Doheny
United States Fidelity & Guaranty Co. v. Doheny
Opinion
Concurring Opinion
Iianey, J.
(concurring).
The contract with the state required the firm to “carry public liability insurance to indemnify the public for injuries or damages sustained by reason of the carrying on the work” and to furnish a surety bond. On the same day the contract was signed, a bond, with appellant as surety, was furnished containing the following condition that if the firm " * * * shall in all respects faithfully perform all of the provisions of said contract, and his, their or its obligations thereunder * * * and shall save harmless the State of Montana * * * from any damages growing out of the carelessness of said Contractor or his, their, or its servants * * * then this obligation to be void or otherwise to be and remain in full force and virtue.”
A policy, with appellant as insurer, was thereafter furnished, but its provisions excluded liability for the accident in question.
First. In determining the liability of the surety, the contract and bond are to be construed together. Federal Surety Co. v. Basin Const. Co., 91 Mont. 114, 126 , 5 P.2d 775 . By becoming surety, appellant assumed obligations which were “coextensive with and measured by the promises of the principal to the obligee…
Lead Opinion
Healy, J.
In December, 1934, Roberta and Marguerite Doheny were killed in a highway accident in Montana while riding as guests in an automobile operated for the partnership of Coverdale & Johnson. In suits in the state court for their wrongful death, appellee, as administratrix, recovered two judgments of $5,116 each against the partnership. Doheny v. Coverdale & Johnson, 104 Mont. 534 , 68 P.2d 142 . Appellant, which had issued a public liability policy to the partnership, participated in the defense of these actions. Writs of execution against the judgment debtor having been returned unsatisfied the present suits were brought against appellant as insurance carrier. From judgments in favor of appellee the insurer appeals.
The partnership on September 21, 1934, entered into a contract with the state of Montana for the construction of several bridges on the Augusta-Sun River road in Lewis and Clark county. “As a condition precedent to the complete execution” of that contract the partnership was required to furnish a surety bond for its faithful performance. Such bond was written at that time by appellant, the condition of its bond being that the contractor “shall in all respects faithfully…