SHARON HERRING, PETITIONER, CROSS-RESPONDENT,
v.
JACKSON BEARING & SUPPLY, INC., AND THE FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS, CROSS-PETITIONER
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The court held that the appellate commission erred in reversing the deputy commissioner's findings of fact regarding an industrial accident and dependency.
A deputy commissioner awarded workmen's compensation benefits, finding an industrial accident, dependency, and entitlement to funeral expenses. The Fu…
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On petition and cross-petition for certi-orari we review an order of the Florida Industrial Commission reversing a deputy commissioner who had awarded certain workmen’s compensation benefits.
The deputy commissioner in effect found that: (1) Christopher Herring came to his death in an industrial accident; (2) Sharon Herring, his widow, was a legal dependent; (3) two minor children by a prior marriage were major dependents of the decedent and were entitled to more than an ordinary participation in the award under the provisions of Fla.Stat. § 440.16(2) (c), F.S.A. (1965). The children, through their guardian, were entitled to the funeral allowance for expenses which they advanced; (4) fees for the respective attorney were allowable. The deputy entered an award in accordance with the foregoing findings. The Full Commission reversed with a holding that the accident did not arise out of and in the course of Herring’s employment. One commissioner dissented.
The petitioner seeks reversal. The cross-petitioner urges that if we hold for the petitioners, then we should find that the widow was not entitled to recover.
An analytical review of the evidence would serve no useful purpose. We think the deputy should have been affirmed under the rule of our opinion in United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951). At the time of his death, the conduct of the employee was sufficient to bring him within the rule of Julian v. Port Everglades Terminal Co., 135 So.2d 423 (Fla.1961).
While we personally might have arrived at factual findings contrary to those of the deputy, we remind ourselves, and the respondent Commission, that this is not the measure of appellate review.
The petition is granted. The cross-petition is denied. The order of the Full Commission is quashed and the matter remanded with directions to reinstate the order of the deputy.
It is so ordered.
ROBERTS, DREW, THORNAL, ERVIN and ADAMS, JJ., concur.
CALDWELL, C. J., and THOMAS, J., dissent.
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Painter v. Bd. OF Pub. Instruction OF Dade Cnty., 223 So. 2d 33 (Fla. 1969)…ly might have arrived at factual findings contrary to those of the deputy, we remind ourselves, and the respondent Commission that this is not the measure of appellate review. * * * ” Per curiam decision in Herring v. Jackson Bearing & Supply, Inc., 212 So. 2d 768 (Fla.1968). For a detailed and analytical analysis of the reasons for this rule so often announced in so many different ways by so many justices of this Court, see Hardy v. City of Tarpon Springs, 81 So. 2d 503 (Fla.1955). The Judge’s Order here is…
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Gibson v. Minute Maid Corp., 251 So. 2d 260 (Fla. 1971)…onstruction Company, 224 So. 2d 280 (Fla.1969) ; Payette v. Gulf stream Air-Conditioning, Inc., 224 So. 2d 686 (Fla.1969); and Tracy v. Americana Hotel, 234 So. 2d 641 (Fla.1970). This Court pointed out in Herring v. Jackson Bearing & Supply, Inc., 212 So. 2d 768 (Fla.1968), that even though the reviewing court might have arrived at factual findings contrary to those of the trial judge, this is not the nature of appellate review. Respondents rely upon Trieste v. Anchell, 143 So. 2d 673 (Fla.1962), where cla…
Authorities Cited
- US Cas. Co. v. Md. Cas. Co., 55 So.2d 741 (Fla. 1951)
- Julian v. Port Everglades Terminal Co., Inc., 135 So. 2d 423 (Fla. 1961)