Di Camillo v. Westinghouse Elec. Corp., 1592
| Decision Date | 29 July 1960 |
| Docket Number | No. 1592,1592 |
| Parties | Vincent DI CAMILLO and the Ohio Casualty Insurance Company, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Jonas & Riddle, Miami Beach, for appellants.
Fisher, Dickinson & Prior, West Palm Beach, for appellee.
Vincent DiCamillo as principal and Ohio Casualty Company as surety, defendants in the suit below, hereinafter referred to, respectively, as DiCamillo and the surety, executed to Jupiter Corporation an Owner's Protective Bond which contained the following provisions pertinent to the issue here involved:
'* * * if Principal shall faithfully perform such contract and pay all persons who have furnished labor or material for use in or about the improvement and shall indemnify and save harmless the Owner from all cost and damage by reason of Principal's default or failure so to do, then this obligation shall be null and void; otherwise it shall remain in full force and effect.
'All persons who have furnished labor or material for use in or about the improvement shall have a direct right of action under the bond, subject to the Owner's priority.'
DiCamillo had entered into a contract with Jupiter Corporation to do certain construction work on its property known as Salhaven Retirement Village. During the course of effectuating the improvements comprehended by the contract with the owner, DiCamillo engaged as subcontractor the J. R. Hime Electric Company, Inc., to which company Westinghouse Electric Corporation, plaintiff below, hereinafter referred to as Westinghouse, furnished electrical supplies and labor for which there was eventually an outstanding balance due of $13,264.60. The subcontractor was paid all but $7,500 of the amount due for the electrical work and supplies, but DiCamillo, learning that the subcontractor had defaulted as to payments to Westinghouse, withheld and deposited that sum in the registry of the court prior to the filing of the suit.
Westinghouse, asserting that it had a right to direct action under the bond, filed suit for recovery of the unpaid sum due it for the electrical supplies and labor furnished. Final judgment was entered in which the court held that under the bond DiCamillo and the surety agreed to pay all persons who furnished labor or material and adjudged that Westinghouse have and recover from them the full amount due plus interest and costs.
DiCamillo and the surety, appealing from that judgment, assert that Westinghouse is a remote materialman supplying labor and material to a subcontractor and therefore has no right of action under the bond. In support of this, they urge that the bond in question was entered into for the sole benefit and protection of the owner, that DiCamillo never contracted with Westinghouse, and that the subcontractor had received payment for the entire amount due except for that sum reposing in the registry of the court. They complain that the lower court's holding has the effect of requiring them to pay again for electrical work already paid for.
As we see it, the real question on appeal is whether Westinghouse, the supplier of labor and materials to J. R. Hime...
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