Threlkeld v. Tortuga Marine Salvage Co.
| Decision Date | 20 May 1969 |
| Docket Number | No. 68--693,68--693 |
| Parties | Major E. THRELKELD, Appellant, v. TORTUGA MARINE SALVAGE COMPANY, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Fowler, White, Collins, Gillen, Humkey & Trenam and Reginald M. Hayden, Jr., Miami, for appellant.
Shutts & Bowen and Phillip G. Newcomm, Miami, for appellee.
Before PEARSON and HENDRY, JJ., and LOPEZ, AQUILINO, Jr., Associate Judge.
This appeal represents the latest in a long, complex series of legal proceedings which stem from the following basic facts: (a) a contract was entered into between the United States Government and 'Major E. Threlkeld, trading as Tortuga Marine Salvage Company' for the completion of certain salvage work; (b) under the governing law at the time of the contract, Threlkeld, trading as Tortuga Marine Salvage Company, was required to execute a performance bond upon which Hartford Accident and Indemnity Co. was surety, this bond being given in order to guarantee the performance of Threlkeld's obligations under the contract; (c) Threlkeld, trading as Tortuga Marine Salvage Company, did not perform his obligations to the United States in accordance with said contract, and because of such default, it became necessary for Hartford to pay out approximately $22,000.00 pursuant to the terms of the indemnity and surety bond; (d) thereafter, in an effort to recover the monies it had paid out pursuant to Threlkeld's default, Hartford filed suit against Major E. Threlkeld, trading as Tortuga Marine Salvage Company, and recovered a default judgment in the Circuit Court of Dade County for $24,621.70.
In the meantime, Major E. Threlkeld, trading and doing business as Tortuga Marine Salvage Company, had filed a separate law suit in the Circuit Court of Dade County against Caballero, Herdegen & Knight, Inc., a Florida corporation. In that action, the plaintiff sought a declaration as to whether there was insurance covering a particular motor ship, The Harry Stull, when an accident occurred which destroyed the ship, a declaration as to which of the named defendants was liable to him, and a money judgment against such liable defendants. The first of those proceedings to reach this court was an interlocutory appeal, wherein we required the court below to conduct further proceedings as to the issue of liability. See Caballero, Herdegen & Knight, Inc. v. Threlkeld, Fla.App.1962, 142 So.2d 124.
After our remand, the questions of liability and damages were decided against the several defendants, and a plenary appeal followed to this court. Caballero, Herdegen & Knight, Inc. v. Threlkeld, Fla.App.1963, 155 So.2d 850. By that appeal, we affirmed the lower court's decree, which imposed liability and assessed damages for the loss of the ship at $41,199.98.
Thereafter, the amount of the above judgment plus costs, was paid into the registry of the court. Hartford then filed an action of garnishment in order to collect the judgment it had won in its action against Threlkeld, trading as Tortuga Marine Salvage Company. The garnishment was successful, and Hartford satisfied its judgment, plus interest, from the funds which had been paid into the registry of the court by Caballero, Herdegen & Knight, Inc.
The instant case was initiated by the Tortuga Marine Salvage Company against Major E. Threlkeld in his individual capacity. The cause of action was for money had and received by the defendant for the use of the plaintiff. The theory underlying plaintiff's action was that the $41,199.98 recovered by Major E. Threlkeld, trading as Tortuga Marine Salvage Company, was the property of the corporation, not that of Threlkeld individually. The underlying theory continues that the obligation as to Hartford Accident & Indemnity Company was that of Major E. Threlkeld, individually, not a corporate obligation of Tortuga Marine Salvage Company. Finally, the theory concludes, the money which was applied to satisfaction of the judgment obtained by Hartford, was rightfully owned by the corporation and therefore unlawfully used by the individual, Major E. Threlkeld.
There are numerous legal theories advanced by both parties to this appeal in order to sustain their own positions in this cause. However, the two fundamental questions which govern our decision here are as follows: (1) to whom did the insured ship The Harry Stull, for which insurance proceeds were recovered in the action against Caballero, Herdegen & Knight, Inc., belong? and (2) upon whom did the obligation to Hartford Accident & Indemnity Company, as per the performance and surety bond given to assure performance of a contract with the U.S. Government, fall?
As to the ownership of the ship, the record amply sustains the appellee's position that The Harry Stull was the property of the corporation. Moreover, the insurance contract which was the subject of the earlier appeals, 142 So.2d 124, and 155 So.2d 850, was paid for by Tortuga Marine Salvage Company. The Harry Stull also was purchased by Tortuga Marine Salvage Company. However, some clarification is needed as to a certain statement which appears in Caballero, Herdegen & Knight, Inc. v. Threlkeld, supra, at page 850--851. In that opinion, Judge Horton said:
'In the prior appeal (Fla.App. 142 So.2d 124) this court noted in affirming a portion of the summary decree appealed that certain 'undisputed material facts' had been resolved, i.e., that the appellee Threlkeld was the owner of the vessel in question, * * *'
It is the appellant's contention that the above statement conclusively demonstrates that the motor vessel, The Harry Stull, was owned individually by Major E. Threlkeld. This is not the case. The reference above to 'appellee Threlkeld' obviously referred to an abbreviated notation of the appellee's entire stlye, i.e., 'Major E. Threlkeld, trading as Tortuga Marine Salvage Company, a Florida corporation'. Moreover, the record...
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