(218 S.W.)

Wm. Noble and Parks & Bell, all of Nash- [ Chadwell, J. R. Allen, and S. F. Newsom, and ville, for Chandler. the superintendent of the county workhouse, George Hobson, who had charge of the county convicts therein.

J. D. B. De Bow and T. J. McMorrough, both of Nashville, Jno. W. Hilldrop, of Madison, and Horace Osment, of Nashville, for defendants.

LANSDEN, C. J. This is an action for personal injuries brought by the plaintiff against Davidson county, the board of workhouse commissioners, and others, to recover damages for personal injuries upon the following facts, as stated by the Court of Civil Appeals, and which statement is adopted by her in the brief of her counsel in this court:

"It seems equally clear that during the progress of this work of repair, or the construction of the roadway in question, a ditch or excavation was made by those doing and in active charge of the work, some 9 feet in length, 4 feet wide, and 3% feet deep. This hole or excavation was in or near the front entranco Nashville. It was at the edge of the macadam to the home of W. S. Noble, near the city of covered part of the roadway, and possibly may have extended a very limited distance into the edge of the macadam surface. The ditch was cut out of rock largely and was rough and jagged to a degree on its sides and bottom. In this condition the hole or excavation was left un

"This is an action for the recovery of dam-guarded for some time. The plaintiff on the ages for personal injuries alleged to have been sustained by plaintiff as a result of falling into a hole or ditch by the side of a public road or turnpike in Davidson county, at or near where it is intersected by a roadway leading through a gateway across the lawn into the country home of W. S. Noble, a member of the Nashville bar, upon the theory and averment that the hole as located was a public nuisance created by the defendants and allowed by them to become and remain a constant and standing menace and nuisance.

"The action is against Davidson county and W. C. Hirsig, H. B. Chadwell, W. M. Pollard, S. F. Newsom, and J. R. Allen, as members of the county workhouse board, and George Hobson, superintendent of the county workhouse, they being sued in their individual, as well as official character, and the damages sued for are laid at $25,000.

night of the injury was coming from the city of Nashville with three other young ladies, and after alighting from the street car, a short distance away, was passing up the roadway going to the home of W. S. Noble, where the plaintiff was a visitor. When thus approaching the gateway entrance to the grounds of the Noble home, in the darkness, an automobile approached from the rear at a very rapid rate of speed, and, in their effort to reach the entrance or gateway and avoid a collision with the machine, the plaintiff fell into the hole.

The injuries suffered by the plaintiff as the result of the fall were quite serious. She had never regained her strength, was in a very de pleted physical condition, and has been unable to discharge the ordinary duties of life devolving upon her, and at the same time she was examined she was a great sufferer. The entire scope of her difficulties are attributable, according to the record, to the injuries sustained from this fall. It is shown that the plaintiff was not familiar with conditions as they existed at this

"The court below, upon the conclusion of the evidence, and upon motion by them to that end, instructed the jury to return a verdict in favor of the defendants Pollard, Hirsig, Allen, Chad-time, growing out of the improvement of the well, and Newsom, which was accordingly done, and the suit dismissed as to them, both in their capacities as workhouse commissioners, and as well individually.

pike, including the excavation that has been made upon the said roadway and into which she fell and was injured. The night was dark and she could not see the hole or excavation.

She

"The jury returned a verdict in favor of with her companions were being pressed upon George Hobson, and the suit was dismissed by by the approaching automobile; the horn was the court as to him. The jury found the issues being blown and the alarm sounded, and this in favor of the plaintiff and against the defend- greatly excited and frightened the ladies, inant Davidson county and assessed damages including the plaintiff. No serious question seems her favor and against the county in the sum of to be made but that the injuries which the $10,000, whereupon judgment was so pronounc- plaintiff suffered were serious and perhaps pered and for costs, and from the result thus reachmanent." ed and judgment so pronounced this appeal is being prosecuted, and errors have been assigned by Davidson county for the alleged error in pronouncing judgment against it according to the verdict of the jury, and by Ada Chandler, the plaintiff, who filed the record for error, because of the court's action in dismissing the case or awarding peremptory instructions of dismissal as to the defendants workhouse commissioners, Pollard, Hersig, Chadwell, Allen, and New

som.

"It is altogether clear, we think, under the record, that the roadway in question was being constructed or repaired at the point where the accident to plaintiff occurred, resulting in her injury, under the authority of Davidson county,

The Court of Civil Appeals took the view that Davidson county was not liable for the injuries sustained by plaintiff, and reversed the circuit court and dismissed the suit as to it. A petition for writs of certiorari was filed in this court, and the case has been argued at the bar.

It is insisted for the county that it is not liable in any case for the negligence of its officers and agents, while, on the contrary, it is insisted for plaintiff that the action of the county's agents as set out by the Court of Civil Appeals is a nuisance, both public and private, and the county does not have plaintiff in error, through and under the control or supervision of the board of road commis-immunity from committing a nuisance either sioners, W. M. Pollard, W. G. Hirsig, H. B. at law or in equity.

It

the discharge of their public duties upon the
thought that there is no statute making it so
liable, and the liability does not exist at com-
mon law, because of the limited nature of
the corporate character of the county.
is not a general corporation, and is not or-
ganized for the purpose of exercising fully
the functions of government. Its governmen-
tal capacity is much limited, and it exercises
such powers of government as it has by vir-
tue of the statute.

Ordinarily, there is a common distinction, liable in tort for negligence of its agents in between counties and municipalities in their corporate character. Counties are not created for the purpose of general government, and because of this fact it has been said that they are corporations of low character, and cannot discharge corporate duties in the broad sense in which municipalities can discharge them. In Burnett v. Maloney, 97 Tenn. 697, 37 S. W. 689, 34 L. R. A. 541, it was said in substance that counties have their creation in the Constitution, and the statutes confer on them all the powers which they possess, prescribe all the duties they owe, and impose all the liabilities to which they are subject. Considered with respect to their powers, duties, and liabilities, they stand low down in the scale of corporate existence. They are ranked as quasi corporations. They possess no powers except such as are conferred expressly or by necessary implication, and those are strictly construed and must be strictly pursued. They are distinguishable from private corporations aggregate, and from municipal corporations proper, which are more amply endowed with corporate life and function, because such corporations are intended to exercise the general functions of government over the inhabitants within the corporate limits. It is also said in this case that counties are not liable to implied common-law liabilities as municipal corporations are.

In Whites Creek Turnpike Co. v. Davidson Co., 82 Tenn. (14 Lea) 73, it was held that the liabilities of counties could not be increased by implication, and that the legislation effecting such an increase must be positive.

In Wood v. Tipton County, 7 Baxt. (66 Tenn.) 112, 32 Am. Rep. 561, the court decided the power of county courts over roads and bridges, and held that this power was a prerogative of sovereignty delegated by the Constitution to the county court. It was said in that case that the county is declared a corporation "to facilitate the execution of the powers delegated to it as a local Legislature, and to enable it to make binding contracts and to be liable to suit for just claims arising under such contracts. But this is the extent to which, as corporations, counties can be sued."

It was generally considered by the courts and the profession that the citizen had no remedy against the county for an injury caused by the neglect of the county to keep the public road in good repair. Williams v. Taxing District, 16 Lea, 531; Wood v. Tipton, supra; Turnpike Co. v. Davidson County, supra; Id., 14 Lea, 73; McAndrews v. Hamilton County, 105 Tenn. 400, 58 S. W. 483; Rhea County v. Sneed, 105 Tenn. 581, 58 S. W. 1063; State v. Wayne County, 108 Tenn. 262, 67 S. W. 72; 11 Cyc. 497.

These cases all hold that the county is not

[1, 2] But such is not the question involved herein. Its nonliability for misfeasance of its agents is conceded by plaintiff, but it is insisted that the county, as a legal entity endowed by the Legislature with power to build roads, is not authorized to commit a nuisance either public or private. We think this is true, and we also think that the condition created by the construction of the ditch as described herein is a nuisance as it stands. In the case of Pierce v. Gibson County, 107 Tenn. 233, 64 S. W. 33, 55 L. R. A. 447, 89 Am. St. Rep. 946, this court said that it was well settled that neither a municipality nor a county, in the construction of a public work, could commit a nuisance to the special injury of citizens, and for such act is liable as a private individual in damages. This, of course, is common-law liability, and is based upon well-settled principles of the common law. No individual, natural or legal, has a right to commit a nuisance to the injury of the public or individuals.

[3] The distinction between the act of the county in failing to keep the roads in proper repair and its act in constructing a new road, or remodeling an old one so as to create a nuisance, is perfectly plain. In constructing the new road the county acts for the sovereign, for the reason that the state has delegated its sovereignty to the county for the purpose of constructing the road; but the state has not authorized it to commit a nuisance, because such an act is not an attribute of sovereignty. The sovereign can do no wrong, and it is unthinkable that it could commit or maintain a nuisance. We think this is the theory of the distinction between the two acts. The practical justice of it we think is equally plain. It is not within the power of a citizen to prevent the county from deciding to construct a road at any time or place it may think the public welfare requires. Southern Railway v. Memphis, 126 Tenn. 267, 148 S. W. 662, 41 L. R. A. (N. S.) 828, Ann. Cas. 1913E, 153. The law would be inadequate in this situation to permit the county to construct the road and hold it immune from responsibility for creating and maintaining a nuisance. It cannot erect a nuisance upon the property of a citizen so as to deprive or impair the use of such property.

[4] In this case the nuisance consists of

(218 S.W.)

the construction and maintenance of the ditch, and not of building the pike. Building the pike is one of the corporate functions of defendant, and is authorized by statute. Constructing the ditch so as to obstruct the ingress and egress of plaintiff to the premises of her host, and maintaining the ditch as it was maintained, is the actionable nuisance from which plaintiff has a cause of action. There is no dispute in the record of the nature and extent of plaintiff's injuries, and there is no suggestion in this court that the verdict and judgment for $10,000 were excessive. In the case of creating and maintaining a nuisance, as this case plainly is, both the county and its servants and agents would be liable. The Court of Civil Appeals reversed and remanded the case against the agents and dismissed the case against the county. We think this was erroneous and that all are liable; but the cases of the county's agents and servants are not before us, as no petitions were filed for certioraries for them. The petition was filed as to the case against the county alone.

In so far as the Court of Civil Appeals reversed the case against the county of Davidson, we think it was in error, and the same is reversed, and judgment is entered here for the amount of the verdict and the judgment of the circuit court.

3. SCHOOLS AND SCHOOL DISTRICTS 81(2)—
CONTRACTOR'S BOND TO FURNISH NECESSARY
MATERIAL AND LABOR DID NOT INURE TO
BENEFIT OF MATERIALMEN.

A bond given by a contractor on a school building, conditioned to provide all labor and material necessary for the construction of the furnishing the contractor with labor or matebuilding, did not inure to the benefit of those

rial.

4. SCHOOLS AND SCHOOL DISTRICTS 86(2)— No LIEN ON SCHOOL BUILDING FOR MATERIAL FURNISHED.

Furnishers of materials on a public school building in the course of construction by conschool district is not liable to one who furtractor have no lien on the property, and the nishes material to the contractor.

81(2)—

5. SCHOOLS AND SCHOOL DISTRICTS
SURETY ON CONTRACTOR'S BOND NOT LIABLE
FOR VOLUNTARY PAYMENT OF MATERIALMEN
BY OWNER.

A surety on the bond of a contractor constructing a school building was not liable to the school commissioners, who paid a creditor of the contractor when they were under no obligation to do so.

6. SCHOOLS AND SCHOOL DISTRICTS 84-
CONTRACTOR AND SURETY ON SCHOOL BUILD-
ING LIABLE FOR UPKEEP OF BUILDING FOR
ONE YEAR AND FOR DEFECTIVE WORKMAN-
SHIP AND MATERIAL.

A contract and bond for the construction of a school building held to render the contractor and surety liable for the upkeep of the building for a period of one year from and after its completion, as well as for any defective work

TENNESSEE SUPPLY CO. et al. v. BINA manship or material used in its construction.

1. REFORMATION OF INSTRUMENTS 45(13)—
SCHOOLS AND SCHOOL DISTRICTS 81(2)-
REFORMATION OF CONTRACTOR'S BOND PROP-
ERLY REFUSED IN ABSENCE OF SHOWING OF
DIFFERENT AGREEMENT.

In an action by materialmen wherein it was sought to hold school commissioners individually liable for materials furnished a contractor in the construction of a school building, on the ground that the bond executed by the contractor was not drawn up so as to comply with Laws 1899, c. 182, evidence held not to show that there was any agreement or any understanding between the commissioners and the contractor and surety to the effect that the bond was to cover labor and materials furnished as provided by such act, and a reformation was properly refused.

2. SCHOOLS AND SCHOOL DISTRICTS 81(2)— CONTRACTOR'S BOND DID NOT COMPLY WITH STATUTE.

A bond executed by a contractor constructing a school building held not to comply with Laws 1899, c. 182, an act protecting laborers and furnishers of material on public works.

7. SCHOOLS AND SCHOOL DISTRICTS 86(2)—
FINDING BY CHANCELLOR AS TO AMOUNT OF
DAMAGES CAUSED BY DEFECTIVE WORKMAN-
SHIP AND MATERIAL SUSTAINED.

In an action wherein school commissioners sought damages from a contractor and his surety due to defective workmanship and material used in the construction of a school building, a finding by the chancellor of damages in the sum of $4,171.92 held proper under the evidence.

Appeal from Chancery Court, Monroe County; T. L. Stewart, Chancellor.

Action by the Tennessee Supply Company and others against Bina Young & Son and others, in which some of the defendants filed a cross-bill. From a decree in favor of plaintiffs and in favor of the cross-complainants against the cross-defendants, crosscomplainants and cross-defendants appeal. Affirmed.

D. Sullins Stuart, of Cleveland, for Ten-
nessee Supply Co. and others.
Jourolmon & Welcker, of Knoxville, for
City of Jellico and Commissioners.

Maynard and Lee, of Knoxville, for United
Casualty & Surety Co. and Bina Young, Jr.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
218 S.W.-15

"Witness our hands and seals, this 25th day Young, Jr. [Seal.] United Casualty & Surety of March, 1914. Bina Young & Son, by Bina Co., by C. J. Goodman, Sect'y & Treas. [Seal.]"

MCKINNEY, J. On February 18, 1914, the | or covenants in said contract and specifications, city of Jellico, through its school commis- then this obligation shall remain in full force sioners, entered into a written contract with and effect. the defendants Bina Young & Son for the erection of a school building in Jellico, according to the plans and specifications prepared by R. F. Graf & Sons, architects, which plans and specifications were made a part of the contract. Said contract provided that

"The contractor shall and will provide all the materials and perform all the work for the general construction of the school building for Jellico, Tenn., as shown on the drawings and described in the specifications prepared by R. F. Graf & Sons, architects, which drawings and specifications are identified by the signatures of the parties hereto, and become hereby a part of this contract."

To guarantee the faithful performance of said contract said contractors executed the following bond, to wit:

"Contractor's Bond.

"Know all men by these presents: That we, Bina Young & Son, at Sweetwater, Tenn., as principals, and the United Casualty & Surety Company, as sureties, are held and firmly bound unto the city of Jellico, by its school board commission of Jellico, Tenn., in the sum and penalty of $9,000, to the payment of which we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these pres

ents.

"The condition of this obligation is that Bina Young & Son, Sweetwater, Tenn., the abovebound principal obligors, have entered into a contract with the Jellico school board commission to construct and complete in all its parts, and furnish all the materials and labor therefor, certain structures for the said Jellico school board commission, on or before the 15th day of October, 1914, and to complete the same in accordance with the contract, plans, and specifications therefor, in a workmanlike manner, as therein provided, and to the acceptance of R. F. Graf & Sons, architects. Said contract, plans, and specifications, for the purpose of a full and complete understanding of

their terms and conditions, are made a part of this undertaking, as fully as though copied herein, word for word.

"Now, therefore, if the above-bound Bina Young & Son, principal obligors, shall well and truly perform said contract and specifications, in the manner and within the time therein

The school building was completed about March 4, 1915.

On March 10, 1915, the complainants, who furnished the materials used in the construction of said building, and for which they had not received payment, filed the bill in this cause, as a general creditors' bill, against said contractors, Bina Young & Son, the United Casualty & Surety Company, security on said bond and the school commissioners, both in their official capacity and as individuals.

In said bill it was alleged that said contractors were insolvent; that the members of the school commission were individually liable because they did not take said bond in conformity with chapter 182 of the Acts of 1899, which provides that all officials taking bonds for public improvements shall be personally liable where they fail to take a bond conditioned to pay for all material and labor used in the contract; and said bill further charges that, in the event the court should be of the opinion that said school commissioners were not liable, they have a decree for their claims against said contractors and the surety on their bond.

All parties answered, denying liability.
The school commissioners filed a

cross

bill against said contractors and their surety, alleging that, in the event the court should be of the opinion that they were liable to the complainants, they then have a decree over against the contractors and their surety.

Later they filed a supplemental bill, in which they charged that the contractors had not erected said building according to contract, and asked that they be decreed damages on account of such breach.

They also charged in said cross-bill that it was the intention of the parties to have said bond drawn so as to comply with chapter 182 of the Acts of 1899, and prayed that said bond be reformed accordingly.

On the hearing the chancellor decreed that said bond was not drawn in compliance with chapter 182 of the Acts of 1899; that the

specified, and according to the letter and spirit thereof, then this obligation shall be void; but if said Bina Young & Son shall fail to perform said contract in all its parts, and according cross-complainants, under the facts, were to the terms, tenor, and specifications thereof, and within the time limit therein fixed, and especially if they shall fail to pay and discharge any and all obligations on their part created and outstanding that may or shall constitute a lien upon said structures, or if they shall fail to maintain said structures if and when completed for a period of one year, as provided by the terms of the contract and specifications, or if they shall make default or fail in respect of the performance of any of the terms, conditions,

not entitled to have said bond reformed so as to comply with said act of 1899; that the complainants were entitled to a decree against the school commissioners and the contractors, Bina Young & Son, for the amount of their claims; that they were not entitled to a decree against the surety company on said bond, and dismissed their bill to that extent.

On the cross-bill the chancellor decreed

(218 S.W.)

that the contractors and their surety were, for the aggregate amount of the decree in this liable for defective work and material used cause for materials furnished Bina Young & Son in the construction of said school building, by materialmen, to wit the sum of $3,980.77 and ordered a reference to the master to and interest thereon and costs of the cause." take proof and report as to the amount of the damages resulting from the breach of said contract.

The evidence does not support this contention. Not a witness testifies as to any agreement or understanding, especially as to the surety company, to the effect that the bond was to cover labor or material furnish-ent School Dist., 121 Iowa, 663, 97 N. W. 72; ed as provided by the act of 1899.