MYERS v. ALTA CONST CO

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District Court of Appeal, Fourth District, California.

MYERS v. ALTA CONST. CO. et al.

Civ. 4063.

Decided: January 12, 1951

Thomas E. Davis, San Francisco, for appellant. West, Vizzard, Howden & Baker and Gordon L. Howden, all of Bakersfield, for respondent.

Action on a bond.

Defendant Standard Accident Insurance Company appeals from an adverse judgment in an action by plaintiff to recover for personal services rendered as a surveyor and civil engineer in connection with the construction of a warehouse in the county of Kern. The services were performed for and at the instance and request of defendant Alta Construction Company, which was under contract to construct the building.

The defendant Standard Accident Insurance Company, for the purpose of complying with the provisions of section 1183 of the Code of Civil Procedure, executed a bond inuring to the benefit of any and all persons performing labor upon or furnishing materials to be used in the performance of the work. In addition to the required provisions, the bond contained the following language: ‘The Principal andSurety further agree to pay all just claims of laborers (italics ours) arising under said contract, within two (2) weeks after demand, and to waive the filing of lien claims or giving written notice required by Statute as a condition to bringing suit to enforce the same. * * *’

It was stipulated that the bond was properly recorded; that no claim of mechanic's lien was filed by plaintiff within the time provided by the code and that no written demand was made upon the Standard Accident Insurance Company under the provisions of section 1183 of the Code of Civil Procedure.

The sole question here involved is whether plaintiff is a ‘laborer’ within the meaning of the quoted provision of the bond. This question must be answered in the negative.

Plaintiff classifies himself in his complaint as a ‘surveyor and civil engineer’, suing for the value of ‘professional services rendered.’

In Waara v. Golden Turkey Mining Co., 60 Ariz. 252, 135 P.2d 149, 149 A.L.R. 677, it was held that a civil mining engineer was not a laborer within the meaning of the lien laws of that state. The court said, 135 P.2d at page 151: ‘A civil and mining engineer is employed, we assume, because of his educational training to do certain kinds of technical or skilled work and usually is not required or expected to take directions or instructions from his employer except as to the final result, and accordingly is paid for his services, not for the physical effort in accomplishing a result but for his skill and knowledge. The manual labor he performs is not the reason for his employment but is an incident to his work; it does not necessarily transform him into a laborer or miner, as those words are used in the lien law of the state. He is employed to render a service very different from that of the miner or laborer.’

In the case of Universal Pictures Corp. v. Superior Court, 9 Cal.App.2d 490, at page 493, 50 P.2d 500, at page 501, the plaintiff was employed as an actor or artist by the defendant, and in considering the question of whether the actor was to be regarded as a laborer the court said: ‘However, with but few exceptions, it seems to be generally conceded, that individuals whose principal efforts are directed to the accomplishment of some mental task, such as those of ministers of the gospel (Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226); lawyers (Latta v. Lonsdale, 8 Cir., 107 F. 585, 52 L.R.A. 479; Gay v. Hudson River E.P. Co., C.C., 178 F. 499); doctors (Weymouth v. Sanborn, 43 N.H. 171, 80 Am.Dec. 144); teachers (School District v. Gautier, 13 Okl. 194, 73 P. 954; Tatsukichi Kuwabara v. United States, 9 Cir., 260 F. 104; Lesuer's Case, 227 Mass. 44, 116 N.E. 483, L.R.A. 1918F, 197); or actors (Wirth v. Calhoun, 64 Neb. 316, 89 N.W. 785; In re Ho King, D.C., 14 F. 724); or those persons generally known and recognized as professional men or women, even though in its broad sense perform ‘labor,’ are not to be, nor should be, classified as ‘laborer.”

In Morley v. McCaskey, 134 Okl. 50, 270 P. 1107, 1110, it is said: ‘A laborer ordinarily is a person without particular training and who is employed at manual labor under a contract terminable at will. We are of the opinion that the words ‘laborers who perform work and labor,’ used in section 7468, supra, are intended to designate ordinary laborers who perform actual physical toil; common laborers and those who are required to use their hands or muscles in actual work. Such words do not apply to those who furnish both labor and material under a contract to perform a designated portion of an entire contract. The purpose of the statute is to protect a class of persons rarely able to protect themselves, and who, from the laborious nature of their occupations and the necessity of earning their daily bread by daily toil, have not time, opportunity, or training sufficient to inform themselves as to the financial responsibility of the parties for whom they work.'

In 51 C.J.S., Labor or Labour, pp. 475–476–477–478, it is said: ‘In determining whether a particular person is really a ‘laborer,’ in the strict and popular sense of the word, the character of the work must be taken into consideration; he must be classified not according to the arbitrary designation given to his calling, but with reference to the character of the services required of him. The test for determining who is a laborer in such case is whether the work of the particular person involves mental skill, business capacity, involving the exercise of the intellectual faculties, or whether the work depends on mere physical power and manual labor. * * *

‘When used in its ordinary and usual acceptation, ‘laborer’ carries with it the idea of actual physical and manual exertion or toil, implying personal service and the work of the individual. As commonly and customarily used and understood, the term applies only to one engaged in some form of manual, or physical labor, such persons as gain their livelihood by manual toil. It is not applicable to anyone who does not earn his living by the work of his hands, and it excludes anyone whose employment is associated with mental labor and skill; and such is the primary or specific lexical meaning uniformly assigned to the word.

‘In its restricted sense, the term signifies one who performs manual, menial, or physical exertion, labor, or toil, not requiring special accuracy, knowledge, skill or training, under the direction of his employer, master, or superior, and hence distinguished from an artisan, professional man, or skilled workman. * * *

‘Ordinarily the word ‘laborer’ does not embrace persons engaged in the learned professions, or individuals whose principal efforts are directed to the accomplishment of some mental task.'

It is apparent from the record before us that the plaintiff did not himself perform any manual labor in connection with the services rendered. It was not contemplated that he should be paid for physical efforts in the performance of the services, but rather for his skill and knowledge. As a professional man, he was not a ‘laborer’ as herein defined.

Section 1644 of the Civil Code provides: ‘The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.’

Section 1183 of the Code of Civil Procedure provides in part: ‘Mechanics, materialmen, contractors, subcontractors, artisans, architects, machinists, builders, miners, teamsters and draymen, and all persons and laborers of every class performing labor upon or bestowing skill or other necessary services, or furnishing materials to be used or consumed in or furnishing appliances, teams and power contributing to the construction, * * * shall have a lien * * *.’

The language used in the quoted portion of the section indicates that there are several classes of persons who are entitled to liens other than ‘laborers'. The provision of the bond with which we are here concerned evidences an intent on the part of the parties to waive the benefits of the statute requiring lien claimants either to file a mechanic's lien or to give written notice to the surety as to laborers only, and to give the word ‘laborers' its popular and ordinary meaning. To give any other meaning to the word ‘laborers', as used in the bond, would be to extend the waiver to classes of persons not included therein.

Judgment reversed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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