Foster v. Cooper

• Decision Date: 14 June 1940
• Citation: 143 Fla. 493,197 So. 117
• Parties: FOSTER v. COOPER.
• Court: Florida Supreme Court

197 So. 117

143 Fla. 493

FOSTER v. COOPER.

Florida Supreme Court, Division A.

June 14, 1940

Rehearing Denied July 12, 1940.

Proceeding under the Workmen's Compensation Act by Clarence Major Cooper, claimant, opposed by George Foster, employer.From an order of the circuit court affirming an award by the Industrial Commission, the employer appeals.

Order modified and, as modified, affirmed.Appeal from Circuit Court, Osceola County; M. B. Smith, judge.

COUNSEL

G. B Fishback, of Orlando, for appellant.

Tilden Hays & Walker and A. Edwin Shinholser, all of Orlando, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review order affirming award by the Florida Industrial Commission which order of affirmance is as follows:

'This cause came on to be heard on appeal of both the parties herein from an award of the Florida Industrial Commission, and counsel for both of said parties submitted briefs for the Court's consideration, and the Court carefully considered said briefs and the record of said cause and was duly advised in the premises.

'Under the provisions of the law authorizing such awards or compensation orders to be reversed or modified by the Circuit Court, the Court finds that the findings of the Florida Industrial Commission were in all ways correct other than as to the allowance of attorney's fees to counsel for the employee, Clarence Major Cooper, and said award should be modified so as to allow an attorney's fee of $100.The Court further finds that said award or compensation order was made and served in accordance with law.

'It is therefore considered, ordered and adjudged that an attorney's fee in the amount of $100 payable to Tilden Hays & Walker, Attorneys for the claimant, Clarence Major Cooper, is hereby approved as reasonable and shall constitute a lien on the compensation herein awarded in accordance with law.Otherwise, the said award of the Florida Industrial Commission is in all ways affirmed.

'Done and ordered this 19th day of April, A.D. 1939.'

Appellant presents for our consideration two questions, as follows:

'First.Can employees of a business conducted by husband and wife jointly be included with the employees of a separate business of the husband in order to increase the number of employees of the husband for the purpose of invoking the jurisdiction of the Florida Industrial Commission(Workmen's Compensation Division)?'

'Second.Can the Industrial Commission allow medical and surgical and nurses' expense to one

'(a) Where the claims for the same have not been presented to the Commission on forms provided by the Commission?

'(b) Where the claims have not been presented to the Commission within twenty days from the completion of treatments or furnishing of services?'

There is no merit in the contention presented by the first question for the very simple reason that the status of a copartnership cannot exist between the husband and wife.A married woman is not competent to make a contract of partnership.She is without the legal capacity to assume such obligations.She has no separate legal existence; her husband and she are, in the eyes and contemplation of law, but one person.See Smith on Contracts, 307, 308;Second Story Equity JurisprudenceSec. 1367;DeGraum v. Jones,23 Fla. 83, 6 So. 925.

We think that the second question is without merit because the record shows that on the day following the accident in which the claimant was injured the employer, Foster, went to the hospital to which claimant had been taken and there ordered all services rendered on behalf of the claimant which could be rendered to save him.The record shows that there was incurred in this regard an obligation for such services rendered in the sum of $632.95, $178 of which was for services of three physicians and the balance $455.95 was...