Treadway v. Terrell

158 So. 512, 117 Fla. 838

• Court: Supreme Court of Florida
• Decided: January 4, 1935
• Status: Published

Opinions

STATEMENT. The following organic provision, statutes and proceedings are pertinent to the matters involved in this clause:

"Provision may be made by general law for bringing suit against the State as to all liabilities now existing or hereafter originating." Sec. 22, Art. III, Constitution; State,ex rel., v. Love, 99 Fla. 333, 126 So. 374.

"CHAPTER 15022 (No. 384). "AN ACT Authorizing Suits at Law and in Equity to Be Brought and Maintained Against the State Road Department of the State of Florida on Any Claim Which Has Arisen Since June 7, 1923, Under Contract for Work Done or Which May Hereafter Arise Under Contract for Work Done and Limiting the Time in Which Suits May Be Brought, and Providing That Such Suits Against Said State Road Department Shall Be Cognizable Only in the Courts of the State of Florida and Providing How Process Shall Be Served Upon Said State Road Department.

"Whereas, Chapter 9312, Laws of Florida, Acts of 1923, entitled 'An Act relating to the State Road Department imposing certain duties upon said Department and conferring certain powers upon the same,' approved June 7, 1923, in and by Section 4 thereof, provided that suits at law and in equity might be maintained against the State Road Department on any claim arising under contract for work done; and,

"Whereas, the Supreme Court of Florida, by its opinion filed February 14, 1930, did determine that the authority so conferred by, said Section 4 of said Act to maintain such suits was not expressed in the title to said Act, and that for that reason the authority so granted by said Act to maintain such suits was ineffectual; and,

"Whereas, the intention of the Legislature in and by Section 4 of said Act was to authorize such suits to be brought against the said State Road Department in the manner and form therein stated from and after the time when said Chapter 9312, Laws of Florida, took effect, and it is in the public interest that such legislative intent should be effective, notwithstanding the said defect in the title to said Chapter 9312, Laws of Florida, Acts of 1923; Now, therefore,

"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF FLORIDA:

"Section 1. Suits at law and in equity may be brought and maintained against the State Road Department of the State of Florida on any claim which has arisen since June 7, 1923, under contract for work done, or which may hereafter arise under contract for work done. A claim shall be deemed to have arisen since June 7, 1923, in any instance where the work done was completed after said date. Provided, that no suit sounding in tort shall be maintained against the said State Road Department.

"Section 2. Suits against the State Road Department under this Act upon any claim arising prior to the time when this Act shall become a law can only be commenced within one year from and after the time when this Act shall become a law.

"Section 3. Suits against the State Road Department under this Act upon any claim arising after the time when this Act shall become a law can only be commenced within two years from and after the completion of the work done.

"Section 4. All actions and suits brought against the State Road Department under the provisions of this Act shall be cognizable only in the courts of the State of Florida. Service of process in suits against said Department shall be made upon the Chairman of the said State Road Department, or, in his absence, upon two other members of said Department.

"Section 5. This Act shall take effect upon its becoming a law.

"Became a law without the approval of the Governor." (Chapter 15022, Acts of 1931.)

Provisions of the Compiled General Laws:

"All parties to any controversy before or after suit thereupon may make a rule of court of any arbitration to which they may desire to submit such controversy." Sec. 4552 (2855) C. G. L.

"An arbitration may be made a rule of court by the parties filing in the court which would have jurisdiction of the controversy if it were not submitted to arbitration, a statement in writing signed by each party of the agreement of matters to be submitted to arbitration, and the name of the arbitrator or arbitrators, and an umpire selected by them. The clerk of the court (or the court if it have no clerk) shall record said statement in the minutes of the court, and thereupon the arbitrator or arbitrators and umpire shall have the powers hereinafter specified." Sec. 4553 (2856) C. G. L.

"The award shall be in writing, signed by a majority of the arbitrators, or arbitrators and umpire, shall state the adjudication in full, and shall be filed and recorded in the court of which the arbitration is a rule." Sec. 4556 (2859) C. G. L.

"If any award be entered of record, so much thereof as decrees the payment of money by either party shall have the force and effect of a judgment from the day of entering said award, upon which execution may be issued as in cases of judgment duly entered; and so far as the award relates to the performance of any other lawful act, the party failing to comply with said award shall be considered in contempt, and by the order of court shall be committed to prison, there to remain without bail until he shall comply with the order of the court in the premises." Sec. 4560 (2863) C. G. L.

In Prohibition proceedings it appears that the following declaration was filed December 7, 1931, and other proceedings had.

"IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT OF FLORIDA IN AND FOR LEON COUNTY, FLORIDA. No. 1884.

"C. F. LYTLE, Plaintiff, v. THE STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, Defendant.

"ACTION AT LAW, DAMAGES $250,000.00.

"DECLARATION.

"C. F. LYTLE, plaintiff by Knight Adair, Cooper Osborne, his undersigned attorneys, sues THE STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, defendant herein, for:

"1. Money payable by the defendant to the plaintiff for work done and materials furnished by the plaintiff for the defendant at the defendant's request.

"2. And for a second count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money paid by the plaintiff for the defendant at the defendant's request.

"3. And for a third count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff.

"4. And for a fourth count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them.

"5. And for a fifth count the plaintiff sues the defendant for that heretofore on, to-wit, the 2nd day of March, A.D. 1925, by contract bearing said date made by and between the plaintiff and the defendant, a copy of said contract being filed herewith and marked 'Exhibit A' and made by reference a part hereof, the plaintiff agreed to do certain work (hereinafter referred to as 'said work') by furnishing the materials and performing the labor described and specified in said contract, including such extra work as might be deemed necessary or desirable by said defendant to complete fully the work as contemplated by said contract, for and in consideration of the payment by the defendant to the plaintiff of the sums of money described and specified in and by said contract at the times specified in said contract, that thereafter the plaintiff did all of 'said work' and the same, having been theretofore approved by the Engineer of the defendant according to said contract, was, prior to the commencement of this suit, duly and finally accepted by the defendant; that the amount which became due and payable by the defendant to the plaintiff for 'said work' so done as aforesaid was the sum of One Million, Sixty-six Thousand Five Hundred Thirty-four and 74/100 Dollars ($1,066.534.74) and the defendant became and was indebted to the plaintiff in said sum therefor; and although the plaintiff has performed all conditions prescribed on his part, and all events have happened, and all times have elapsed, to entitle the plaintiff to the payment of said sum, and the plaintiff has often requested the defendant to pay the same, yet the defendant has not paid said sum or any part thereof, except the sum of Eight Hundred Fifty-six Thousand, Five Hundred Thirty-four and 74/100 Dollars (856,534.74) paid by the defendant to the plaintiff on or prior to the 18th day of July, A.D. 1927.

"And the plaintiff claims Two Hundred Fifty Thousand Dollars ($250,000.00).

"KNIGHT, ADAIR, COOPER OSBORNE, "Attorneys for Plaintiff."

"Bill of Particulars Hereto Attached.

"Copy of Contract sued upon filed herewith."

"The State Road Department of the State of Florida, Dr.

"To C. F. LYTLE.

"Amount owing on construction of bridge across Manatee River between Bradenton and Palmetto arising from non-payment for one-third of the contents of concrete seals in coffer-dam in construction of piers for bridge .............$ 35,000.00

"Balance owing C. F. Lytle because of his not not having received full payment for concrete construction in piers and abutments of bridge across Manatee River built for the State Road Department ......... 35,000.00

"Balance owing C. F. Lytle because of his the building and construction of piers and abutments in bridge across Manatee River without the use of concrete seals in coffer-dams.................................. 125,000.00

"Amount owing C. F. Lytle for reduction of the height of surface of roadway on bridge across Manatee River after being constructed to grade for the State Road department, the reduction being made on its requisition ..... 5,000.00

"Amount owing for cost of polishing all concrete in bridge across Manatee River built for State Road Department ....................... 10,000.00

"Amount owing to C. F. Lytle for moneys erroneously charged to him for freight on materials not ordered or used by him in construction of road known as project 636 ... 3,300.00 ------------- "Total Amount Due ......................$ 213,300.00

"BILL OF PARTICULARS AS TO FIRST, SECOND, THIRD AND FOURTH COUNTS OF DECLARATION.

"To C. F. LYTLE.

"To amount due by the defendant, the State Road Department of the State of Florida, to the plaintiff, C. F. Lytle, for complete performance by said plaintiff of contract dated March 2d 1925, hereto attached as 'Exhibit A,' made between said parties ......$1,066,534.74

"By amount paid by defendant to plaintiff on account of the foregoing indebtedness ....... 856,534.74 ------------- "Balance due by defendant to plaintiff .........$ 210,000.00

"BILL OF PARTICULARS AS TO FIFTH COUNT OF THE DECLARATION.

"AGREEMENT.

"THIS AGREEMENT, made and entered into this 18th day of April, A.D. 1933, by and between C. F. LYTLE, of Sioux City, Iowa, party of the first part, and the STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, party of the second part.

"WITNESSETH:

"A. That Whereas, certain sums are claimed by the party of the first part to be due to him by the party of the second part for and in connection with the construction by the party of the first part of a bridge over and across Manatee River in Manatee County, Florida, and also for and in connection with the construction of a certain road known as Project 636, and a certain cause is now pending in the Circuit Court of Leon County, Florida, for the recovery of said sums; * * *

"Now, THEREFORE, IT IS AGREED BY AND BETWEEN SAID PARTIES AS FOLLOWS:

"2. That said action at law shall be continued and all proceedings stayed except such as may be necessary to carry out this Agreement, under the statutes of the State of Florida, and that all legal claims, demands and accounts in dispute between the parties arising under contract for work done, including the quantity and value of the work, if any, done by the party of the first part, and all matters involved in said action at law arising under contract for work done shall be submitted for final disposition, adjustment and settlement to a Board of Arbitration to be composed of two Arbitrators and an Umpire;

"3. That the Arbitrators shall be C. Moriarity, now or lately of the City of Des Moines, State of Iowa, who has been selected as an Arbitrator by the party of the first part, and P. L. Wilson, of the City of Miami Beach, State of Florida, who has been selected as an Arbitrator by the party of the second part, and the Umpire shall be Judge Terrell, who has been jointly selected as Umpire by the parties hereto, and all legal claims, demands and accounts in dispute between the parties arising under contract for work done, including the quantity and value of the work, if any, done by the party of the first part and all legal matters involved in said action at law arising under contract for work done are hereby referred to the arbitration of said Board, and the submission to arbitration is hereby made a rule of the Circuit Court for Leon County, Florida, under the statutes of the State of Florida as in such cases made and provided;

"4. That the said Arbitrators and Umpire shall go carefully into the merits of each item of said claims, demands and accounts arising under contract for work done, including the quantity and value of the work, if any, done by the party of the first part, and into all matters involved in said action at law, and shall have full and complete power, authority and jurisdiction to hear and determine any and all disputed matters, accounts, causes of action, claims or demands between the parties hereto arising under contract for work done as fully and completely as the same might be heard and determined by a court of law or equity on appropriate pleadings duly filed in due course in any proper action or suit instituted for that purpose, and shall call for such evidence as they shall deem necessary to a proper determination thereof;

"5. This Arbitration Agreement and the authority of the Board of Arbitration provided for herein shall extend to and include an award upon any lawful set-off or counter claim presented by the State Road Department arising out of the project herein mentioned; * * *

"10. After a full and careful consideration of the claims asserted and all matters involved in said action at law the said Board of Arbitration shall make report of its findings, which said report shall be final and conclusive, and shall be binding upon the parties hereto, and shall be fully performed by the said parties, subject to right of writ of error by either party.

"11. A decision of the two Arbitrators, or a decision by one of the Arbitrators and the Umpire, shall be deemed a decision of the Board, but no decision shall be rendered, except at a meeting of the said Board duly called for that purpose, or except with the knowledge of all members of said Board.

"12. When the said Board of Arbitration shall reach its decision it shall execute an award thereon in duplicate, and one copy of said award shall be delivered to the attorneys for each party, and either party shall, upon five (5) days notice to the other, be entitled to move the above entitled Court for the entry of a judgment in said cause now pending in said court for the amount of such award, if any, as may be made, and judgment shall be entered in said cause in accordance with the statutes of the State of Florida in such cases made and provided, it being the intention of the parties hereto that this agreement shall be made a rule of court in accordance with the provisions of the statutes of the State of Florida. * * *

"IN WITNESS WHEREOF, the said party of the first part has hereunto set his hand and seal, and the party of the second part has caused these presents to be executed by its Chairman and Secretary and has caused its seal to be hereunto affixed, the day and year first above written.

"C. F. LYTLE (Seal),

"Party of the First Part.

"STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA,

"By C. B. TREADWAY, Its Chairman,

"Party of the Second Part.

"ATTEST: Its Secretary.

"(SEAL)."

The award was as follows:

Allowance on Item One ........................... $28,846.72 Allowance on Item Two ........................... 29,239.84 Item Three is disallowed. Allowance on Item Four........................... 3,480.00 Item Five is disallowed. Allowance on Item Six ........................... 3,300.00 ----------- Total allowed ..................... $64,866.56

From this total allowance is deducted the State Road Department's counter claim of ............ 11,179.19 ----------- Leaving a net allowance of .................... $53,687.37

"Interest on the amount awarded is allowed at the rate of six per cent. per annum from July 18, 1927, to date of entry of the judgment and from the latter date at the same rate to date of payment.

"In the matter of allowing interest on the award from July 18, 1927, to date of entry of the judgment, the arbitrator, Mr. P. L. Wilson, dissents and does not agree to. The views as expressed herein with reference to interest are those of the arbitrator, Mr. C. Moriarity, and the umpire, Glenn Terrell. All other matters discussed herein are the unanimous expression of both the arbitrators and the umpire."

A rule in Prohibition was issued by this Court, having reference to the power of the Board of Arbitration to award interest against the State Road Department, a State agency.

Motions were made by the umpire and by C. Moriarty, one of the arbitrators, and by the respondent, C. F. Lytle, to quash the Rule in Prohibition upon grounds:

"(a) That it appears from said Rule to Show Cause that the said Board of Arbitration had the power and it was its duty under Chapter 15022, Laws of Florida, 1931, to allow and award the interest which it has allowed in its opinion and decision and awarded by its award.

"(b) That it was the purpose of said Chapter 15022, Laws of Florida, 1931, to make the State Road Department amenable, except as to actions sounding in tort, for any claim arising under contract for work done to the same extent that the respondent, C. F. Lytle, is now amenable under like circumstances and thereby to place said respondent and the State Road Department on the same level as to actions at law or suits in equity within the scope of said Act.

"(c) That said Board of Arbitration in and by its opinion and decision and in and by its award has allowed a counter claim of the State Road Department against the respondent, C. F. Lytle, and in the allowance thereof has allowed interest upon such counter claim.

"(d) That it appears from said Rule to Show Cause that the provisions of the Agreement of Arbitration clothed said Board of Arbitration with discretion to allow interest, if in the judgment of said Board such allowance was necessary to compensate said respondent, C. F. Lytle, for the injury by him sustained, and said Board has made such determination.

"(e) That under the Agreement of Arbitration and the Statute Laws of the State of Florida, to-wit, Sections 2855-2863, Revised General Statutes of 1920 (Sections 4552-4560, Compiled General Laws, 1927) upon which the said Agreement of Arbitration is founded, the said Board of Arbitration had the power to allow the demand of said respondent, C. F. Lytle, for interest in the event that such Board in its discretion should determine that such allowance should be made as or for any part of the just compensation of said respondent, C. F. Lytle, for his claims, and such discretion has been affirmatively exercised by said Board.

"(f) That it appears from said Rule to Show Cause that the allowance of interest by said Board of Arbitration in and by its said opinion and decision and in and by its said award was proper."

By answer, the respondent, C. F. Lytle, avers:

"That said suit was instituted by this respondent to recover of and from said State Road Department upon the claims of this respondent arising under contract for work done after June 7th, 1923, to-wit, the construction of the said bridge and road referred to in said paragraph 1 of said Rule. That said work was completed and accepted prior to July 18th, 1927, and demand for the payment of the sums due the respondent were made by respondent on and prior to July 18th, 1927, and said State Road Department then and there and thenceforward refused to pay all or any part of said claims of this respondent and denied liability for all or any part of them. * * *

"That at all times since said July 18th, 1927, this respondent has diligently sought to obtain a hearing upon the merits of his said claims and from the very beginning has been ready and willing to submit them to any disinterested board or tribunal for their determination, and repeatedly since July 18th, 1927, has made known such willingness to said State Road Department. But throughout said period the said State Road Department has denied the validity of said claims and all obligations of said State Road Department to pay the same, or any part of them, and refused to submit the merits of them to any court or other tribunal until the time when the said Arbitration Agreement dated April 18th, 1933, was negotiated between the respondent and the said Department. * * *

"This respondent denies * * * that the said interest upon principal sum from July 18, 1927, or any part thereof, was allowed to this respondent by said Board of Arbitration of its own motion. And on the contrary avers the fact to be that the said interest was allowed to this respondent by said Board of Arbitration after a full hearing and opportunity to be heard and after briefs had been duly filed by this respondent asserting that interest ought to be allowed and awarded, and by said State Road Department asserting that no such interest, and no interest, ought to be allowed or awarded, and after such matter had been duly submitted to said Board of Arbitration by both parties for decision. * * *

"And this respondent denies all of the allegations of said Rule save those herein admitted to be true."

A separate answer was filed by P. L. Wilson, one of the arbitrators, in which he stated the grounds of his dissent as to the allowance of interest on the amount of the award.