Opinion
No. 39509.
March 7, 1955.
1. Appeal — suit on contractor's performance bond — intervention petition — contract not exhibit to — objection not seasonably filed.
In suit by material supplier against contractor performing work for city and surety on contractor's performance bond, wherein petition for intervention was filed by party claiming to have furnished required insurance for contractor, and contractor and surety, though personally served with process, failed to plead to such petition and suffered decree to be entered for intervenor, objection that petition of intervention failed to state a cause of action because contract between contractor and city was not attached as exhibit was available only by seasonable objection in Trial Court and was not available on appeal in view of fact that statutory provisions, that there shall be filed with declaration in every case founded on any writing a copy of such writing and that evidence thereof shall not be given on trial unless annexed or filed, set up only a rule of evidence and not one of pleading and practice. Secs. 1469-70, Code 1942.
2. Equity — decree pro confesso — prior to final decree — not necessary.
In such suit, entry of decree pro confesso was not necessary prior to rendition of final decree for intervenor.
3. Equity — suit on contractor's performance bond — intervention petition — unanswered — sufficient to support default decree — statutes.
In such suit, allegations of fact in intervenor's petition for intervention seeking recovery of insurance premiums paid by it for contractor, together with reasonable attorney's fees, were sufficient, where unanswered and undenied by contractor and surety on contractor's performance bond, to support default decree for intervenor, and intervenor was not required to make proof of any allegation of fact, in view of applicable statute requiring defendants to answer fully all allegations of the petition, and further providing that all matters of fact averred in petition not denied by answer otherwise than by general traverse may be taken at the hearing to be admitted. Sec. 1291, Code 1942.
4. Appeal — same — same — same — Supreme Court — assumed — Chancellor had sufficient proof to justify findings.
In such case, where petition for intervention was not contested by contractor and surety on performance bond, Supreme Court could not assume that Chancellor in entering final default decree for intervenor did not have sufficient proof to justify findings of facts including finding of amount of reasonable attorney's fees, and would require no proof of any material allegation of petition in absence of any pleading denying such allegations. Sec. 1291, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
Byrd, Wise Smith, Jackson, for appellant.
I. The record discloses no pleadings, exhibits, testimony or documentary evidence based upon which the decree entered in favor of Fox-Everett, Inc., against the appellant can be sustained. Paine v. Mikell, 187 Miss. 125, 192 So. 15; Paine v. Newton, 186 Miss. 844, 192 So. 310; Stevens v. Barbour, 193 Miss. 109, 8 So.2d 242.
II. A decree pro confesso taken by the one filing the original bill of complaint does not relieve an intervenor from the necessity of introducing proof. American Surety Co. v. United States Use of Melton Hardware Co., 76 Miss. 289, 24 So. 388; Simpson v. Smith Sons' Gin Machine Co., 75 Miss. 505, 22 So. 805; Sec. 1754, Code 1942.
III. Suits on written instruments must have attached to the pleadings such written instruments. Hartford Acc. Indemnity Co. v. Natchez Investment Co., 161 Miss. 222, 135 So. 497; Secs. 1469-70, Code 1942.
IV. The bond upon which suit was brought against appellant does not cover workmen's compensation insurance; and, as a consequence, the decree for money in favor of Fox-Everett, Inc., insofar as based upon premiums for workmen's compensation insurance, is error. North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135; Sec. 9014, Code 1942; 43 Am. Jur. 938; Annos. 102 A.L.R. 135; 164 A.L.R. 1468.
V. In suits upon contractor's bonds in order to collect attorney's fees, proof must be made as to the reasonableness and necessity thereof. Hartford Acc. Indemnity Co. v. Natchez Investment Co., supra; Vol. III, Colliers on Bankruptcy (14th ed.), Sec. 62.12 p. 1487; Griffith's Miss. Chancery Practice (2d ed.) pp. 247, 653-4, 678.
Wright, Overstreet Kuykendall, Jackson, for appellee.
I. Appellee's intervention petition contained all necessary allegations to support the decree, and issue not having been joined, no proof was required. American Surety Co. v. United States Use of Melton Hardware Co., 76 Miss. 289, 24 So. 388; Britton v. Magnolia State Casket Supply Co., 210 Miss. 264, 49 So.2d 404; Hambrick v. Jones, 64 Miss. 240, 8 So. 176; Paine v. Mikell, 187 Miss. 125, 192 So. 115; Paine v. Newton, 186 Miss. 844, 192 So. 310; Prater v. Prater, 208 Miss. 59, 43 So.2d 582, 44 So.2d 538; Simpson v. Smith Sons' Gin Machine Co., 75 Miss. 505, 22 So. 850; Griffith's Miss. Chancery Practice, Secs. 262, 264 pp. 249, 251.
II. The public contract on which the surety bond was given was not required to be exhibited. Alexander v. Carsley, 199 Miss. 881, 25 So.2d 709; Britton v. Magnolia State Casket Supply Co., supra; Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407; Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 43 A.L.R. 79; Hartford Acc. Indemnity Co. v. Natchez Investment Co., 161 Miss. 222, 135 So. 497; Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738; Paine v. Newton, supra; Tierney v. Duffy, 59 Miss. 364; Vicksburg Mfg. Supply Co. v. Jaffray Constr. Co., 94 Miss. 282, 49 So. 116; Secs. 1469-70, 9014, et seq., Code 1942; 4 C.J.S., Appeal and Error, Sec. 278 p. 547.
III. The bond covers payment of the workmen's compensation premiums. Bordson v. North Dakota Workmen's Comp. Bureau, 49 N.D. 534, 191 N.W. 839; Foster v. Kerr Houston, 133 Maine 389, 179 A. 297; Guaranteed Gravel Sand Co. v. Aetna Casualty S. Co., 174 Minn. 366, 219 N.W. 546; Harper v. Adams, 141 Miss. 818, 106 So. 354; Kunz v. Phillips, 191 Minn. 626, 255 N.W. 90; Merchants Mutual Cas. Co. v. U.S.F. G. Co., 2 N.Y.S.2d 370, 253 App. Div. 151; Secs. 6998-04, 6998-05, Code 1942; 43 Am. Jur., Public Works and Contracts, Sec. 189 p. 930; Annos. 63 A.L.R. 711, et seq.; 102 A.L.R. pp. 135, 139; 129 A.L.R. 1091; 164 A.L.R. 146; 5 Words and Phrases 4112.
IV. The amount of the attorneys' fees in this case was properly allowed by the Court below. Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Stephens v. Duckworth, 188 Miss. 626, 196 So. 219.
ON MOTION TO DISMISS.
151 Miss. 211117 So. 534 213 Miss. 21756 So.2d 503167 Miss. 650147 So. 324292 U.S. 393187 Miss. 125192 So. 15 186 Miss. 844192 So. 310197 Miss. 353 20 So.2d 697
II. Method of pleading not objected to in Trial Court will not be considered on appeal. Adams v. Board of Suprs. Union County, 177 Miss. 403, 170 So. 684; Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Christopher v. Brown, 211 Miss. 322, 51 So.2d 579; Citizens Bank of La. v. Buddig, 64 Miss. 284, 4 So. 94; Federal Credit Co. v. Zepernick Groc. Co., 153 Miss. 494, 121 So. pp. 114, 858; Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So.2d 551; Keystone Lumber Yard v. Yazoo M.V.R.R. Co., 94 Miss. 192, 47 So. 803; Laird v. Forbes, 214 Miss. 250, 58 So.2d 660; Trenholm v. Miles, 106 Miss. 467, 64 So. 209; Yazoo M.V.R.R. Co. v. Schraag, 84 Miss. 125, 36 So. 193; Sec. 1544, Code 1942; Griffith's Miss. Chancery Practice, Sec. 676 p. 745.
APPELLANT IN REPLY.
I. Reply to Point I of appellee's brief. Paine v. Mikell, 187 Miss. 125, 192 So. 15.
II. Reply to Point II of appellee's brief. Pease Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; Wilson v. Terry, 218 Miss. 411, 67 So.2d 387; Griffith's Miss. Chancery Practice (2d ed.), pp. 247, 653-4, 678.
This suit was originally instituted by Howard Knowles, doing business as Knowles Material Company, against Ike S. Reid, who had contracted to construct sanitary sewers, manholes, etc., for the City of Jackson, and against the appellant, Western Casualty Surety Company, as surety on the performance bond of the contractor in the penal sum of $148,113.25. Knowles had furnished certain materials used in the construction of the work covered by the contract. He filed as an exhibit to his bill of complaint a copy of the surety bond given by Reid as aforesaid for the faithful performance of his contract, but he did not file as an exhibit thereto a copy of the contract itself.
Thereafter the appellee, Fox-Everett, Inc., filed a petition to be allowed to intervene in the suit, and was allowed to do so, on the ground that it had paid out for the contractor the sum of $2,565.10 in premiums for workmen's compensation insurance on behalf of the contractor, and the sum of $1,630.00 for public liability insurance on his behalf.
The original suit and the petition of this intervenor and another were conducted pursuant to Section 9014, et seq., Code of 1942, and were filed after the six months period had expired within which the obligee in the bond, the City of Jackson, had the first right to sue on the said performance bond, after the completion of the contract and the publication of notice in that behalf. The suits were filed by Knowles and the intervenors within the twelve months required by the above mentioned statutes.
The petition of intervention filed by the appellee, Fox-Everett, Inc., made the performance bond an exhibit thereto by reference to the same as an exhibit to the bill of complaint in the original suit filed by Knowles, but the petition of intervention of the said appellee also failed to make the contract entered into between Ike S. Reid and the City of Jackson an exhibit to the intervention petition.
One of the principal points argued by the appellant, Western Casualty Surety Company, is that the petition of intervention failed to state a cause of action on the ground that the contract between the contractor Reid and the City of Jackson should have been made an exhibit to the petition of intervention along with the performance bond on which the said appellant was the surety in order that the court might determine whether or not the contractor was required to furnish workmen's compensation insurance and whether or not the surety was obligated to see to it that the contractor performed his contract in that regard.
(Hn 1) Sections 1469 and 1470, Code of 1942, require, among other things, that "there shall be annexed to or filed with the declaration in every case * * * founded on any writing, a copy of such writing * * *; and evidence thereof shall not be given on the trial unless so annexed or filed; and the same shall constitute a record of the cause." These statutes announce a rule of evidence and not one of pleading and practice, and the failure to annex to or file with the declaration founded on any writing, a copy of such writing, can be availed of only by seasonable objection in the trial court. Enochs-Flowers, Inc. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407; Alexander v. Carsley, 199 Miss. 881, 25 So.2d 709; 4 C.J.S. page 547 Section 278.
Although both the contractor and the appellant as surety on his performance bond were personally served with process for the time required by law, they failed to plead to the petition of intervention, and a final decree was entered against them for the amount sued for. On February 18, 1954, a final decree was entered on behalf of the appellee, Fox-Everett, Inc., for the principal sum of $4,195.40, together with accrued interest thereon from July 10, 1951, at the rate of 6 percent per annum in the sum of $602.06, together with attorney's fees in the sum of $700.00, (being the amount of attorney's fees sued for and alleged in the petition to be a reasonable fee), or a total sum of $5,497.46. This final decree which recited the facts as to the default of the defendants in making any defense to the petition of intervention, contained a finding by the chancellor that "the aforesaid sum of $700.00 is a reasonable attorney's fee on the intervention petition of Fox-Everett, Inc."
(Hn 2) It was unnecessary for a decree pro confesso to have been entered prior to the rendition of this final decree, and therefore the point that no decree pro confesso had been taken is of no avail to the appellant. Hambrick v. Jones, 64 Miss. 240, 8 So. 176; Griffith's Mississippi Chancery Practice, Section 262 page 249 and Section 264 page 251.
Moreover, Section 1291, Code of 1942, provides that: "The defendant shall answer fully all of the allegations of the bill without being specially interrogated. All matters of fact averred in the bill and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted."
(Hn 3) The petition for intervention filed by the appellee, Fox-Everett, Inc., expressly alleged that "at the special instance and request of the defendant contractor, Ike S. Reid, it (the intervenor) furnished to said contractor certain workmen's compensation and public liability insurance which was required of said contractor under the public contract awarded by the City of Jackson" on the project in question. (Italics ours). The petition further alleged "that the said insurance was used in said public work and was payable by the contractor to the intervenor in the amounts and on the respective dates as shown on the sworn account attached as exhibit `A' hereto." This petition of intervention further alleged that the defendants were indebted to the petitioner in the sums sued for, "together with his reasonable attorney's fee in the further sum of $700.00, and its cost in this behalf expended." This was an allegation of fact, and if the defendants had appeared and contested the intervention petition, and had denied the allegations of fact therein contained, then the petitioner would have been required to prove by the introduction of the contract and the performance bond that the indebtedness sued for was due and owing, and that the $700.00 fee sued for was a reasonable fee for the services rendered by the attorneys in the cause. But this the defendants failed to do and the petitioner was not required to make proof of any of the facts alleged in its petition.
Moreover, the performance bond of Ike S. Reid on which the appellant had become the surety, and which bond was made an exhibit to the intervention petition by reference to the same as an exhibit to the original bill of complaint filed by Knowles, expressly provided that the principal in the bond "shall fully and completely perform all of the terms, covenants and conditions as in said contract contained on his part to be done and performed; and furnish all labor, material and equipment specified in said contract in strict accordance with the terms of said contract, * * *; and shall promptly pay the said agents, servants and employees and all persons furnishing labor, material, equipment or supplies therefor, including premiums incurred, for surety bonds and liability insurance, in the course of the performance of said work, * * *." And the bond also expressly provided for the payment of "all of the expense and costs and attorney's fees that may be incurred in the enforcement of the performance of said contract, or in the enforcement of the conditions and obligations of this bond; * * *."
We call particular attention to the words "and liability insurance" and we emphasize the fact that it says "and liability insurance" and not "public liability insurance." We are of the opinion that workmen's compensation insurance is liability insurance, and that the defendants were liable for the same, especially in view of the undenied allegation contained in the petition to the effect that the petitioner "furnished to said contractor certain workmen's compensation * * * insurance which was required of said contractor under the public contract" in question. (Italics ours).
(Hn 4) Furthermore, since the petition of intervention was not contested, there was no necessity for the court reporter taking the oral proof, if any, and transcribing the stenographic notes thereof, and in view of the further fact that the chancellor found in his decree as a fact that $700.00 was a reasonable attorney's fee, we can not assume that the chancellor did not hear sufficient proof to justify such finding of fact, even if proof of the truthfulness of the allegation of the petition in that behalf was required. However, the decree did not expressly recite that oral proof was heard. Moreover, we hold that under Section 1291, Code of 1942, supra, no proof of any of the material allegations of the petition was required, in the absence of any answer or other pleading denying such allegations.
The decree appealed from must, therefore, be affirmed.
Affirmed.
Hall, Lee, Kyle and Holmes, JJ., concur.