Tigertail Quarries v. Ward
| Decision Date | 29 February 1944 |
| Citation | 16 So.2d 812,154 Fla. 122 |
| Parties | TIGERTAIL GUARRIES, Inc., et al. v. WARD. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Broward County; George W Tedder, judge.
McKay Dixon & DeJarnette and A. Lee Bradford, all of Miami, for appellants.
Roach & Hoyl, of Fort Lauderdale, for appellee.
Gladstone Ward, an employee of Tigertail Quarries, Inc., came to his death by accident in the course of his employment. At the time of his death he was married to Birdie Ward, although she and the decedent were not living together at the time of the fatal accident, having been separated for approximately eight months. The parties had one daughter, Geneva Ward, who was under the age of eighteen years. Birdie Ward and Geneva Ward filed claims for compensation under the Florida Workmen's Compensation Law. The claim of Geneva Ward was admitted. The claim of the widow was controverted. A full hearing on Birdie Ward's right to compensation was then held before a deputy commissioner of the Florida Industrial Commission. The deputy commissioner denied her claim. No application for a review of the deputy commissioner's order was made to the Full Commission. Instead, an appeal was taken directly from the deputy commissioner's order to the Circuit Court of Broward County. The employer and the carrier filed motions to dismiss the appeal on the ground that under the Florida Workmen's Compensation Law an appeal directly from a deputy commissioner's order or award will not lie to the Circuit Court. The motions were denied and the Circuit Court entertained the appeal upon the record made before the deputy commissioner. Thereafter, judgment entered reversing the deputy commissioner's order denying the claim of Birdie Ward, the Circuit Court finding that Bridie Ward, as widow entitled to compensation for the death of her husband. This appeal is from the judgment of the Circuit Court.
Two questions are presented upon this appeal: (1) Will appeal lie to the Circuit Court from an order of a deputy commissioner in a compensation case, without a review of said order having first been had by the Full Commission? and (2) was decedent's wife dependent for support upon decedent and living apart from him at the time of his death for justifiable cause? We shall consider the question in inverse order.
The deputy commissioner who took the testimony found that the claimant, Birdie Ward, was not entitled to compensation. A close study of the evidence convinces us that his order was correct and should have been affirmed. To entitle a widow to compensation under the Workmen's Compensation Law for the death of her husband resulting from accidental injury in the course of his employment, she must have been 'living with him at the time of his injury and death, or dependent for support upon him and living apart at said time for justifiable cause.' Sec. 440.02(15) Florida Statutes, 1941, F.S.A. It is admitted that the parties were not living together at the time of the injury and death. It was incumbent upon the claimant, therefore, to bring herself within the language of the act by showing that she was living apart from her husband for justifiable cause and that she was actually dependent upon him for support at the time of his death. We think that she has failed to prove either element.
The record shows that the wife left the husband voluntarily although he attemped to persuade her to stay. During the separation she worked when she could find work to do. If we understand the testimony correctly, she was living with another man for at least three or four months prior to the death of her husband. She asserts that this man was merely a roomer in her household, but we think this highly improbable for upon at least one occasion she referred to this third party as 'her husband'. The 'roomer' bought furniture and placed it in the three-room house occupied by the parties. Several times the claimant was seen lying in his bed, although not with him. Her clothes were seen draped upon his bedstead, her shoes were under his bed. During this period of separation she never made any move to return to her lawful husband. Some of the witnesses testified that during the separation the husband gave small sums of money to his wife and bought her food from time to time. Testimony on this point is not convincing. Apparently it was not believed by the deputy commissioner who conducted the hearing. But even if occasional contributions were made, the wife was not legally entitled to support from the husband under the circumstances. Although it may be the duty of a husband to provide a home and living expenses for the wife, it is the duty of the wife to live in the home he provides for her if she desires to enjoy the benefit. She cannot leave that home at pleasure, abandon the husband without justifiable cause and then require him to maintain her. Thompson v. Thompson, 86 Fla. 515, 98 So. 589.
In our opinion the claimant has failed to show that at the time of the death of her husband she was living apart from him for justifiable cause, or that she was actually dependent upon him for support.
The next, and final, question presented concerns the procedure adopted by the claimant to review the adverse order or award of the deputy commissioner. Applicable provisions of the compensation statutes dealing with procedure for the review of orders or awards are as follows:
Section 440.25(4) Florida Statutes 1941, F.S.A.
'If not in accordance with law, the compensation order or award of the full commission may be appealed by any party in interest to the circuit court in the circuit where the injury occurred within twenty days after the compensation order or award is filed in the office of the commission in Tallahassee.' Sec. 440.27(3), Florida Statutes 1941, F.S.A.
In Johnson v Midland Constructors, Inc., 150 Fla. 353, 7 So.2d 449, this court construed the compensation statutes here under consideration. By a divided court the...
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Beers v. Public Health Trust of Dade County, 84-780
...recognized the inequity of requiring an abandoned spouse to support the errant wayward spouse. See, e.g., Tigertail Quarries, Inc. v. Ward, 154 Fla. 122, 16 So.2d 812, 813-14 (1944) ("Although it may be the duty of a husband to provide a home and living expenses for the wife, it is the duty......
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...and he appealed. During the course of the appeal, the Supreme Court of Florida handed down a decision (Tigertail Quarries, Inc. v. Ward, 154 Fla. 122, 16 So.2d 812 (1944), holding that an appeal from the order of an individual deputy commissioner did not lie--only the orders of the full com......
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Davis v. Artley Const. Co.
...under our holding in Johnson v. Midland Constructors, Inc., 150 Fla. 353, 7 So.2d 449. On February 29, 1944, in the case of Tigertail Quarries v. Ward, 16 So.2d 812, not reported in Florida Reports, we receded, in part, from our holding in the Midland case and held that appeals in compensat......