234 So. 2d 360 | Fla. | 1970
Lead Opinion
ON REHEARING
This is a case arising under Florida’s Workmen’s Compensation Act, Chapter 440, Florida Statutes 1967, F.S.A. The employer and carrier have petitioned, and the claimant has cross-petitioned, for a writ of certiorari to review a Compensation Order of the Florida Industrial Commission affirming the Compensation Order of the Judge of Industrial Claims. The Judge awarded death benefits to claimant, the alleged posthumous illegitimate daughter of the deceased employee. Hereinafter Petitioner will be referred to as the “employer,” cross petitioners (the minor claimant by and through her natural mother as guardian) as the “child” or “claimant,” and the deceased employee as “decedent.”
The employer argues that there was insufficient competent evidence to find that the decedent acknowledged paternity of the child where the decedent’s death occurred within 83 hours following the probable date and time of the child’s conception. The employer further asserts that error was committed in the receipt and consideration of hearsay evidence for determining whether the decedent acknowledged paternity of the child before his fatal accident.
The claimant in her cross-petition argues that there was competent substantial evidence to support finding a common law marriage between the decedent and her mother, and that such a finding, which would legitimke claimant, should have been made. As a second issue, claimant contends that the Full Commission erred by overturning a penalty awarded under Section 440.20, Florida Statutes 1967, F.S.A.
As to the first point in the cross-petition, it is sufficient to note that this Court’s review is limited to determining whether findings of the Judge of Industrial Claims are supported by competent substantial evidence and whether the orders of the Judge of Industrial Claims and Florida
The Judge of Industrial Claims made the following finding relative to the penalty award:
“I find from the evidence that the employer knew of the happening of the subject accident and knew of the demise of its employee, that the employer knew of the birth of the employee’s child and that no payments were made in accordance with F.S.A. 440.20(2). I find that no notice to controvert was filed after knowledge of the death or the birth of the child — no such notice being filed until 11/4/66, after the filing of the claim on 10/24/66 and not on the form (FIC 12) specified by F.S.A. 440.20(4) and Rule 6. Hence, the employer or its carrier is to pay the claimant in accordance with F.S.A. 440.20(5) an amount equal to 10% of past due unpaid installments from 5/11/64 to the date of this order.”
The Full Commission reversed the above portion of the Judge’s Order, with the following statement:
“We are of the opinion that penalties and interest should not have been assessed against the employer and carrier. In our opinion, the judge erred when he failed to excuse the employer and carrier for late payments pursuant to Section 440.-20(5), Florida Statutes, owing to conditions over which the employer and carrier had no control. Penalties should only be applied against procrastinating employers and carriers and it is apparent that such is not the case here. The carrier promptly paid all benefits which it conscientiously thought were due and it had no way of ascertaining whether the deceased employee had ever acknowledged the posthumous child. Accordingly, this portion of the judge’s Order must be reversed. The payment of interest is always due on all unpaid compensation. The judge is correct in ordering payment thereof as it is not within his discretion to excuse assessment of interest.”
Although the fatal accident occurred on August 21, 1963, no claim was filed until October 24, 1966. Notice to Controvert this claim was mailed to all interested parties on November 4, 1966, 11 days after the claim had been filed. The record fails to affirmatively show that the employer was notified of the mother’s assertion that decedent had fathered the child until claim was filed October 24, 1966, when the child and her mother contended they were entitled to share in death benefits. The employer’s Notice to Controvert was filed not within 21 days after knowledge of the decedent’s death, but within 21 days after notification of the claim. At the time the deceased employee was killed, the employer had no reason to be on notice of any claim by the child or her mother, inasmuch as the decedent was still a bachelor, legally and in the eyes of all, with the possible exception of a few close friends who were erroneously led to believe otherwise.
Under these circumstances, there was no error in the Full Commission’s reversal of that portion of the Judge’s Order requiring payment of a ten per cent penalty under Section 440.20(5), Florida Statutes 1967, F.S.A.
We now direct our attention to the issues raised by the employer. The following findings appear in the Compensation Order of the Judge of Industrial Claims:
“On 8/21/63, Fugate [the employee] was killed by accident arising out of and in the scope and course of his employment with Ezell Titterton, Inc., when a truck which he was operating overturned.
“On 8/17/63, or prior thereto, Fugate’s child Kim, [Claimant] had been conceived and was born on 5/11/64. (e) Prior to his death Fugate acknowledged the child and her parentage as his own. (f) The claimant is the posthumous child of the employee and within the meanings of F.S.A. 440.02(13) a dependent child of the deceased.
“The testimony offered by defense witness Menendez tended in a significant measure to bolster that of the claimant’s mother and other witnesses for the claimant. Scientifically, the testimony of Ann Fouch Angelí, M.D., is accepted as being wholly reasonable, logical and in accord with the requisites of the scientific method. Medical opinions expressed contrary to those of Dr. Angelí are rejected. She was the treating physician, speaks from a most impressive medical background both academically and as a practitioner for many years, and was candid, making no effort to advocate. Where necessary, the pedigree exception to the hearsay rule has been recognized. And, I find, factually, that all of the requisites for the application of the exception are present. It should be noted that the evidence as a whole has been considered and neither the pedigree exception, nor the evidence tangential to it is considered to be a sine qua non of the overall finding. / find that both mother and father had an understanding that a child had been conceived. They had a firm mental grasp of that fact, perceived it, and were well informed. The father had a means of perceiving the fact of conception and paternity. The acknowledgement was verbal and by act, actions and deed. The testimony of the mother and independent witness Wilcox, as well as other evidence is accepted on this issue. I find that by calendar computation and the experiencing of a painful ovulation on 8/17/63 the mother had, valid reason to believe that coitus with the father had been fruitful. This knowledge was further supported in the next few days by physical symptoms. The father had good reason to believe the same, which was a fact in being as the course of pregnancy and the delivery on the precise due date later proved. The father demonstrated his ac-knowledgement by his happiness and typically youthful concern for the mother such as not allowing her to lift or be in drafts. His acknowledgement was expressed to his closest friend, an insurance man named Wilcox, who so testified. It is contrary to human experience for a man to continue his relationship with a woman expressing his pleasure if he entertains doubt that he is the father of the child she is bearing.” (Emphasis Supplied.)
The decedent, a 20-year old college student, and the child’s mother had known each other since high school and had begun dating in December of 1962. After April, 1963, the decedent and the mother considered themselves husband and wife, married “in God’s eyes.” The mother received an engagement ring on June 21, 1963, and marriage was planned for November, 1963. The child’s mother lived with her mother approximately two miles from the decedent’s apartment. There was evidence that although the two never lived together, they spent almost all non-working hours together performing such routine tasks as washing clothes, buying groceries, cooking and eating.
The mother testified that after April of 1963, she and the decedent engaged in sexual relations on an average of once or twice each week until the deceased employee’s death, and that she had had no intercourse with another man during that period. She and the deceased employee engaged in sexual relations on Wednesday, August 14, 1963, and again on Saturday evening, August 17, 1963, the latter date being the time which she fixes as the date of the child’s conception. According to the mother, approximately ten minutes after intercourse she experienced a rather sharp pain in the lower left abdominal area which she characterized as a pain of “ovulation.” She purportedly indicated her possible pregnancy to decedent later the same night, but she was unable to directly quote any statement that the decedent may have made at that time or at any time prior to his death in reaction to her possible pregnancy.
On the next day, Sunday, August 18, 1963, the decedent spent a portion of the day at the beach with his best friend. According to the friend (Wilcox), th,e decedent (Hal Fugate) discussed the possible pregnancy of his financee, stating that “he thought she [his fiancee, claimant’s mother] was pregnant” and, “He hoped she was.” The friend testified that decedent grinned and appeared to be pleased while relating the news that his fiancee was expecting a child.
The mother also testified that she experienced swelling and sore breasts on August 19, 1963, two days after relations with decedent. She stated that she told decedent she was fairly certain she was pregnant, that the decedent was excited and quite happy about the news, and that he gave her special treatment such as forbidding her to lift heavy objects or cook meals. A name for the expected child was purportedly discussed.
The mother admitted under oath that she had advised a girl friend that she was not aware of her pregnancy until after decedent’s death. The record contains no evidence that the decedent ever mentioned his fiancee’s possible pregnancy to his roommate before meeting his untimely death.
Decedent was killed at approximately 8 :- 30 a. m., August 21, 1963, a Wednesday morning. Decedent’s best friend (Wilcox) testified that during a conversation with the mother on the afternoon of the day decedent was killed, the mother told him that she was almost certain that she was pregnant and that she had missed a period and was distressed about what to do with the child.
The mother first saw a physician on September 3, 1963. After examination, the doctor concluded that there was a questionable pregnancy or that the patient was suffering from oligomenorrhea. A pregnancy test was negative at this first examination performed by the treating physician, a specialist in obstetrics and gynecology who ultimately delivered the child. The physician testified that it is normal for the breasts to become very tender and sore “in the early weeks and again in the late weeks.”
At the next examination on September 16, 1963, evident clinical signs of pregnancy
This same treating physician testified in claimant’s behalf that on the basis of all of the facts revealed to her (including knowledge on the mother’s part of her fertility period), the mother could have known that she was pregnant prior to August 21, 1963, the date of the deceased employee’s death.
The physician testifying in behalf of the employer, also specializing in obstetrics and gynecology, indicated that normal subjective symptoms of pregnancy are experienced approximately four weeks after conception or six weeks after the last menstrual period. He indicated that there may be tenderness, swelling and soreness of the breasts, even though there is no conception and no pregnancy, due to excretion of the hormones estrogen and progesterone. Although his doctor testified that women say they can “feel when they ovulate,” he stated that based on any subjective body symptoms it would be impossible for a women to conclude with any certainty that she was pregnant within four days after conception. This physician’s most definite statement on the subject was as follows: “As for her to be able, on day four of the possible pregnancy to convey to anyone, medically it is impossible. I can say that categorically. There is no test whatsoever.” Again, during cross-examination, the physician made the following statement: “And I will say here, categorically, that any individual who is pregnant within 4 days, it is impossible for that individual to say that she is pregnant * * * say it with knowledge.” “In my experience, women who come in and say they think they are pregnant have always missed one period. Even then they are not sure. Never have I had anyone come in 4 days after possible or probable conception, and say, T think I’m pregnant; I want to be examined.’ ”
The Judge recites in his Order that “the evidence as a whole has been considered and neither the pedigree exception, nor the evidence tangential to it is considered to be a sine qua non of the overall finding.” The Judge was not in error in overruling the employer’s objections to introduction of certain hearsay evidence in claimant’s behalf for whatever probative value it might have had on the issue of decedent’s acknowledgment of the child. Rules of procedure less technical than those followed by the courts are applied to hearings under our Workmen’s Compensation Act.
The final issue for our determination is whether the Judge’s finding that the decedent acknowledged paternity of the child prior to his death is based upon competent substantial evidence in the record.
It is now settled in this jurisdiction as well as in other states with similarly worded statutes to F.S. Section 440.02(13), F.S.A., that an illegitimate posthumous child whose paternity is acknowledged before the employee’s death is entitled to claim death benefits under the Workmen’s Compensation Act. C. F. Wheeler Co. v. Pullins, 152 Fla. 96, 11 So.2d 303 (1943); Annot., 18 A.L.R. 900, 907 (1968). What constitutes competent substantial evidence of acknowledgment must necessarily be determined from the circumstances of each individual case.
Acknowledgment may be in a form other than an employee’s expressed statement that he is the father of the child. In C. F. Wheeler Co. v. Pullins, supra,
In Patterson v. Liberty Mutual Ins. Co., 110 Ga.App. 23, 137 S.E.2d 549 (1964), the evidence authorized finding that the decedent and child’s mother had lived together continuously from May 1960 until the employee’s death on August 30, 1960. The child was conceived about July 1, 1960, and the mother was approximately two months pregnant at the employee’s death. Her pregnancy was confirmed medically on September 8, 1960. The mother, prior to the employee’s death, “knew in her own mind” that she was pregnant and had so informed the decedent, who was “hopeful” that she was pregnant. The mother had also informed the maternal grandmother of the probable pregnancy. The Georgia appellate court reversed and remanded to the trier of fact because evidence as to the above facts had been excluded in resolving the issue of acknowledgment. The trier had concluded as a matter of law that the deceased employee could not have acknowledged the posthumous child since he did not know as a positive fact that the mother was pregnant at the time of his death on August 30, 1960. The court concluded as follows :
“ * * * it is immaterial whether or not the putative father knew as a matter of positive fact that the mother was pregnant, it being sufficient that the putative father believed such to be the case when in fact it was; and that, acting on such belief, he acknowledged his parentage of the child. * * * The controlling factor is the actual fact of pregnancy and the putative father’s intent with respect to the unborn child; and this being true, an acknowledgment of parentage may be made by one who is acting in the belief that the mother is pregnant with his child irrespective of the fact that her pregnancy has not been medically or otherwise determined as a positive fact." (Emphasis added.)
I would adopt as applicable to the situation before us the above-quoted statement of the Georgia appellate court. The issue of acknowledgment is one to be resolved by the trier of fact. A finding in the instant case was permissible, although certainly not demanded, that the claimant had been acknowledged by the deceased employee. The evidence accepted by the Judge of Industrial Claims must surely border the limits of what we could consider competent substantial evidence. Nevertheless, the Judge has adequately explained whose testimony he has accepted and relied upon. This evidence and testimony is not of such speculative character to preclude a finding that the deceased acknowledged paternity of the child.
Our attention has been directed to the case of Gulf Power Company v. Passmore (Fla.1961), 129 So.2d 132, in which this Court on rehearing ultimately denied cer-tiorari review of the full Commission’s reversal of the Deputy Commissioner. In Passmore, the Deputy Commissioner made, inter alia, the following findings:
“I further find, however, that Miss Cotton had been pregnant with said child for such a short period of time prior to the death of Mr. Passmore (no more than two weeks), that it is highly improbable she could have known that she was pregnant prior to his death with the result that she could not have conveyed information of pregnancy to him prior to his death. * * * I find that the testimony as to the acknowledgment of paternity to be speculative and unlikely.*367 I am further of the opinion that until it can be certain and not merely a matter of suspicion that a woman carries an unborn child, the paternity of that child cannot be acknowledged.”
The full Commission found that the Deputy Commissioner “erred as a matter of law in determining the question as to acknowledgment.” The Commission considered findings and conclusions similar to those in the instant case and similar to those presented the Court in Patterson v. Liberty Mutual Ins. Co., discussed above. The findings of the Judge of Industrial Claims herein is consistent with the principles and conclusions of those cases.
The testimony of the employer’s physician unquestionably raised doubts as to the ability of the mother to recognize her pregnancy within four days after intercourse with the employee. But the Judge of Industrial Claims considered such testimony in connection with other testimony to the contrary from the physician attending the mother of claimant at the time of the latter’s birth. There was testimony from the employee’s close friend, Wilcox, that employee told him just prior to his (employee’s) accidental death, that “he thought she [claimant’s mother] was pregnant,” and indicated to his friend his exuberance over the prospect of having a child by claimant’s mother.
It is for the trier of facts to resolve such doubts and evidentiary conflicts. It is not for us, substitutionally, to make contrary findings drawing on our lay notions that knowledge by claimant’s mother of her pregnancy at the time she claimed was scientifically impossible. Nor should we conclude in the face of the record and the Judge’s finding the employee did not acknowledge to another prior to his death his belief claimant’s mother was pregnant by him.
This case emphasizes the great reliance necessarily placed upon the Judge of Industrial Claims to correctly evaluate and determine the credibility of the testimony before him.
The full Commission has accepted this fundamental principle and refused to substitute its independent judgment for that of the Judge of Industrial Claims.
Accordingly, the Compensation Order of the Full Commission is affirmed.
. Garcia v. Continental Vending Machine Corp., 176 So.2d 329 (Fla.1965) and cases cited therein.
. Id.
. At the time of decedent’s death, the Legislature had not yet abolished common law marriage. See Fla.Stat. § 741.211 (1967), F.S.A.
. “If any installment of compensation payable without an award is not paid within fourteen days after it becomes due, as provided in subsection (2) of this section,
. Rule 14, Rules of Procedure in Workmen’s Compensation Cases before the Florida Industrial Commission.
. Fla.Stat. § 440.29 (1967), F.S.A.; Jarvis v. Miami Retreat Foundation, 128 So.2d 393 (Fla.1961).
. See, i. e., Morgan v. Susino Const. Co., 130 N.J.L. 418, 33 A.2d 607 (1943).
Dissenting Opinion
(dissenting).
I have carefully considered the evidence and testimony before the Judge of Industrial Claims, and have reviewed and considered every reported decision in which the sufficiency of the evidence to support a finding of acknowledgment under similar circumstances was in issue. It is my considered opinion that the evidence appearing in the record in this case does not constitute competent substantial evidence producing a result which accords with logic and reason.
On the issue of whether the child’s mother could have known with any certainty of her pregnancy within four days of fetal conception, the testimony of the treating physician and that of employer’s expert witness was in direct conflict. I do not presume to choose the testimony of one physician over the other. That is not within this Court’s prerogative and is a function for the Judge of Industrial Claims. I note, however, that testimony of the employer’s physician raises substantial doubt about any mother’s ability to recognize her pregnancy within four days of conception.
The testimony of the mother and decedent’s best friend dealt more with the actions and reactions of the father and his statements of whether the mother was pregnant than with any affirmative statements or actions from which could be implied an acknowledgment that he was the father of any child which the mother was bearing. Describing the decedent’s conversation, his best friend testified that “he [decedent] didn’t know whether she was or not [pregnant]. He said there was a chance she might be.” The mother testified that she could not recall any specific statements wherein decedent expressly acknowledged his paternity of the child. Her recollection was only of the “special treatment” given her because she “might be pregnant.”
In other recorded decisions in which courts have held that acknowledgment was sufficiently proved, the court has usually relied on testimony of persons to whom the deceased employee had expressly acknowledged paternity of the child, or on other circumstances from which a presumption of his acknowledgment of paternity would naturally flow.
In C. F. Wheeler Co. v. Pullins,
In Patterson v. Liberty Mutual Ins. Co.,
American Mutual Liability Ins. Co. v. Hogan
In the Hogan case, the mother and decedent had attempted to be ceremonially married before they began living together and holding themselves out as husband and wife. Their relationship and conduct after conception of the claimant child, along with other evidence, authorized the trier of fact to find that the decedent believed that the child the mother was carrying was begotten by him and that he acknowledged paternity of the child.
In Green v. Burch,
The only testimony produced in Hooley v. Hooley
“The only direct evidence of acknowledgment by decedent was brought out on cross-examination. One of appellant’s witnesses, on direct examination, testified that Rosie, in the presence of decedent, said she was going to have a baby. However, on re-cross-examination this witness stated, ‘I said Rosie is going to have a baby, he [decedent] said yes.’ Rosie’s grandmother testified, on direct examination, that she talked with Rosie and decedent the Tuesday before he was killed and decedent said Rosie was going to have a baby and that he wanted ‘to make sure she has money to take care of them.’ On cross-examination this witness admitted that actually what was said, and all that was said, was that Rosie was going to have a baby by decedent. Rosie’s sister testified that she and decedent discussed the fact that Rosie and he were going to have a baby. On cross-examination this witness testified that Rosie told her she was going to have a baby and decedent agreed, and that he ‘wanted to support the baby well.’ ”8
In the Hooley case the Industrial Board denied benefits to the minor children of deceased. The Court upheld this denial, stating that “we cannot say that the evidence is such that reasonable minds could only conclude that * * * the decedent was the father of [the minor Claimant] * * * or that he acknowledged her.” The Court recited as applicable to workmen’s compensation cases a principle appearing in cases under Indiana inheritance statutes: Proof of acknowledgment must be “definite, certain and unequivocal.”
I would not establish a rule which places upon the minor claimant an inordinate burden of proof or which by its apparent rigidity might imply an erosion of the Judge’s function and prerogative. But in the proper exercise of this Court’s review function it should evaluate the evidence in light of certain minimal standards contemplated by the act. Without these minimal standards there will be no end to spurious and false claims in the type of case before us.
I am not unmindful of the liberality with which this Court has frequently interpreted the act. In Gulf Power Co. v. Pass-more,
In this admittedly difficult case, it is my considered opinion that the Judge of Industrial Claims and Full Commission have deviated as a matter of law from compliance with the requirement that each finding be supported by competent substantial evidence producing a result which accords with reason and logic.
I dissent.
ROBERTS and BOYD, JJ., concur.
. U. S. Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951).
. 152 Fla. 96, 11 So.2d 303 (1943).
. Id. at 97, 11 So.23 303, 304 (1943).
. 110 Ga.App. 23, 137 S.E.23 549 (1964).
. 91 Ga.App. 891, 87 S.E.23 661 (1955).
. 164 Kan. 348, 189 P.2<3 892 (1948).
. 226 N.E.2d 344 (Ind.App.1967).
. Id. at 348.
. 129 So.2d 132 (Fla.1961).
. 4 Fla.Comp.Rep. 210 (1960).