Hillyer & Lovan v. Florida Indus. Com'n
| Decision Date | 07 November 1944 |
| Citation | 155 Fla. 144,19 So.2d 838 |
| Court | Florida Supreme Court |
| Parties | HILLYER & LOVAN et al. v. FLORIDA INDUSTRIAL COMMISSION et al. |
Rehearing Denied Dec. 20, 1944.
Appeal from Circuit Court, Duval County; DeWitt T. Gray judge.
Adair Kent, Ashby & McNatt and Clarence G. Ashby, all of Jacksonville, for appellants.
Martin Sack and Louis S. Joel, both of Jacksonville, for appellees.
Robert Chistopher lost his life under circumstances whereby a claim for compensation was appropriate under our Workmen's Compensation Act, F.S.A. § 440.01 et seq. A claim was made by Lena Christopher, who will be referred to as wife number one. A claim was also made by her chile by Robert Christopher. A claim was filed by Alma Christopher, who will be referred to as wife number two.
Deceased was duly married to wife number one in 1923. There were frequent separations until September, 1941, when they separated the last time and thereafter they did not live together.
Wife number two was married to Christopher in January, 1942, and lived with him until his death in December, 1942.
The deputy commissioner took considerable testimony and concluded that wife number one was not dependent on Christopher for support; that she was not living apart from him through his fault and denied her claim. He also found that wife number two could not sustain her claim because Christopher had never been divorced from wife number one. He allowed compensation to the minor child.
The Commission reversed that part of the order denying the claim of wife number two and allowed her compensation and an attorney's fee.
On further review by the Circuit Court, Judge DeWitt T. Gray, he affirmed the Commission's order and allowed an additional counsel fee of $300 to be paid by the employer and carrier.
The employer and carrier have appealed. The first question for us to decide is whether appellants can prosecute this appeal and thereby further litigate the question of who is the widow inasmuch as neither wife is now questioning the decision rendered by the Circuit Court.
It is earnestly claimed that the question of marriage vel non is purely an incidental question and not subject to question by the carrier in this fashion as it would be a collateral attack. The case of Lovejoy Co. et al. v. Ackis, 153 Fla 876, 16 So.2d 297, and cases in other jurisdictions are relied on, however we are of the view that these cases are inapplicable to this case. Appellants are parties to this litigation and as such have the right to question any order which may adversely affect them. Their contention is that wife number two is not entitled to claim compensation from them and surely they have every right to have this court review that part of the order.
Passing then to the question which goes to the merits of the...
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