Morse v. Hendry Corp., 7451
| Decision Date | 30 June 1967 |
| Docket Number | No. 7451,7451 |
| Parties | Philip C. MORSE, Jr. and Boat Haven Naples, Inc., a Florida corporation, Appellants, v. HENDRY CORPORATION, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Walter R. Condon, of Condon & McDaniel, Naples, for appellants.
James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellee.
Appellants, who were plaintiffs in the trial court, brought an action against the defendant Hendry Corporation, seeking damages caused by the blasting operations of the defendant.
Hendry Corporation entered into a contract with the United States Government to perform certain work on a channel running in close proximity with U.S. Highway No. 41 where plaintiff's property was also located. Plaintiff Morse was the owner of a marina which he leased to Boat Haven Naples, Inc. Both Morse and his lessee were parties plaintiff in this cause of action. Pursuant to the contract, the defendant performed certain blasting operations; and plaintiffs have alleged that as a result of concussions caused by the blasting operations their property was damaged.
Plaintiffs' amended complaint contained three Counts. Count I predicated liability on the theroy of third party beneficiary, Count II on absolute liability, and Count III on negligence. The trial court granted defendant's motion to dismiss as to Counts I and II. Plaintiffs attempted to appeal this order and in Morse v. Hendry Corporation, 177 So.2d 31, Fla.App.1965, without prejudice to plaintiffs to raise the assignments of error at the proper time, we held that the order of dismissal was not one from which an appeal could be taken. Plaintiffs then chose not to proceed on the theory of negligence alone and filed an instrument entitled Suggestion of Lack of Evidence as to Negligence. The trial court entered final judgment in favor of defendant, and this appeal followed. The question simply stated here is did the trial court err in dismissing Counts I and II of plaintiffs' complaint.
Florida has long recognized the propriety of a third party beneficiary who is not a party to a contract suing for damages as result of the acts of one of the parties to the contract. Mugge v. Tampa Waterworks Company, 53 Fla. 371, 42 So. 81 (1906); Woodbury v. Tampa Waterworks Company, 57 Fla. 243, 49 So. 556 (1909); Di Camillo v. Westinghouse, 122 So.2d 499, Fla.App.1960. Upon examination of the complaint and contract attached thereto, we believe sufficient facts have been alleged for this cause to proceed to trial on the...
To continue reading
Request your trial
-
Dyer v. Maine Drilling & Blasting, Inc.
...79 A.2d 591, 595-96 (1951); Catholic Welfare Guild, Inc. v. Brodney Corp., 208 A.2d 301-02 (Del.Super.1964); Morse v. Hendry Corp., 200 So.2d 816, 817 (Fla.Dist.Ct.App.1967); Brooks v. Ready Mix Concrete Co., 94 Ga.App. 791, 96 S.E.2d 213, 215 (1956); Beckstrom v. Hawaiian Dredging Co., 42 ......
-
Marks v. Delcastillo
...to Marks Brothers to be dangerous in the extreme and thus to involve an "unreasonable risk of harm" to licensees. Morse v. Hendry Corp., 200 So.2d 816 (Fla.2d DCA 1967). Moreover, even the appellants do not seriously urge that, as a matter of law, they complied with the duty stated in 2 Res......
-
Davis v. L & W Const. Co.
...Co., (2 Cir.) 54 F.2d 510, 512--513; Garden of the Gods Village v. Hellman, 133 Colo. 286, 294 P.2d 597, 600--601; Morse v. Hendry Corporation, Fla.App., 200 So.2d 816, 817; Berg v. Reaction Motors Div., 37 N.J. 396, 181 A.2d 487, 492--494; Davis v. Georgia-Pacific Corporation, supra, loc. ......
-
Thompson v. Commercial Union Ins. Co. of New York
...of the parties to the contract. See Weimar v. Yacht Club Point Estate, Inc., 223 So.2d 100 (Fla.App.4th, 1969); Morse v. Hendry Corporation, 200 So.2d 816 (Fla.App.2d, 1967); DiCamillo v. Westinghouse Electric Corporation, 122 So.2d 499 (Fla.App.2d, 1960) (materialman as third party benefic......