Bailey's Auto Service v. Mitchell
| Decision Date | 03 February 1956 |
| Citation | 85 So.2d 228 |
| Parties | BAILEY'S AUTO SERVICE, Employer, and Glens Falls Indemnity Co., Carrier, Petitioners, v. Richard MITCHELL, Deceased, and The Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Paul H. Roney and Mann, Harrison, Stone, Roney & Mann, St. Petersburg, for petitioners.
James T. Earle, Lovelace, Earle & Deal, St. Petersburg, and Burnis T. Coleman, and Rodney Durrance, Tallahassee, for respondents.
This matter comes before the Court on a petition for writ of certiorari to review an order of the Florida Industrial Commission affirming an order of the Deputy Commissioner directing payment of workment's compensation benefits to the three minor children of Richard Mitchell, deceased.
Mitchell and one Appling were employees of petitioner Bailey. Mitchell was killed in an altercation with Appling on the premises of the employer on June 2, 1952. He was survived by a widow and three minor children. The widow remarried on February 3, 1954. On July 6, 1954, more than two years after the death of the decedent, the remarried widow filed a petition for award of workmen's compensation benefits to the minor children, waiving any claim for benefits to herself.
The claim was contested before the Deputy Commissioner and again before the full Commission on the ground that the Statute of Limitations, Section 440.19, Florida Statutes, F.S.A., had run inasmuch as the claim was filed more than two years after the death and on the further ground that the death of the employee did not result 'from an injury arising out of and in the course of employment.' See Section 440.09, Florida Statutes, F.S.A. The Deputy and the full Commission found that the Statute of Limitations had not run against the claim of the minors and further that the death resulted from an injury 'arising out of and in the course of employment', and, therefore, the claim of the children was compensable. These rulings are assigned as errors.
We hold that the claim of the minors was not barred by the Statute of Limitations. Section 440.16, Florida Statutes, F.S.A., provides the amount of compensation to be paid upon the death of an employee. Under this statute if the decedent is survived by a widow, but no children, the widow receives 35% of the average weekly wage. Under Section 440.16(2)(c), Florida Statutes, if there is a widow and minor children, she is allowed an additional 15% on account of each child, but in the event of her remarriage, then 25% for each child. It is clear from the language used that the Legislature intended that payment to the widow be grounded entirely upon the existence of the marriage relationship and the continuance of her status as a widow. Upon her remarriage, it is also clear that the Legislature intended that compensation to her cease but that the amount to be paid each child should be increased.
Under Section 440.19(1), Florida Statutes, F.S.A., the right to compensation is barred unless a claim is filed within two years after death. Paragraph 3 of this section, however, reads as follows:
'(3) If a person who is...
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