Lovejoy Co. v. Ackis

• Decision Date: 04 January 1944
• Citation: 16 So.2d 297,153 Fla. 876
• Parties: LOVEJOY CO. et al. v. ACKIS.
• Court: Florida Supreme Court

16 So.2d 297

153 Fla. 876

LOVEJOY CO. et al. v. ACKIS.

Florida Supreme Court

January 4, 1944

Rehearing Denied Feb. 1, 1944.

Appeal from Circuit Court, Duval County; A. D. McNeill judge.

Osborne, Copp &amp Markham and J. Henson Markham, all of Jacksonville, for appellants.

E. W. Maynard and S. G. Jones, both of Macon, Ga., Chas. J. Regero, of Jacksonville, and Sam A. Nunn, of Perry, Ga., for appellee.

THOMAS, Justice.

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 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, 124 Fla. 116, 167 So. 808, and the absence of Ola Tate Ackis as a party to this appeal.

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 dicided 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 second 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, 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, 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.

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 accepted 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 inthe 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 collied 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. 440.09, Florida Statutes, 1941, Sec. 440.09 F. S. A.), where it is provided that if 'an accident happens while the employee is employed elsewhere than in this state, which would entitle him or his dependents to compensation if it had happened in this state, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this state, and if the employer's place of business is in this state or if the residence of the employee is in this state, provided, his contract of employment was not expressly for service exclusively outside of this state * * *.' Under it, as it applies to this contest, three elements must be established to warrant recovery: (1) meritoriousness, which we will not discuss, as the injury arose out of and in the course of employment; (2) execution of the contract in this state, which cannot be disputed, as it was entered into at Jacksonville; and (3) residence in this state of either employer or employee, a requirement fully satisfied here because the former is a Florida corporation. In any event the proviso obtains that the agreement was not expressly for services exclusively beyond the bounds of this state.

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, or approximately $472.99 after costs and expense 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. § 440.39, while she pursued her remedy at law and compromised her claim at a time when it had apparently become too late, by operation of the Statute of Limitations, for the employer to exercise any right of subrogation to a suit against any parties that were responsible for the death of the deceased. Thus is presented a very novel problem.

The time for filing claims is presecribed in Secs. 440.19 and 440.25, Florida Statutes, 1941, F.S.A. Secs. 440.19 and 440.25. Although the deceased met his death in 1938, the wife did not file her claim until August of the following year. It is not charged that it came too late for consideration by the Commission, but in view of the other circumstances of the case the delay is significant. At the hearing conducted by the deputy commissioner in December. 1940, it was first disclosed, so it is charged, that the wife had instituted her third party action. According to stipulation of the counsel the Statute of Limitations of Georgia, Code, § 3-1004, provides that 'suit must be filed within two years from the date of death of the person for the value of whose life a recovery is sought.' Any action, even if another one could have been brought in view of the compromise and its dismissal, was, therefore, barred about the time that the employer became aware that the claimant had resorted to a court of law.

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., 150 Fla. 442, 7 So.2d 790, 791, Mr. Justice Terrell observed that it was 'a product of industrialism and proceeds on the theory that economic loss to the individual by injury in line of duty should be borne in part by the industry in which [the workman] is employed in order that his dependents may not want.' It was written in C. F Wheeler Co. et al. v. Pullins, etc., Fla., 11 So.2d 303, 305, that '* * * its design was to provide for injured workmen and, in the event of their death from injuries received in their employment, their dependents, that the burden might not fall upon society but upon the industry served.' Again, in ...