of which went into the permanent construction of the road, the subject of the principal contract.
There is no difference in principle between the laborer who wheels his wheelbarrow full of dirt from one point to another on the job, and the man of larger facilities who transports that same material between the same points, thus accomplishing the purpose in a shorter period of time, and more efficiently. It is not a case of the hiring or rental of equipment merely, but it is the procuring of the results of the labor incident to the transportation of this dirt, at a stipulated price per hour by the means employed, to wit, the use of trucks and men to drive and operate the same, and as such it comes within the purview and meaning of Section 2365-2, General Code, and the sureties are liable under the bond of the original contractor for such labor.
The judgment of the courts below will therefore be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.