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employment of both the superintendent and the plaintiff, it was the negligence of the fellow-servant, for which the defendant is not liable, according to the unbroken line of authorities in this State.
The case discloses no negligence upon the part of the defendant, and no circumstances from which such negligence can properly be inferred. In rendering a verdict for the plaintiff the jury must have been influenced by some improper motive. Motion sustained. New trial granted.
NONLIABILITY OF COUNTY FOR WAGES DUE EMPLOYEES OF SUBCONTRACTOR-EFFECT OF FAILURE TO REQUIRE EXECUTION OF BOND BY CONTRACTOR-Rhea County, v. Sneed, 58 Southwestern Reporter, page 1063.-Action was brought by Robert Sneed against Rhea County, Tenn., for services rendered for a contractor in constructing a county bridge. In the circuit court of Rhea County a hearing was had and a judgment was rendered in favor of the plaintiff, Sneed. The county, as defendant, then carried the case, upon a writ of error, to the supreme court of the State, which rendered its decision November 10, 1900, and reversed the judgment of the court below.
Judge Caldwell delivered the opinion of the supreme court and stated the facts of the case and the reasons for the decision therein in the following language:
Under the appointment and authority of the county court of Rhea County, three commissioners contracted with the Groton Bridge Company to erect a bridge across Richland Creek, in that county, at the price of $1,875, to be paid as follows: $1,000 when the substructure should be ready for the superstructure, and the remaining $875 when the entire structure should be completed. For some unexplained reason, the commissioners failed to exact the contractor's bond contemplated by chapter 182 of the acts of 1899, and it was not executed. The Groton Bridge Company sublet the construction of the substructure to Thompson, and he in turn sublet it to Nipper, who employed numerous laborers to do the work for him. While inspecting the vork as it progressed, the commissioners, on different occasions, saw these laborers engaged upon the masonry in the abutments, but assumed no control of them, and made no contract with them. Robert Sneed was one of these laborers. When his services were ended, and his employer, Nipper, had paid him only a part of the compensation due bim, he demanded the residue from the commissioners, who refused to pay it, upon the ground that they had not employed him, and therefore owed him nothing. This demand was made and payment refused after the substructure was completed, before final settlement with the original contractor, and when the county still owed it the latter installment of $875. After the bridge had been finished, accepted, and paid for, Sneed, to whom the balance was still due from Nipper, brought this suit to recover the amount thereof from the county. The circuit judge tried the case without a jury, and adjudged the county liable, "both at common law and because of the failure of the commissioners to take bond as required by chapter 182, acts 1899," for the sum claimed, and the county appealed in error.
The learned trial judge was in error. Clearly, common-law responsibility on the part of the county for the debt could properly be based alone upon an express or an implied contract, and neither of these in shown in the proof. It is not contended that Sneed had an express contract with the county; nor is the fact that the commissioners frequently saw him with other laborers at work on the masonry, and afterwards accepted the completed structure, sufficient to raise an implied promise on the part of the county in his favor. They engaged the Groton Bridge Company to furnish a finished structure for an agreed price, and had the legal right to assume that it would pay for all labor and material employed, and by paying that price to that company they absolved the county from all liability for the benetits received.
If the Groton Bridge Company had abandoned its contract, and Sneed, with the knowledge of the commissioners, had then constructed the bridge, and it had been accepted, the case would be like that of Madison Co. v. Gibbs, 9 Lea, 383, and he, under the authority of that case and upon principle, would be entitled to a recovery against the county for the benefits conferred, on the ground of an implied promise to pay therefor. But, as has been seen, such is not the case presented in this record. Here the performance of the express contract by and with the Groton Bridge Company for the compieted structure necessarily precludes the idea of an implied contract with Sneed or any other laborer doing a part of the work. An express contract with one person to perform the whole of a certain piece of work is utterly inconsistent with an implied contract with another person
to do a part of the same work, and, being so, the two can not have legal efficacy at the same time. The law never implies a promise from a situation clearly covered by an express contract, as in this instance.
The object of chapter 182 of the acts of 1899, as recited in the title, is to protect laborers and furnishers of materials on public works." The first section prohibits the letting of “any public work,” for city, county, or State, until the contractor shall first execute a good and solvent bond to the effect that he will pay for all materials and labor used in said contract;" the second and fourth sections authorize every unpaid laborer and material-man, who has given the prescribed notice of his demand, to bring an action upon that bond in his own name; and the third section makes it a misdemeanor for any officer to let a contract for any public work without requiring the bond provided for in the first section. Undoubtedly the structure erected by the Groton Bridge Company was a “public work,”:within the contemplation of this act, and the county's commissioners were as certainly guilty of a misdemeanor in letting the contract without first taking the required bond. Under a well-established rule of law, that marked dereliction of positive duty on the part of the commissioners constitutes negligence per se, and renders them liable, not only to a criminal prosecution for the statutory misdemeanor, but also to a civil action for damages resulting to laborers and material men, who would bave been protected by the prescribed bond if executed.
It does not follow, however, that the county is liable for the neglect of its commissioners. The duty of requiring the prescribed hond is by the statute devolved upon the "public officer" charged with letting
the contract, and for the failure to perform that duty the statute declares "such officer shall be guilty of a misdemeanor.
Sections 1, 3. The duty and liability for its breach are imposed on the same per
Consequently these commissioners who should have taken the bond, and not the county, are responsible for the omission disclosed in this case. The mere fact that the commissioners were appointees of the county, and acting for it, does [not] render it responsible for their failure to take the bond. Their departure from the course of duty in this regard was in no legal sense the act of the county, nor one for which any statute fixes liability upon the county. It is a general rule that a private action can not be maintained against a county for damages arising from the neglect of its officers in connection with public highways, unless some statute confers the right to do so.
Right OF EMPLOYER TO STOP WAGES OF EMPLOYEE TO MAKE UP Loss SUFFERED THROUGH EMPLOYEE'S MISTAKE-EFFECT OF RECEIPT IN FULL-Georgia Railroad Co. v. Gouedy, 36 Southeastern · Reporter, page 691.-Action was brought by J. H. Gouedy against the above-named company to recover wages, the payment of which had been withheld. He recovered a judgment in a justice's court and the company appealed to the superior court of Fulton County, Ga., where, upon the trial, the jury returned a verdict in his favor. The company made a motion for a new trial, which was overruled, and the
company then carried the case up on a writ of error to the supreme court of the State, which rendered its decision July 12, 1900, and affirmed the action of the lower courts. The evidence showed that Gouedy was employed as billing clerk by one Werner, the local agent of the railroad company in Atlanta, Ga.; that in rebilling a carload of corn sent by a dealer in Tennessee to a merchant in Union, S. C., he erroneously marked it for Marion, S. C.; that when it arrived in Marion there. was no consignee there to receive it; that it was then sent to Union, its original destination, but the consignee there refused to accept it because of the delay; that it was sent to Greenville, S. C., and sold hy the railroad company at a loss; that the loss was divided among the various railroad companies over whose lines the corn had passed, and the amount assessed against the Georgia railroad company was charged to its local agent at Atlanta, Werner; that he in turn charged it to Gouedy, and when the paymaster came to Atlanta to pay off the employees of the company, the pay roll showed that $10 of Gouedy's wages had been marked "stopped;" that subsequently similar amounts were deducted from his wages, the amounts being given to Werner by the paymaster, until the amount assessed against the railroad company and by it charged to Werner had been paid; that Gouedy protested, but the paymaster said he had nothing to do with the matter, but that Gouedv must appeal to the officials of the road, and that so far as he
was concerned Gouedy must take the amount offered him or get nothing; that Gouedy took the amounts offered and upon each occasion signed the pay roll, thus receipting in full for all demands, but he had never agreed that Werner should "stop" any of his wages.
The opinion of the supreme court was delivered by Chief Justice Simmons, and the syllabus of the same, prepared by the court, reads in part as follows:
1. In a suit by an employee against a railroad company for the balance of his wages, the company can not legally defend by showing that the plaintiff had made a mistake whereby the company had suffered loss, which had been charged to an agent who was his superior, and under whom he was employed, and that in order to reimburse that agent it had stopped the wages of the plaintiff; such a course not being authorized by any rule of the company known to the employee, or agreed to by him.
2. The fact that the employee, when he received a part of his wages, gave a receipt in full for all demands, does not estop him to claim the balance, when it appears that he at the time protested against the ** stoppage" of a portion of his wages.
LAWS OF VARIOUS STATES RELATING TO LABOR ENACTED SINCE
JANUARY 1, 1896.
[The Second Special Report of the Department contains all laws of the various States and Territories and of the United States relating to labor in force January 1, 1896. Later enactments are reproduced in successive issues of the Bulletin from time to time as published.]
ACTS OF 1901.
Liability of employers for injuries of employees. SECTION 1. Every corporation, company or individual who may employ agents, servants or employees, such agents, servants or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, employee or servant, resulting from the carelessness, omission of duty or negligence of such employer, or which may have resulted from the carelessness, omission of duty or negligence of any other agent, servant or employee of the said employer, in the same manner and to the same extent as if the carelessness, omission of duty or negligence causing injury or death was that of the employer.
Sec. 2. All acts, and parts of acts, in conflict herewith, are hereby repealed: Prorided, however, That this act shall not be construed to repeal or change the existing laws relating to the right of the person injured, or in case of death, the right of the husband or wife, or other relatives of a deceased person, to maintain an action against the employer. Approved March 28, 1901.
ACTS OF 1900.
CHAPTER 71.-Time to vote to be allowed employees. SECTION 1. An additional section is hereby added to article thirty-three of the Code of Public General Laws of Maryland, entitled “Elections,” as reenacted by chapter two hundred and two of the acts of 1896, said section to follow section eighty-three of said article, and to be designated as section 83A, and to read as follows:
83A. At every election, whether national, State or municipal, hereafter held in this State, every employer, whether a body corporate, firm or individual, shall allow its or his employee or employees sufficient time, not exceeding four hours, within which to vote; provided, that the said employer shall have the right to designate the time when his employee or employees shall exercise the right herein granted, the employeeor employees to be allowed sufficient time not exceeding four hours. Any employer, whether a body corporate, firm or individual, and any officer or agent of any employer, who shall refuse to allow its or his employee or employees sufficient time, not exceeding four hours, within which to vote, or who shall, directly or indirectly, prevent or hinder its or his employee or employees from exercising the right herein granted by any form of inducement whatever, or by threats, express or implied, that the exercise by said employee or employees of the right herein granted, will be followed by a discharge from said employment, or by a reduction in salary or wages, or who shall influence or attempt to influence its or his employee or employees not to exercise the right herein granted upon any pretext whatever, shall be guilty of a misdemeanor, and upon conviction thereof shall, for each and every offense, pay a fine not exceeding the sum of five hundred dollars and be imprisoned in jail for a period not exceeding six months, or both, in the discretion of the court.
Sec. 2. This act shall take effect from the date of its passage.