Ezell-Titterton, Inc. v. A. K. F., EZELL-TITTERTO

• Decision Date: 22 April 1970
• Docket Number: No. 37820,EZELL-TITTERTO,INC,37820
• Citation: 234 So.2d 360
• Parties: and Phoenix of Hartford Insurance Company, Petitioners, Cross-Respondents, v. A.K.F., a minor, by and through P.A.F., parent and natural Guardian of A.K.F., and the Florida Industrial Commission, Respondents, Cross-Petitioners.
• Court: Florida Supreme Court

Page 360

234 So.2d 360

EZELL-TITTERTON, INC. and Phoenix of Hartford Insurance Company, Petitioners, Cross-Respondents, v. A.K.F., a minor, by and through P.A.F., parent and natural Guardian of A.K.F., and the Florida Industrial Commission, Respondents, Cross-Petitioners.

No. 37820.

Supreme Court of Florida.

April 22, 1970.

Rehearing Denied May 20, 1970.

Gerald T. Nolan, Fort Lauderdale, for petitioners, cross-respondents.

Preddy, Haddad, Kutner & Hardy, Miami, for respondents, cross-petitioners.

Patrick H. Mears and J. Franklin Garner, Tallahassee, for Florida Industrial Commission, respondents.

ON REHEARING

ERVIN, Chief Justice.

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 legitimize 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 Industrial Commission comply with the essential requirements of the law. ¹ This Court has no power to make an additional independent finding of fact where the trier of fact has concluded that the evidence supports no such conclusion. ² The record abundantly supports the conclusion of the Judge of Industrial Claims that there was no common law marriage. ^2a

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. ³ Although the Notice to Controvert did not appear on the form specified by Section 440.20(4), substantial compliance with the prescribed form is sufficient. ⁴

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 Angell, 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. Angell 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 exceptin 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. I 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 acknowledgement 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 above findings were made upon evidence in the record, relevant portions of which may be summarized as follows.

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...