Williams v. Stillwell
88 Ala. 332
Ala.
1889
Check Treatment
STONE, C. J.

In Lee County v. Yarbrough, 85 Ala. 590, we said: “ The liabilities of counties, for injuries caused by defective public bridges, is purely statutory; for, in the absence of statute, there is no liability.” "We cited many authorities in support of that propositoin. The principle announced is, that when a public bridge is constructed under contract with a third person as builder, and a bond or other guaranty has been taken from the builder, then, for an injury caused by defective structure, or want of necessary repairs, if suffered during the term covered by the guaranty, redress must be sought against the builder, and on the bond or guaranty. On the other hand, when the bridge is constructed under contract made with the builder, and no guaranty is or has been taken, or the period covered by the guaranty has expired, then, for such injury, suit may be brought, and a recovery had against the county. — Code of 1886, § 1456. We have many times declared these rights ,of action are of purely statutory creation, and that without the statute no recovery could be had against the county, and the action provided for could not be maintained against the builder. These principles are clearly set forth in the previous rulings of this court, many of which are cited in Lee County v. Yarbrough, supra.

• It is certainly true, that in the performance of service or work under contract, the servitor or workman may act so unskillfully or negligently as to do the ' employer a wrong, beyond the mere breach of his contract. Such wrong is a tort, for which the employer may maintain an action on the case, or, if the wrong be a breach of any term of the servant’s contract, he may maintain an action ex contractu, at his election. — Mobile Life Ins. Co. v. Randall, 74 Ala. 170. But this right to sue in tort extends no further than to the employer, and, in some cases, to those who succeed to his legal rights.

The gravamen of the present action, as we understand it, *335is, that Stillwell, tbe defendant, violated bis contract with the. court of County Commissioners, in this, that he failed to keep in proper repair the county bridge, from which defect the plaintiff alleges she suffered the injury she complains of; an alleged violation of the contract on the part of Still-well, to keep the county bridges in repair. It is nowhere shown that Stillwell built the bridge, and, as builder, guaranteed its safety by bond, or otherwise. The suit is not brought on any alleged contract of guaranty. It is not a suit ex contractu, but an action on the case, and claims damages, as the result of the defendant’s failure to comply with his contract with the court of County Commissioners. No authority has been cited, and we know of none, which authorizes A to maintain an action against B, for an alleged injury suffered from the latter’s failure to comply with a contract made with C.

This case is entirely without the influence of the statute; and inasmuch as there is no principle of the common law authorizing such a suit, the demurrer was rightly sustained to the complaint, as originally framed, and as amended.

Affirmed.