City of Kansas ex rel. Blumb v. O'Connell

Black, J. This is a suit in the name of the City of Kansas, to the use of Mary Blumb, against O’Connell, and against five or six other persons, who are the sureties of 0’ Connell, on his bond to the city. O’ Connell was not served, and the sureties are the only parties defendant before the court. Defendant’s objection to the introduction of any evidence was sustained, and the plaintiff took a non-suit, with leave. The question, therefore, is, whether the petition states a cause of action. It discloses these facts:— 0’ Connell was the contractor with the City of Kansas, for the construction of a district sewer, and gave the bond, upon which this suit is based, to secure the performance of that contract. During the performance of the work, Mary Blumb received personal injuries from a fragment of a stone, thrown upon her, by reason of the negligence of O’Connell and his laborers, in blasting out the excavation for the sewer. For these injuries, she sued O’Connell and the city, and recovered a judgment for twenty-five hundred dollars, which remains unpaid, and in full force, as against O’Connell, though reversed and annulled as to the City of Kansas. The bond is in the form of a contract, 0’ Connell being party of the first, the sureties of the second, and the city of the third, part, and contains, among others, the following stipulations: “It is further distinctly agreed that the said party of the first part shall be responsible for all unlawful damages to persons or property, from negligence, or carelessness, in doing said work, or in not using proper precaution, between commencing and completing the job, by barricades, signals, lights or otherwise, to prevent injury to persons or property from said work, and the approaches thereto, and shall indemnify the City of Kansas against all losses or claim for damages, on account of such neglect, or carelessness; and the said party of the first part covenants with said City of Kansas to pay all laborers [360] employed on said work. * * * Said parties of the second part hereby guarantee that said party of the first part will well and truly perform the covenants, hereinbefore contained, to pay all laborers employed on said work, but they shall not be liable, on this guarantee, beyond two thousand dollars, the estimated cost of the labor on said job; and said parties of the second part hereby agree with said City of Kansas that said party of the first part will well and faithfully perform each and all of the terms and stipulations in the foregoing contract to be done, kept and performed on the part of the said party, and said parties of the second part shall not be liable hereon beyond the sum of eight thousand dollars.” The plaintiff, it will be seen, takes the ground that this bond is available to her for the satisfaction of the injuries which she received; and the defendants insist that their contract is simply one of indemnity to the city, and that plaintiff cannot sue upon the bond. Section 8, of article 9, of the city charter (Acts of 1875,, p. 255), provides that contracts of the character of the one here in question shall contain a covenant, on the part of the contractor, to pay all laborers, which covenant shall be guaranteed by two or more sureties, who shall not be liable beyond the estimated cost of the .labor on the job, to be stated in the contract. The same section goes on to give the laborers an action upon the contract, and prescribes the procedure. But the charter makes no such provisions in favor of other persons. Nor is it claimed that there is any statute Avhich gives to plaintiff a right to sue on this bond. The bond is of a dual character. It is statutory as to the covenant to pay the laborers, and as to that covenant, the penalty is separately fixed and stated. In other respects, it is but a common-law undertaking. The substance of the covenant, relied upon by the plaintiff is, that the contractor shall be responsible for all [361] ■unlawful damages to persons, from negligence, or carelessness, in doing the work, and shall indemnify the city against all losses or claims for damages on account of such neglect or carelessness. As to laborers, the agreement is to “pay all laborers employed on said work.” Aside from the covenant as to laborers, the object and purpose of the bond is to secure a performance of the work according to the terms of the contract, and to protect, and save harmless, the city from damages occasioned by the negligent acts of the contractor and his servants. In these respects, it is not an agreement with the city for the benefit of third persons, but for the protection and benefit of the city. Whether the city could require the contractor to give a bond, which would be available to third persons in case of injuries received by them, on account of the negligence of the contractor, is a question which need not be considered. This bond must be construed as a whole, and when this is done, aside from the covenant to pay laborers, it is simply one of indemnity to the city. It does not profess to create any obligation in favor of third persons, save in the single case of laborers. The petition shows no cause of action against the defendants, and the judgment is affirmed. All concur.