16 So. 2d 297 | Fla. | 1944
Lead Opinion
In our discussion we will allude to Agnes Todd Ackis and Ola Tate Ackis, but we are concerned only with the claim of the former, who was the second wife of G.C. Ackis, now deceased.
Five questions are presented by appellants; one by appellee.
The order was originally entered by the deputy commissioner of Florida Industrial Commission finding that Agnes Todd Ackis was the true wife of G.C. Ackis; that Ola Tate Ackis was not, as she had been properly divorced; that the claim to compensation by the former should be granted; that the claim of the latter should be denied; and that Florida Industrial Commission had jurisdiction to determine the cause. In other words, aside from the merits of the claim for compensation the deputy commissioner decided, factually, that the deceased was not employed exclusively in the State of Georgia, but served also in Florida. As a matter of law he found that Agnes Todd Ackis was the lawful wife of the deceased. Even assuming that the validity of the divorce *878
obtained by the deceased from Ola Tate Ackis could be determined in a proceeding of this kind, there is no need to pursue the matter in view of the ruling of this court in Roberts et al. v. Roberts,
Florida Industrial Commission reviewed the case and affirmed the deputy's order. The cause then reached the circuit court, where the rule announced in Roberts, et al., v. Roberts,supra, was applied as was the "extraterritorial provision of the . . . Compensation Act" anent the regular service in Georgia and occasional service in Florida.
As indicated by the opinion of the circuit judge two other propositions of law were introduced in the argument of the appeal before him. He determined that failure of Agnes Todd Ackis to elect within thirty days to take compensation did not defeat her right to it and that her claim was not lost when she sued third parties in an action at law and later settled and dismissed under circumstances we will presently discuss. He decided that there should be a credit, however, "upon the compensation benefits," of $472.99, the net amount she received as a compromise of her right of action.
In the hope that the facts will thereby become less complicated we will hereafter call the appellants, employer, Agnes Todd Ackis (the first wife), claimant, and G.C. Ackis, the deceased.
In addition to the (1) question of jurisdiction the employer insists (2) that claimant was entitled to no compensation because of the conduct on her behalf of the civil suit and (3) that if allowed compensation there should have been a credit of $1,900.00, the sum of the amounts paid in settlement of that suit and the one brought by Ola Tate Ackis, the first wife. If (4) not entitled to a credit of $1,900.00 it maintains that at any rate it should be given a credit of the gross amount she received, not the net amount as determined by the circuit judge. Claimant argues that the circuit judge should not have allowed a deduction even in the net amount, thereby correspondingly reducing the award of the Commission. *879
The employment had its inception when the employer, a Florida corporation, telegraphed the deceased, then residing in Alabama, that it needed the services of a good industrial man "for Alemite" and invited him to Jacksonville for a conference. He acceepted the invitation and was ultimately employed primarily to work in Georgia because it was there that the employer wished to introduce and further the sale of its product for use in textile mills. Deceased removed his residence to that state and was living there when he died. During the employment he did, however, make several trips to places in the State of Florida in the interest of his employer, and each of these visits was of three or four weeks duration. Although his principal work was done in Georgia, it is a* fair construction of the evidence that he did upon occasion serve his employer in the same capacity in this state. His death resulted from injuries received in Georgia when his car collided with one driven by John E. King and owned by Chase Brass Copper Company. At the time of the mishap he was en route to Jacksonville for a conference with his employer. This happened 10 December 1938. On 21 August 1939 the wife filed her claim with Florida Industrial Commission, and on 13 November 1939 Ola Tate Ackis also presented a claim. These were heard by the deputy commissioner with the result we have already given.
We think the first stated question, relative to the jurisdiction of Florida Industrial Commission over the claim, was properly answered by the circuit court. The controlling part of Workmen's Compensation Law is found in Sec. 9 (Sec.
We think the evidence was properly construed as showing that there was no express understanding to work only in Georgia. True, the duty of the deceased was to represent the employer principally in that state, where most of its customers operated, but his activities were not, in contemplation of the contract, to be confined there. The claims were legally presentable here.
We pass then to the effect upon claimant's demand of an effort to recover against the owner and driver of the other car in the collision which caused her husband's death. It seems necessary now to give the dates on which the suits were instituted and dismissed and the claims were filed. The wife presented her claim to Florida Industrial Commission 21 August 1939, filed her suit 26 November 1940, and settled and dismissed it 18 April 1941. She received $950.00, or approximately $472.99 after costs and expenses had been deducted. This is the sum referred to by the chancellor in his decree. Incidentally, Ola Tate Ackis received a like gross sum in settlement of her suit against the same defendants wherein she also sought recovery as the widow of the deceased.
Gist of the question now under consideration is failure of claimant to comply with Sec. 39 of Workmen's Compensation Law F.S.A. Sec.
The time for filing claims is prescribed in Secs.
On many occasions this court has announced the purpose intended to be accomplished by the enactment of the Workmen's Compensation Law. In Duff Hotel Co. et al. v. Ficara et al.,
Nothing having been shown to the contrary, we may assume that no such notice was given and that the benefits of the act were acceptable to G.C. Ackis. Therefore, if his death resulted from an accident arising out of and in the course of his employment his widow was entitled to compensation, irrespective of negligence on the part of a third person.
Difficulty is experienced in deciding this case because of the course followed by the claimant in her attempt to recover for the death of her husband, occurring while employed, as contemplated by the act, but chargeable to the negligence of an outsider.
If the mishap is occasioned by negligence of a third person not only is a new element introduced, but a different procedure is followed. In such cases the provisions of Sec. 39,supra, apply. It is provided that if compensation is collectible — we have concluded that in the instant case it was — and the person entitled to it determines that someone other than the employer is liable he may elect within thirty days of the accident, in the manner prescribed by the Commission, to take compensation or recover damages against the other person.
We pause now to discuss the word "determines" which we have italicized. It is apparently the prerogative of the claimant to decide in the first instance, compensation being otherwise awardable, whether the loss is chargeable to the misdeed of the third party. If no such conclusion is reached, then the claim is allowed on the theory that, damage having arisen from service performed by the industry, by the industry it should be borne. If, on the other hand, a contrary determination is reached by the claimant, the election to sue or claim compensation is required to be made within thirty days of the injury. So the initiative is exercised by the one who is to receive the benefit.
When compensation is preferred the election operates to *883
assign the cause of action to the employer, who in turn may sue, — or compromise if the settlement is approved by a circuit judge. In either event money received by the employer may be disbursed by paying in their order: the expenses incurred by him in the suit, expenditures for medical services and the like (under Sec.
This is the construction, too, placed on the clause by the Commission, for in the form prescribed by it, as required under Sec. 39, supra, for signature by claimants desiring *884 to sue in their own behalf, there is the commitment that the "employer and/or his insurance carrier [will be relieved] from all liability in this case" and that the signer will "pay all medical and hospital expenses from any amount recovered from third party and . . . refund to the employer and insurance carrier any amounts already expended by them for medical expenses or compensation payments."
Now we pose the question: If, as held in Sweat, et al., v. Allen, supra, the common law right of action is preserved to the employee so that he may recover more than allowable under the act; if, as said in Hartquist v. Tamiami Trail Tours,supra, election is meant as well to protect the employer as not to hamper the claimant; and if the latter has the initiative, how can the action of the wife in this case be sanctioned?
She made no choice, as contemplated by the statute, thereby giving the employer the opportunity, if she preferred compensation, to attempt collection from the wrongdoer. She did not notify it that she wished to embark on a suit at law to recover damages thereby probably releasing the employer and the carrier from any liability. She attempted, instead, to file for compensation, meanwhile keeping the employer uninformed of any determination by her that an outsider was liable, and then she sued at law. The right to make the determination reposed in her, but the responsibility to announce it when made was likewise hers. Her common law privilege to sue was unaffected, and if she decided to avail herself of it she should not also have sought compensation under the act. Had she resolved that there was liability on the part of another for her loss she should have so notified the employer in order that it might have enforced the claim by suit, making itself whole or partly whole from the amount recovered. She gave no notice of election yet brought her suit and claimed compensation, thus depriving employer and carrier of the opportunity of placing the burden on the one who should have sustained it. It seems to us that the wife should have been left in the position where she placed herself, party plaintiff in the suit in Georgia, there to receive whatever sum she recovered by verdict or settlement, as recompense for the loss of her husband. *885
It should be stated that the deputy, the Commission, and the circuit judge could have found authority in Sweat, et al., v. Allen, supra, for allowing and confirming the award, but for the reasons we have given we think that any statements there inconsistent with what we have written here must, when applied to the facts reflected in this record, be overruled.
Having this view it seems unnecessary to extend this opinion by dwelling upon the other questions presented by appellants and the one posed by appellee.
Reversed.
TERRELL, BROWN, ADAMS and SEBRING, JJ., concur.
BUFORD, C. J., and CHAPMAN, J., dissent.
Dissenting Opinion
The basis for a reversal of a decree or judgment of the lower court is largely upon the theory that the insurance carrier is prejudiced by the settlement of the dependents of the employee.
The record here discloses that the insurance carrier, at all times, denied liability for the death of the employee on a number of grounds appearing in the record. It so contended in its answer filed with the Industrial Commission and so contends by the third question discussed in the brief here. (See Appellant's Brief, pages 32-33.)
The doctrine of subrogation is applied when, and when only,
the insurance carrier has paid the compensation for which it is liable. In the case at bar it has contended in every step of the case that it was not liable as a carrier and has never paid any money and its rights cannot be prejudiced until its liability is established. See Boley v. Daniels,
Schneider's Workmen's Compensation Law, Vol. 1, page 322, when considering an Alabama Compensation Statute, held in accord with our holding in Sweat v. Allen, supra. See Georgia Casualty Co. v. Haywood,
In Workmen's Compensation cases subrogation rights do not come into existence unless the carrier has paid to the employee compensation, and this rule has been sustained in Sweat v. Allen, supra. The same rule is applied in Alabama, California, Connecticut, and practically all the States of the Union. See Schneider on Workmen's Compensation Law, Vol. 1, pp. 332-386. These several Statutes and holdings are in accord with Sweat v. Allen, supra.
We are not called upon, under the full faith and credit clause of the Federal Constitution, to recognize the judgment or proceedings in the State of Georgia where the widow-claimant brought suit against the third party. The proceeding in the Georgia Court by the claimant against the third person tort-feasor and the settlement thereof were not binding on the insurance carrier here. See Wisconsin Mutual Liability Co. v. Industrial Commission,
The Supreme Court of Wisconsin, in construing the compensation statute similar to ours, held in line with Sweat v. Allen to the effect that a settlement by claimant with a third party tort-feasor was not binding on the insurance carrier. The carrier could maintain its action after payment of the award, or could repudiate the settlement and re-litigate it, *887 or could ratify the settlement as made between the claimant and the third party tort-feasor.
The filing of the claim by the widow with the Florida Industrial Commission in August, 1939, prior to the running of the two year statute of limitations in the State of Georgia, under Section 39 of the Compensation Act, had the legal effect of placing the insurance carrier on notice of potential liability under the terms of its policy. The law required the insurance carrier, prior to the running of the statute of limitations, immediately to take steps for the protection of its rights under the terms of its policy, but the record discloses that the insurance carrier declined so to do and contended on numerous grounds that no liability existed. See Wisconsin Mutual Liability Co. v. Industrial Commission,supra.
The denial of compensation to the widow, coupled with a departure from Sweat v. Allen, is, to say the least, a harsh ruling. The employer was immediately advised of the death of its employee; the carrier was bound to have received this information; the claimant filed with the Florida Industrial Commission her claim prior to the running of the two year statute of limitations under the Georgia Code; a denial of all liability to the employee has been asserted from the day of the accident and in question three of its brief asserts that defense in this Court.
BUFORD, C. J., concurs.