Wade v. Gray

Reed, J.,

delivered the opinion of the court.

R. T. Wade is a road contractor in Hinds county, It was his duty to keep the roads intrusted to his care in good condition. The statute (section 4469 of the Code of 1906) requires the board of supervisors, with the road commissioner, to fully note the character and amount of work needed on the roads, and all else necessary to make them good and acceptable highways, and then to prepare *159 detailed plans and specifications for such work to he done by contract. The contractor agrees to do the necessary work in accordance with such plans and specifications, and his bond is conditioned “for the prompt, proper and efficient performance of the contract. ’ ’

R. A. Gray had a horse injured while driving over a road which the county had contracted with Mr. Wade to work. A culvert made of corrugated iron was put across the road to drain the water from one side to the other. It was not covered by dirt, was unprotected, and in a defective condition. Mr. Gray was driving along the road in a careful manner at night, unaware of the condition of the road, Avhen his horse’s foot went into the culvert, and the animal was seriously damaged. The jury found a verdict for Mr. Gray.

Appellant contends that he should not be held liable in this case, .because the county, if it was working the roads directly, would not be liable in such case; that the appellant by reason of his contract takes the place of the county in working the public roads, and therefore his liability should not extend further than the liability of the county. It seems to be presented now, for the first time in this court, the question of whether or not a county road contractor is personally liable to persons traveling the highways for negligence in his duty to keep the road in good condition.

It is settled in this state that a county is not liable for the defective condition of its roads. Sutton v. Carroll County, 41 Miss. 236 ; Brabham v. Hinds County, 54 Miss. 363 , 28 Am. Rep. 352 .

It appears from the decision of the case of Redditt v. Wall, 55 South. 45 , 34 L. R. A. (N. S.) 152, that recovery cannot be had on a road contractor’s bond in a suit against the contractor and his bondsmen for injuries received while driving over the public roads of a county. The reason for this given' in the opinion is that 'the county not being liable, and the bond being given to the *160 county for the purpose of indemnifying it against loss, the bond was effective only as to the county, and was not intended to secure individuals for loss, arising' from the negligence of the contractor. Mayes, C. J., in delivering the Opinion in that case, said: “As there was no liability imposed upon the county under the law for the negligent act of its overseers and agents in failing to construct or keep in repair the public highways, it is readily seen that the only purpose of the statute in requiring a contractor to give bond is that the. county may have this bond to indemnify it against loss which it may be compelled to suffer on account of the failure of the contractor to carry out his contract. The statute could have no other object, as long as the rule of nonliability applied to the county, and the condition required by the' statute to be inserted in the bond shows that the law designed that the bond should be effective only as to the county. The condition is for the ‘prompt, proper, and efficient performance of the contract’ by the contractor. The bond cannot be made liable to any individual for the negligence or want of skill •exercised by the contractor in his work. The county needed no bond to indemnify itself against damage for which it is not and can never be made liable, and for which any member of the public may possibly have his recourse against the contractor personally.” It will be noted, however, that the present case is different from that of Redditt v. Wall, supra. Mr. Gray did not sue upon the contractor’s bond. His case is not an action for a breach of the contract. He is suing in tort and seeking damages by reason of appellant’s negligence, through which the road was left in a defective condition. The suit is against .appellant personally. It is not decided in Redditt v. Wall, supra, that an action cannot be maintained against the contractor personally. In delivering the opinion it will be noticed that Mayes, J., suggested that a contractor might be personally liable for damages.

In the case of Sutton v. Carroll County, supra, Handy, C. J., in deciding that the county was not liable because of *161 the defective condition of a bridge, expresses it as his opinion that an overseer or contractor would be liable for default in doing- work contracted for which occasioned injury. He said: “In such cases a party aggrieved by reason of the default of an overseer or contractor, without justification, has a clear remedy against the person who has occasioned the injury, and who should, in justice, be responsible for it directly to the party injured. For aught that appears, this remedy might have been effectually pursued against those persons in this case; and, in addition to the reasons above stated, this course commends itself as the proper one, because it would prevent circuity of actions, which would take place if a recovery were had against the board of police, and actions were then brought by that board against the overseer and the contractor to recover the amount of such judgment.” The case of Sutton v. Carroll County, supra, is cited by Terral, J., in delivering the opinion of the court in Rainey v. County, 79 Miss. 238 , 30 South. 636 , to support the holding- that a county is not liable because of the negligence of a road overseer. In rendering the opinion, he said: “The remedy is against the overseer.” It will be seen that, while this court has never expressly decided the question as to the liability of a contractor personally, still it appears that several judges have in delivering the opinions indicated that he should be held for negligence. We find that this question has been before the courts in Kentucky in several cases. We note that in the case of Blue Grass Traction Co. v. Grover, 135 Ky. 685 , 123 S. W. 264 , 135 Am. St. Rep. 498 , and in Schneider v. Cahill (Ky.), 127 S. W. 143 , 27 L. R. A. (N. S.) 1009, it is de-‘ cided that, 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 to a traveler for injuries caused by defects in the highway. The reason for this holding is stated to be that it is the duty of a county to maintain its roads, and that this may be done *162 under the general supervision of a county official, or by contract, and that it is immaterial how it is done, the result being the same and the expense borne by the county, and that the county not being liable for negligence in not properly maintaining the roads, therefore, all persons, who are doing this work for the county, whether supervisors, contractors, or employers, are likewise relieved from liability.

We find, however, that the opposite of the conclusions on this subject by the Kentucky courts is held in the case of Solberg v. Schlosser, 20 N. D. 307 , 127 N. W. 91 , 30 L. R. A. (N. S.) 111. In that case the party sued for damages resulting from a dangerous and defective condition of the highway because of the contractor placing dirt thereon from a drain he was digging under contract with the county. The defendant contended that he should be relieved from liability because he was excavating the drain as the agent of the county drainage board, and that, as the county or drainage board was not liable under the law, he should not be liable. The court decided that defendant was liable. In delivering the opinion of the court, Morgan, C. J., said: “We do not agree with the defendant’s contention as to the cause of action set forth in the complaint. It is not a cause of action for damages growing out of a breach of contract. It is one for damages growing out of the defendant’s tort in rendering the highway dangerous through his negligence in leaving the dirt thereon in piles, and not leveled off. . . In this case, although there existed a contract between the drainage board and the defendant, still the liability as pleaded does not depend on the contract, but arises out of a legal duty devolving upon the defendant, as well as the public in general, not to obstruct or make the highway dangerous for travel. Such a duty being to the public generally may be enforced by anyone if damages occur on account of the failure to perform that duty. The liability in this case arises by reason of the fact that the defendant negligently *163 placed a nuisance in the highway, which rendered it dangerous for travel, and a violation of section 6641, Eev. Codes 1905. Inasmuch as the liability pleaded is not based upon a contract, it is not necessary for us to determine whether there was a breach of the contract in this case. ’ ’

Mr. Wade is an independent contractor. His duty is to work the roads in accordance with plans and specifications. He has given a bond to insure this. There is no relation of principal and agent between him and the county. While he is doing the work the county does not control or supervise him, except to require a fulfillment of his contract. He is answerable to the county under his contract. In the case of Solberg v. Schlosser, supra, the defendant was an independent contractor. The court in discussing his liability as such said: “So far as this case is concerned, it is immaterial whether the drainage board could be held for damages or not, as it clearly appears that the relation of principal and agent did not exist between the defendant and the drainage board by virtue of the contract. ’ ’ In reaching our conclusion in the present case, we prefer to follow the reasoning in the case of Solberg v. Schlosser , rather than that in the Kentucky cases. As we have stated, Mr. Wade is answerable to the county under his contract and bond. Why should this relieve him from liability in failing to fulfill the duty of keeping the highways in safe condition, which he has assumed, and for which he is being paid out of the public funds. He can be held liable for damages resulting from his neglect in performing an independent contract which he has entered into with a person or company other than the county. Such liability would not be based upon the contract, but upon the broader principle of his duty imposed upon him by general law. A person injured may not sue as a party to the contract, or by reason of a privity under the contract, but may sue as one of the class to whom the contractor owes the *164 duty of careful performance of his work. If Mr. Wade, under a contract, was building a courthouse for Hinds county, would he be liable for negligence in construction resulting in an injury to a third person? The county, if erecting the building itself, would not be so liable. Notwithstanding this,, he as an independent contractor should respond in damages for his neglect to persons suffering injury therefrom. He owes a general duty to all persons to be careful in his work so that no harm will befall any. Does he not owe this same duty as an independent eon-tractor working the public roads? We think so.

We have not overlooked the consideration of the case of Wilkinson v. Light, Heat & Water Co., 78 Miss. 389 , 28 South. 877 , to which appellant’s counsel has referred. That suit was based upon the contract of the company with the city of Jackson. No liability was claimed, except that arising from the contractual relations between the city and the company. The action was not in tort, as in the present case. Therefore, the holding of the court in that case cannot help' us to reach a conclusion in this. Mr. Wade owed a special duty to the county to carry out the stipulations of his agreement to work the public roads. There was a contractual liability to the county for his failure. In addition, there was a criminal liability'for his default in section 4473 of the Code of 1906, wherein it is provided that, if he neglects his duty and suffers the highway to be out of repair, he' shall be guilty of a misdemeanor and be liable to indictment. He also owed to the public a general duty to keep the road so in repair that one traveling them would not be in danger of being damaged in his person or to his property by reason of their defectiveness. His failure to fulfill his obligations to sufficiently maintain the highways will render him liable for his neglect to those suffering loss therefrom, not upon his contract with the county, nor on his bond, but in tort to which the contract was only an inducement. In this case the office of the contract when introduced as evi *165 dence was to show that Mr. Wade had assumed the obligation of maintaining and keeping in proper repair the public roads.

We note the suggestions of counsel for appellant regarding consequences which may follow our holding that the contractor is liable in tort to any injured by his neblect, as charged in this case. We cannot see that this would be so serious as it appears to counsel. If the contractor complies with all the requirements of his contract, and keeps the roads in proper repair and condition, he has nothing to fear from a suit by the county on his contract and bond, nor from criminal prosecution for violation of the statute, nor from any action in tort brought by a person suffering injury from neglect. We do not think that an independent contractor engaged in work for the county should be placed in different class from others regarding liability for negligence.

We do not find that any contributory negligence on the part of appellee has been shown. The case was fairly presented to the jury, and their verdict was for appellee. We failed to find any errors by the trial judge. We will not, therefore, disturb the jury’s verdict, and the case is affirmed.

Affirmed.