author: AYRES, Judge. AYRES, Judge.

text:
    Maurice (Morris) ROY, Plaintiff-Appellant, v. Clemille GUILLOT, Defendant-Appellee.
    No. 8311.
    Court of Appeal of Louisiana. Second Circuit.
    May 18, 1955.
    On Rehearing Jan. 9, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.

      Coco & Bennett, Marksville, for appellant.
    Earl Edwards, Marksville, for appellee.
   AYRES, Judge.

Plaintiff instituted this action against the defendant for workmen’s compensation at the rate of $16.25 per week as for total and permanent disability and for medical expenses as the result of an accident allegedly sustained by him on or obout October 9, 1953, while in the employ of the defendant.

Specifically, plaintiff alleged that on the aforesaid date, while operating and driving a tractor in “snaking” and bunching logs in. defendant’s logging operations, he suffered a sharp pain in his' back while attempting to-roll a log with a cant hook. The movement caused the weight of the log to fall-on plaintiff, against the weight of which he strained to prevent being crushed by the log and cant hook, which accident produced a sub-acute lumbosacral strain and disc injury in the area of the fourth and fifth vertebra. On account of said accident and injury, plaintiff further alleged that he was totally and permanently incapacitated to do work of the same or similar character, and that he is, therefore, totally and permanently disabled within the terms of the Workmen's Compensation Statute, LSA-R.S. 23:1021 et seq.

Defendant, for answer to plaintiff’s demands, admitted plaintiff’s employment but denied that an accident occurred or that plaintiff was injured while in his employ, and alleged that if plaintiff sustained an injury such was not incurred while in his employ. Defendant further contended that he is a farmer by trade and occupation; that plaintiff’s employment with defendant was farm work, not hazardous by nature or made such by the Workmen’s Compensation Statute and, therefore, whatever injuries, if any, sustained by plaintiff where not com-pensable.

From an adverse judgment, plaintiff appealed.

The question first presented for determination is whether or not plaintiff’s employment was covered by the Compensation Statute, or, in other words, whether defendant’s trade, business or occupation is hazardous within the purview of the Statute. Defendant owns and operates a farm of several hundred acres, the operation of which is largely mechanized. He raises corn, hay and cattle. The machinery consists of a tractor, hay press, mowing machine and truck. For approximately 8 years plaintiff was employed by defendant to do general work in connection with defendant’s farm and cattle raising. He operated the tractor and other power mechanical equipment. At the time of the alleged accident, saw logs had been cut from timber located in defendant’s pasture, and plaintiff and another employee were engaged in snaking or bunching these logs for removal by trucks to a sawmill. Plaintiff was driving and operating the tractor used in the aforesaid operation.

Under the facts and circumstances above detailed, defendant’s contention that he was not engaged in a hazardous occupation or that plaintiff’s work was not hazardous can not be sustained. As was recently stated by this court in Norris v. Hargis, La.App., 77 So.2d 60, 61:

“It is well settled in our jurisprudence that although a business is not specifically designated as hazardous in the Workmen’s Compensation Act, it becomes hazardous if motor vehicles or other mechanical equipment are used in connection with its operations. Thus, in Speed v. Page, La.App.1952, 59 So.2d 138, affirmed 222 La. 529, 62 So.2d 824, it was held that the provisions of the Act were intended to protect an employee when he is engaged in employment with reference to, in connection with, incident to, or in promotion of, his employer’s trade, business or occupation; and it was not intended that the employee’s right of recovery be restricted to those instances in which injury was sustained in the performance of the regular course of the employer’s business, trade or occupation. See also: Collins v. Spielman, 1942, 200 La. 586, 8 So.2d 608; Griffin v. Catherine Sugar Co., Inc., 1951, 219 La. 846, 54 So.2d 121; Troquille v. Lacaze’s Estate, La.App.1952, 59 So.2d 505”,

the conclusion is inevitable that if plaintiff sustained an accident such occurred within the scope of the Workmen’s Compensation Act.

Next, logically in order for determination, is , the question of whether or not plaintiff experienced an accident. The trial court held that plaintiff had not sustained his burden of proof to that degree of legal certainty and by preponderance of the evidence, as required by law. In support of its conclusion, the court cited factors which in its opinion militated against plaintiff’s claims, such as contradictions of a fellow employee, the tardiness in seeking medical attention, and the circumstance of continuing work for several weeks subsequent to the accident, as well as to the uncertainty as to the time the work was performed in which plaintiff claimed to have been injured, and his activities following his discharge from employment.

Plaintiff is an unlearned and uneducated person, who, according to his own testimony, was barely able to write his name. He had a wife and children dependent upon him for support. His only means of livelihood was manual labor, such as he was doing at the time he was allegedly injured. He was with this employer for about 8 years. He was strong physically, and the record reveals that when working with other employees he performed the heaviest kind of work and took it upon himself to relieve fellow employees who were apparently not as able to do as strenuous labor, ^o complaints were registered against his work until following the alleged accident. It must be borne in mind that it is well settled in our jurisprudence that a compensation claimant is not stigmatized as a malingerer in the absence of clear, convincing and conclusive proof. In our opinion, the facts of this case, viewed in the light of plaintiff’s previous work record, as hereinabove referred to, do not accord with such an idea. Price v. Blythe Bros., La.App., 46 So.2d 159; Williams v. Texsun Supply Corporation, La.App., 47 So.2d 93.

On the occasion of the alleged accident, plaintiff and Emile Daigrepont were engaged in removing saw logs from the employer’s pasture. Daigrepont was hooking the chain to the logs and plaintiff was operating the tractor, dragging or “snaking” the logs and bunching them for loading on trucks for transportation to a sawmill. On the particular occasion, Daigre-pont was a short distance away in a gulley or cooley, whereupon plaintiff descended from the tractor and, with the aid of a cant hook, attempted to roll a log off the chain, when the log rolled forward, with plaintiff straining against the weight to prevent being crushed by the log and cant hook. The cant hook fell on his foot.or toe and he experienced a sharp pain in his back. While plaintiff does not claim that his fellow employee saw the accident, he states information as to his injuries was given his fellow worker that day. Plaintiff claims to have likewise informed his employer of his injuries, and on reaching home also informed his wife and son thereof. Daigrepont and defendant deny that plaintiff related the occurrence of an accident or injury to them. It was stipulated that Mrs. Roy was unable to attend court, but the son corroborated plaintiff in that he reported his injury. Likewise, plaintiff informed a number of his neighbors and friends of his injury and particularly one Clifton Saucier, operator of a bar and dance hall, for whom he had been working one night a week as a special deputy. Saucier testified, “I recall that he told me he would probably have to quit, because he couldn’t work. He couldn’t bend down and lift anything. As long as he was standing up, it was all right.” This witness was informed of plaintiff’s accident and injury while plaintiff still worked for the defendant and prior to his discharge in November.

That plaintiff alone witnessed and testified as to the occurrence of the accident in which he was allegedly injured is not a sufficient basis for rejection of his claim. It has been correctly stated that an accident or injury in a compensation case can be established by the testimony of the plaintiff alone if there are corroborative circumstances. O’Connor v. American Automobile Insurance Co., La.App., 32 So.2d 624; Sims v. Brown Paper Industries, Inc., La.App., 55 So.2d 311; Ike v. Johnston, La.App., 55 So.2d 21; Dolhonde v. Gullett Gin Co., La.App., 25 So.2d 104.

In Sims v. Brown Paper Industries, Inc., supra [55 So.2d 312], this court stated:

“The defendant earnestly contends that the fall of Mrs. Sims was feigned, and considerable testimony was adduced on just how wet the floor was and whether plaintiff’s shoes were more slippery with paste used in the paper bag process. But irrespective of the weight of this evidence, plaintiff says she fell and no witness was produced who could testify to the contrary, and consequently • we must accept her testimony on this point and determine if injury was caused by the alleged fall.”

In Dolhonde v. Gullett Gin Co., supra [25 So.2d 106], the court stated:

“We have held on several occasions that the testimony of the plaintiff alone is sufficient to make out his case if there is nothing to discredit his account of the accident and resulting disability, and his statements are supported by the surrounding circumstances.”

Plaintiff’s failure to seek immediate •medical attention is understandable and was possibly due to and is explained by his background and lack of education and due to the fact that he had worked for this defendant for 8 years and, as he stated, he was relying upon his employer to procure medical care for him.

Plaintiff was referred by his counsel to Dr. Daniel M. Kingsley, an orthopedist of Alexandria, Louisiana, for examination, who made a report under date of December -3, 1953. From his physical examination and by X-rays the doctor found plaintiff suffering a mild degree of scoliosis, with a slight wedging of the fifth lumbar vertebra down ■on the left side, with a mild hypertrophic spur formation of the fourth and fifth lumbar vertebrae adjacent to the fourth lumbar interspace, from which he concluded there was a possible disc injury at fourth or fifth lumbar intervertebral level and sub-acute lumbosacral strain. The doctor was of the ■opinion that plaintiff’s disability was real and that he was unable to do laboring work at the time of his examination, and suggested treatment, such as conservative therapy with support of his back, antispasmodics, and rest, and heat applied to the affected areas.

Dr. S. R. Abramson, a general practitioner of Marksville, Louisiana, examined jilaintiff May 17, 1954,' who reported with reference to his examination to the back and lower extremities:

“The patient stands and walks with a slight list to the left side. The low back is held rigidly in walking. There is spasm of the erector spine muscles bilaterally. There is limitation of flexion of the back by about 5°. Hyper-extension of the. back is limited to about 5°. There is slight left scoliosis in the lumbar region. Lateral flexion of the back is limited to about 20° in both directions. There is definite tenderness to palpation of the low back over the sacro-iliac joint on the right side and the lumbo-sacral ■ joint. There is very slight tenderness to deep palpation over the course of the sciatic nerves bilaterally. Straight leg raising causes subjective pain bilaterally — this pain is localized in the lumbo-sacral region. However, there is only moderate limitation of the motion of straight leg raising. Forceful abduction of each thigh causes pain in the back also. Simultaneous flexion of both thighs on abdomen is also painful.”

Dr. Abramson suggested a myelography for a definite conclusion on the possibility of a herniated vertebral disc, and that, should this condition be ruled out, a back brace be provided and physiotherapy applied to relieve plaintiff’s condition.

Dr. T. E. Banks made an examination of the plaintiff on behalf of the defendant on May 4, 1954, the results of which were detailed in his report of May 10, 1954. The doctor found that plaintiff stands with some slight list to the left and some complaint of tenderness in the lumbosacral region. His opinion was that a period of 8 to 12 weeks is usually the maximum time for recovery from a simple back strain and that after the lapse of more than several months from the date of the accident to his examination, definite symptoms of a more serious ailment should have developed, if existent at that time.

Plaintiff’s claim as to injuries received is therefore strongly corroborated by the aforesaid medical testimony. His claims of disability are supported by this same testimony. It is not suggested or intimated that plaintiff was involved in any other accident or that he may have sustained the injuries complained of in any manner other than that claimed by him.

We therefore are led to the inevitable conclusion that plaintiff’s claims as to both accident and injury are sufficiently supported and corroborated by the facts and circumstances surrounding the same, such as report of the accident and complaint of injury to members of his family, fellow employee, his employer and others, and by the medical testimony, which reveals that plaintiff sustained accidental injuries and as a result of which his physical condition was so impaired as to prevent the performance of his duties in connection with his former employment or of a kind similar in character.

We are not unmindful of the rule and reluctance of appellate courts to reverse the trial courts upon conclusions of fact, in the absence of manifest error. From our review of the record, we are convinced that our learned brother of the district court failed to give proper consideration and weight to the corroborative facts and circumstances in plaintiff’s favor, and that such constitutes manifest error and impels us to a different conclusion.

On the basis of the record now before us, we do not find that we would be justified in fixing any definite period or duration of plaintiff’s disability, and, while we are not unmindful of the general rule that, where the plaintiff is shown to be totally disabled as of the date of the trial but the duration of which is inconclusively established, compensation will be awarded as for total and permanent disability, Wynne v. Vaughn, La.App., 33 So.2d 711; Price v. Blythe Bros., supra, we have, in the interest of justice, determined to remand the case for the reception and introduction of proper evidence as to the duration of plaintiff’s disability so that such period of disability may be determined from the evidence and fixed according to law, particularly in view of the present status of the record, from which we are unable to determine whether or not plaintiff’s disability extended to the date of trial. By this expression, however, no limitation is placed upon the proof of the duration of plaintiff’s disability.

For the reasons herein assigned, the judgment appealed is annulled, avoided, and set aside and the case is remanded to the district court for the reception of evidence pertaining to the duration of plaintiff’s disability and for the fixing and determination thereof.

The defendant is taxed with all costs.

Set aside and remanded.

On Rehearing

AYRES, Judge.

Defendant on rehearing assigns as errors :

(1) Our reversal of the trial court on a question of fact in the alleged absence of manifest error;
(2) That plaintiff’s evidence was not entitled to the credit given it;
(3) That our ruling ignored the established jurisprudence that a plaintiff must establish his case by a preponderance of the evidence;
(4) That less weight was given to the testimony of a specialist than to the testimony of a general practitioner and undue weight was given the testimony of a general practitioner based upon an examination made soon after plaintiff’s alleged injury;
(5) That we ignored the requirements of the statute, LSA-R.S. 23:1317 providing that compensation shall be allowed only for such injuries of which there are objective conditions and symptoms.

In support of his contentions, defendant contends the trial court correctly stated the facts and resolved the issues in its opinion, wherein it stated:

“Uncontradicted in the record is the testimony of Eli Bordelon that plaintiff worked for him driving a tractor for about two and a half days around October 20th, 1953. Also to be considered is the admission of plaintiff that before and since his claimed accident he has had employment for one night a week as floor deputy in a night club. This employment, I take it, is what is usually referred to as that of a ‘bouncer’ for the eviction of unruly or undesirable patrons. One of these patrons, Wilfred Gremillion, testified to a scuffle he had with plaintiff early in the present year.
“Wilfred Dauzat, a saw-mill operator, bore out defendant’s statement that his logs were delivered to the mill on October 6th, evidence which is to be considered in connection with plaintiff’s admission that the bunched logs laid on the ground for several weeks before being transported away.
“Finally, to be considered is the fact that plaintiff did not consult a doctor until December 3rd, several days after his dismissal by defendant, and that he had gone to Dr. Bordelon in Marksville on September 24 with complaints of pain in his chest and muscles, an occurrence of significance if it can be^ concluded that plaintiff’s work in bunching the logs took place several weeks before October 6th.
“In coming to a conclusion on the issue of whether plaintiff sustained an accident as he claims it must be said that plaintiff has not borne the burden of proof resting upon him to prove the occurrence by the preponderance of the evidence. Factors militating strongly against his claim are the contradictions of his fellow employee, Daigrepont, the tardiness in seeking medical attention, and the circumstance' of continuing work for several weeks after the accident. Detracting further from the claim are the circumstances of uncertainty as to the time plaintiff was performing the work said to have produced his injury, and the activities in which he has engaged since his discharge in November. In short, plaintiff’s case is not one in which abiding faith can be placed”.

Continuing, defendant stated:

“The Judge might well have added also, the testimony of Dorris Dauzat, a friend and co-worker of plaintiff, who stated that plaintiff complained to him about one (1) year before the alleged accident, and told him then he was having trouble with his back”.

That plaintiff may have been employed as a “bouncer” in a night club both before and after his alleged injury appears to us a matter of no great importance. While we may not be entirely informed of the nature and character of all the duties of such an employee in a night club, it has not been established that such duties are similar in character to the duties of a tractor driver “snaking” or dragging saw logs, even though that in the performance of his duties as a bouncer plaintiff may have had a personal altercation on one occasion with one of his employer’s patrons.

Neither do we consider it a matter of controlling importance the fact that apparent discrepancies exist in plaintiff’s testimony, particularly as to various dates, such as when he was injured, the period of time the logs were banked before being transported to a sawmill or as to when he consulted a physician, in view of his total lack of education and of his inability to speak English due to his lack of education, and, further, in view of his reliance upon his employer for whom he had worked for eight years. This would also certainly tend to explain his tardiness in seeking medical attention and his continuation in the service of his employer, as we attempted to point out in our original opinion.

Likewise, it is a matter of no material benefit to- defendant that plaintiff may have reported to a fellow-employee in the night club a year before the accident that he was having some trouble with his back. Even so, plaintiff was apparently able to and did continue with his work and operate the tractor thereafter until he sustained the accidental injuries complained of.- If his condition is such, after the accident and as a result of injuries sustained, that, he is unable to further pursue the same work or work of the same or similar character, it matters not that he was already afflicted with a previously existing physical condition which had. not reached a disabling state. Even though the accident merely aggravates a pre-existing physical condition, nevertheless the injuries would be compen-sable if disability results.

We, of course, recognize the principles that the testimony of a specialist in his field is generally entitled to more weight than that of a general practitioner and that the testimony of a physician first examining or treating an injured party is usually entitled to greater weight than the testimony of one more remotely removed therefrom. We had no intention of departing ■ from these rules but endeavored to evaluate and give proper weight to all the testimony offered.

In this connection, the testimony of Dr. Daniel M. Kingsley, an orthopedist, was very positive. He stated:

“Not enough time has elapsed in this patient for recovery from a back strain. He certainly has disability and needs treatment. Conservative therapy should be used; together with re-examination. This patient is so apprehensive that he is not telling exactly what he feels. I do not think he is trying to exaggerate but he is not intelligent and he simply does not understand how to cooperate in the examination. Therefore, depending only on objective findings, an exact diagnosis cannot be made due to the mildness of his disability. Nevertheless,, his disability is real and he is unable to do laboring work at this time”.

Dr. Kingsley’s examination was made under date of December 3, 1953.

Dr. T. E. Banks, likewise an orthopedist, examined plaintiff May 4, 1954, at the request of defendant, -and at that time he found no-facts, indicating any residual disabling injury to plaintiff’s back. This evidence was largely responsible for the conclusion reached that probably plaintiff’s injuries of a disabling nature did not extend to the date of trial.

Dr. S. R. Abramson’s testimony, given after, an examination of May 17, 1954, is quoted in our original opinion and needs no further comment.

Lastly, plaintiff’s fifth complaint is without any substantial basis as plaintiff’s complaints are not wholly and entirely subjective, particularly as pointed out by Dr. Kingsley, whose diagnosis is a possible disc injury at the fourth of fifth lumbar inter-vertebral level and sub-acute lumbosacral strain, the X-rays showing a mild degree of scoliosis, with a slight wedging of the fifth lumbar vertebra down on the left side. Dr. Abramson likewise found, the scoliosis in the lumbar region and limitation in the movement of the back, with definite tenderness to palpation of the lower back over the sacro-iliac joint on the right side and the lumbosacral joint, and slight tenderness to deep palpation over the course of the sciatic nerves.

Our review of the record has failed to produce any change in the conclusions heretofore reached and as expressed in our original opinion. Therefore, our original decree and judgment is reinstated and made the final judgment of this court.

And it is so ordered.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    Dorothy Mae HOWARD, widow of Carrol Ledet v. The MARYLAND CASUALTY COMPANY, Incorporated, and Fairchild Motors Corporation.
    No. 20571.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Frank S. Bruno, New Orleans, for plaintiff and appellant.
    Deutsch, Kerrigan &. Stiles and Christopher Tompkins, New Orleans, Marian Mayer, New Orleans, of counsel, for defendants and appellees.,
   McBRIDE, Judge.

Plaintiff has appealed from a judgment dismissing her suit, which she had brought under the Workmen’s Compensation Law, LSA-R.S. 23:1021 et seq., claiming compensation at the rate of $16.25 for 300 weeks for the death of her husband, Carrol Ledet, which occurred as a result of injuries sustained by him on May 5, 1953, while driving an automobile from New Orleans to Shreveport for his employer, Fairchild Motor Corporation. The said employer and its workmen’s compensation liability insurer, Maryland Casualty Company, Inc., are-named as defendants. Plaintiff alleges that she was solely dependent upon the earnings-of Carrol Ledet for support.

-Carrol Ledet and Dorothy Mae Howard were married in November 1945 and lived together until some time in the latter, part of 1947. They then separated and Dorothy Mae Howard became the “common-law wife” of one Raymond Ball with whom she lived for about three years.

Carrol Ledet acquired a concubine named Sammy Lee Whitney, who says she was-with Ledet practically every night up to the date of his leaving on the fatal automobile trip. According to her testimony, it was Ledet’s custom to come to her home for supper and that he would “stay” with her sometimes until about midnight and on other occasions all night. Often he would take her to his room for the night.

Dorothy Mae Howard concedes that after the separation in 1947 she and Ledet never lived in the same house, but her contention is that during the year preceding Ledet’s death they continued to have marital relations and that they must therefore be considered as having been living together within the purview of the Workmen’s Compensation Law. She maintains she is entitled to the compensation , provided for by the statute in favor of the widow of a deceased employee who is wholly dependent upon his earnings for support at the time of the accident which caused his death.

After leaving Raymond Ball, plaintiff went to live at the home of her mother at 1710 Lafayette Street. The record shows that Ledet lived at other addresses, the last being somewhere on South Claiborne Avenue. Plaintiff testified:

“We stayed in different places. I have gone to his room some nights and some nights we go to other places.”

In an effort to have her story that she •cohabited with Ledet corroborated, plaintiff produced five witnesses, two of whom were her father and mother. Willie Howard, the father, testified that Ledet would “be in and out of my home and he come there every evening when he get off of work.” Plaintiff’s mother said they “lived •together and went shopping together.” The ■others said they frequently saw Carrol Ledet and Dorothy Mae Howard together at 1710 Lafayette Street and one stated:

“I know them as good friends, and man and wife.”

This testimony of the plaintiff and her witnesses makes no more of an impression on our minds than it did on the mind of the trial judge who stated: “ * * * it is impossible for me to believe the testimony •of the plaintiff or that of any of the witnesses called on her behalf.” We believe ■that it was Sammy Lee Whitney in whom Ledet was interested rather than Dorothy .Mae Howard.

LSA-R.S. 23:1231 provides that for injury causing death within one year after the .accident there shall be paid to the legal •dependents of the employee, actually and wholly dependent upon his earnings for ■support at the time of the accident and ■death, benefits as thereinafter provided for. LSA-R.S. 23:1251(1) creates a conr •elusive presumption of total dependency •of a wife upon a husband with whom she is living at the time of his accident or •death.

Of course, the presumption cannot arise in favor of Dorothy Mae Howard in the instant case as we are convinced the parties were living separate and apart.

However, plaintiff also claims that she was wholly dependent upon the earnings of Carrol Ledet for support and that he in fact actually supported her:

“By given me an amount of money, not no certain amount, various amounts. Sometimes according to how much I need and what he had and could afford to give me.
******
“ * * * sometimes he would give me $10.00, $20.00, $15.00. I have seen when he would get a job he would give me as high as $30.00 and $35.00.”

The mother and father of plaintiff and her other witnesses claimed that they saw Carrol Ledet give varying sums of money to plaintiff and went into minute details as to the amounts they saw change hands. It would be taxing our credulity to expect us to believe that Ledet would turn over to Dorothy Mae Howard each week the major portion and sometimes all of his weekly wages. He earned $30 per week from which the employer withheld the income and social security taxes, etc. His room rent each week amounted to $5. Furthermore, Sammy Lee Whitney claims she came in for a substantial amount every payday.

Considering all of the circumstances, such as Ledet’s meager wage, the long separation, Dorothy Mae Howard’s long period of open consortium with another man, and Carrol Ledet’s concubine, it would be a rare occurrence indeed and contrary to human tendencies for Carrol Ledet to have continued to support plaintiff. See Woodard v. Murphy Iron & Boiler Works, La.App., 172 So. 397; Kilman v. Smith, La.App., 28 So.2d 499; Williams v. Armour Fertilizer Works, La.App., 45 So.2d 640.

The judgment appealed from is affirmed.

Affirmed.


author: REGAN, Judge.

text:
    GULF COAST GASOLINE COMPANY, Inc. v. C. Adrien BODET, d/b/a Bodet Insurance Agency.
    No. 20539.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Thomas L. [Hollis, New Orleans, for de fendant-appellant.
    Kepper, Moulin & Kepper and Tucker & Schonekas, New Orleans, for appellee.
   REGAN, Judge.

The plaintiff, Gulf Coast Gasoline Company, Inc., instituted this suit against the defendant, C. Adrien Bodet, conducting his business under the trade name of Bodet Insurance Agency, endeavoring to recover the sum of $1,517.16, representing the balance due for unearned premiums which had been refunded to the defendant from the General American Casualty Company, for its account and not forwarded to it.

Defendant answered and generally denied the allegations of plaintiff’s petition and then reconvened asserting that the plaintiff was indebted unto him in the amount of $570.42.

From a judgment in favor of the plaintiff as prayed for and dismissing the reconven-tional demand, the defendant has prosecuted this appeal.

During the years 1951, 1952 and 1953, the defendant serviced a large portion of plaintiff’s insurance coverage through an open account. Defendant would place plaintiff’s insurance with a company of his choice and then bill it for the premium and upon receipt of payment would remit to the insurer their proportion thereof and retain his-commission of twenty percent. The relationship was a satisfactory one to plaintiff and a profitable one to defendant since approximately $11,000 of insurance premiums were involved each year. During the latter part of October, 1952, the Texas Mutual Insurance Company, upon the advice of defendant, cancelled two policies of plaintiff’s for the reason that it was a “bad risk” and for the additional reason that defendant advised plaintiff that he had been informed by “Lloyds of London” that the 'Texas Mutual Insurance Company may be involved'in financial difficulties. On November 7, 1952, defendant credited plaintiff’s account with the unearned premiums emanating from the cancelled Texas Mutual Insurance Company policies amounting to $2,088.18 and debited it for the replacement thereof in the General American Casualty Company. The debits appearing on a statement dated November 18, 1952, exceeded the credits and plaintiff mailed its check to defendant to cover the difference. Defendant, at this time, exerted no effort to secure from the Texas Mutual Insurance Company the unearned premiums as he was still transacting business with them and plaintiff had no interest in determining whether defendant had actually received •the refund. Defendant still had plaintiff’s account and plaintiff its credit and, therefore, their relationship, up to this time, was 'harmonious.

On or about December 15, 1952, the Texas '.Mutual Insurance Company was placed in receivership and defendant testified that Ihe has never collected the unearned premiums from this company.

Shortly after the issuance of thé policies ■of insurance by the General American Casualty Company, defendant notified plaintiff that the financial responsibility of this company was questionable and suggested that if they were offered coverage by any other reputable insurer to accept it rather than have the coverage become “an assigned risk.” Subsequently General American Casualty Company'withdrew its operations from Louisiana and once again plaintiff’s policies were cancelled. Plaintiff, following defendant’s suggestion, secured coverage elsewhere and the business relationship remained pleasant until defendant learned that another agent had written the insurance and would, therefore, collect the commission instead of himself.

It was at this time that plaintiff requested payment of the unearned premiums resulting from the cancelled policies of ■General American Casualty and a dissension then arose concerning the credit from the Texas Mutual Insurance Company.' The correspondence between defendant and plaintiff’s attorneys reveals that he acknowledged receipt of a credit or refund from the General American Casualty Company for the unearned premiums, but wrote that since he had been deprived of plaintiff’s insurance business, he assumed the attitude that plaintiff was not entitled to a credit for the amount of these unearned premiums despite the fact that he had initially credited plaintiff’s account on November 7, 1952, with the unearned premiums of $2,088.18, resulting from the cancellation of the Texas Mutual Insurance Company policies and thereafter assured plaintiff, through its attorneys, both orally and in writing that he would “take care” of the unearned premiums irrespective of whether Texas Mutual Insurance Company ever paid them.

The” record reveals that there is but one item in dispute and that is the unearned premiums resulting from the cancellation of the Texas Mutual Insurance Company policies amounting to the sum of $2,088.18. Defendant concedes that if he is liable it is for $1,517.16, the amount for which plaintiff brought this suit and which represents the unearned premiums refunded 'to the defendant for the plaintiff’s account by the General American Casualty Company.

The only question posed for our consideration is whether the defendant, after having credited plaintiff’s account, in the usual course of business, with the amount of the unearned premiums resulting from the cancellation of the policies of the Texas Mutual Insurance Company, thereafter clearly agreed to assume liability therefor irrespective of whether this insurance company ever'refunded these premiums to’him?

The trial court obviously was of the opinion that the defendant assumed liability for the refund of these premiums to the plaintiff irrespective of whether the Texas Mutual Insurance Company ever refunded them to the defendant and the record discloses an abundance of evidence in support of this conclusion.

On November 18, 1952, the defendant sent to the plaintiff a statement reflecting that it had been given credit as of November 7, 1952, in the amount of $2,088.18, for the unearned premiums ag the result of the cancellation of 'the policies with the Texas Mutual Insurance Company and under the respective dates of May 26, June 11, and July 8, 1953, the defendant addressed letters to plaintiff’s attorneys, wherein he stated:

“We have done everything in our power to' make our relations with Gulf Coast Gasoline Company pleasant because we always found them to be very fine people. In the case of the Texas Mutual which went into receivership, notwithstanding the fact that the Attorney General of Texas, prohibited any refund, we assumed the responsibility of giving proper credit to our policyholder, not because it was an obligation, but we enjoyed the business.
“When we cancelled General American coverage we asked that proper return premium be made as soon as possible and as soon as this is received, we will be more than happy to remit.
“From the above you can see that we could very easily have taken an arbitrary position, and assumed that any returns due could' be sought from the liquidation of the Texas Mutual.
“ * * * We are obligated to Gulf Coast ourselves and we solicit yóur further indulgence thereon with a definite assurance that within the next few weeks we will liquidate this matter ourselves.
“ * * * we * * * reiterate our prior assurance that the full amount due . your client will be paid by us whether received or not.”

On cross-examination the defendant was interrogated as follows:

“Q. Well when you made the agreement there were no ifs, ands and buts about it * * * ? A. That’s correct.
“Q. Whether you received the, return premium or'not? A. That’s correct.”

We are of the opinion that the defendant unequivocally assumed liability for the refund of the unearned premiums resulting from the cancellation of the policies of the Texas Mutual Insurance Company irrespective of whether that company ever refunded them to the defendant.

For the reasons assigned the judgment appealed from is affirmed! •

Affirmed.


author: GLADNEY, Judge.

text:
    Floyd GRIFFIN, Plaintiff-Appellee, v. COAL OPERATORS CASUALTY COMPANY, Defendant-Appellant.
    No. 8380.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    Writ of Certiorari Granted Feb. 23, 1956.

      Gravel, Humphries, Sheffield & Man-sour, Alexandria, for appellant.
    A. Leon Hebert, Baton Rouge, for ap-pellee.
   GLADNEY, Judge.

Floyd Griffin, an employee of the W. S. Peck Estate, has brought this action to recover additional workmen’s compensation and to annul and set aside a judgment rendered on September 10, 1952, approving a compromise settlement entered into between Griffin, his employer, and its insurer, the Coal Operators Casualty Company.

Grounds of attack upon the judgment alleged upon are: first, that a bona fide dispute did not exist between the parties to the compromise settlement as there could not have been reasonable doubt Griffin at the time of the settlement was totally and permanently disabled; and second, that fraud and misrepresentation were practiced by the attending physician, Dr. D. D. King and an agent of the insurer, Harold L. Vandyke, Jr., in two respects, viz., that Griffin was induced to enter into the settlement by false statements made by Vandyke, that the only way the doctor could be paid was from the proceeds of the settlement, and that he, Vandyke, had previously talked with W. S. Peck, Jr.

By way of defense, Coal Operators Casualty Company asserts: (1) that an action to annul a judgment cannot be rendered unless all proper parties are joined and that the W. S. Peck Estate, an essential party, has not been made a party to this suit; (2) that plaintiff’s petition merely alleges upon errors of fact and does not declare upon any facts which constitute fraud and misrepresentation; and (3) further that plaintiff has failed to prove he entered into the compromise settlement by reason of fraud or misrepresentation. Also we recognize the defendant has filed exceptions of no cause of action, no right of action and res judicata. And even though appellant has argued earnestly in support of the exceptions we pretermit consideration of these pleas, being of the opinion that the case should be decisioned upon the merits. By adopting this procedure we are enabled to give attention to all phases of plaintiff’s claim.

The trial court overruled the exceptions enumerated above and after trial on the merits, rendered the following judgment:

“Floyd Griffin filed this action to set aside a compromise agreement and settlement entered into between himself and the Coal Operators Casualty Company, which settlement was made a judgment of this court on September 10, 1952, in the suit entitled ‘Floyd Griffin vs. Coal Operators Casualty Company, No. 6545’ on the docket of this court, being a workmen’s compensation case, and he alleges as a ground for relief, error and fraud and in the alternative that the purported lump sum settlement was made at a prohibited discount.
“Upon the trial of this case, this court feels that the plaintiff, Floyd Griffin, has shown that the errors of fact were so gross that he was fraudulently deprived of his rights in making the lump settlement complained of and which amounted to a lump sum settlement at a prohibited discount, therefore,
“It is ordered, adjudged and decreed that the judgment dated September 10, 1952, in the suit of ‘Floyd Griffin vs. Coal Operators Casualty Company, No. 6545’ on the docket of this court, be, and the same is now set aside and declared to be null and void, and it is further ordered that the Coal Operators Casualty Company, pay all the cost of this proceeding.
“Judgment read, rendered and signed at Harrisonburg, Louisiana, this 31st day of December, A. D. 1954, in open Court.”

The defendant exhausted its remedies in the court a quo and has perfected suspen-sive and devolutive appeals to this court. Appellee has filed an answer to the appeal, praying that the judgment be amended to include an award of the additional compensation to which he alleges he is entitled.

For a better understanding of the basis for plaintiff’s claim and the defense thereto, we record the material and pertinent facts as we find them.

While engaged as a tractor driver for the W. S. Peck Estate, on May 31, 1952, Floyd Griffin received an injury to his left leg which entitled him to workmen’s compensation. W. S. Peck, Jr., one of his employers, took him to a clinic in Harrison-burg operated by Dr. D. D. King. It was found that the left tibia and left fibula were fractured. According to the doctor, on June 11, 1952, treatment required open reduction for the purpose of securing better alignment of the tibia, which had received an oblique compound fracture, and by the operative procedure a plate was affixed across the fracture site and secured to the bone by four pins or screws. Dr. King said after this was done there was good progress. Examinations and X-rays were had on July 16 and August 16, 1952. On July 29, 1952, Dr. King gave a report to the defendant, in which he estimated further total disability to continue from six weeks to two months. Under remarks, he said:

“On the 31st' of May, the date of injury immobilization without plating was made. On June 11 open reduction performed. Patient has done well since his surgery and should start weight bearing in 6 weeks to two months: No permanent disability is expected to result. He should be able to perform his normal occupation in three months or so.”

Thereafter it was the opinion of Dr. King that the leg continued to heal without incident until the latter part of December, 1952, when an X-ray picture revealed that one of the pins holding the plate . had sheared off. He thought this was due to a refracture which occurred after the cast was removed. Notwithstanding this interfering factor the doctor still believed the injured bone would heal if Griffin was fitted with a short leg brace.

About September 1, 1952, following receipt of the report of Dr. King of date July 29th, Harold J. Vandyke, Jr., an adjuster for defendant, came, to Harrison-burg and Sicily Island where he discussed the disability of Griffin with Dr. King and advised W. S. Peck, Jr. he wanted to make a settlement with Floyd Griffin. As a result of the negotiations Floyd Griffin agreed to- accept $350 and the additional sum of $157.80, the latter sum being the amount in excess of the statutory liability of the insurer for accrued medical expenses. Legal papers pertaining to the settlement were drafted and on September 10, 1952, Donald M. Garrett, attorney for the compensation carrier, defendant herein, picked up Floyd Griffin and drove him to Harri-sonburg for the purpose of securing judicial approval of the contemplated settlement. ■ Arriving at the courthouse Garrett secured an order appointing attorney Richard P. Boyd, Jr. to consult with and advise Floyd Griffin- as provided by the Workmen’s • Compensation Act; LSA-R.S. 23 :- 1021 et seq. Judgment was thereafter rendered approving the compromise so made.

During February, 1953, Dr. King referred Griffin to Dr. Daniel M. Kingsley, an orthopedic surgeon of Alexandria, Louisiana, for the purpose of fitting a short leg brace to Griffin’s leg. It was explained by Dr: King that the reference was made necessary because such braces were not to be had in Harrisonburg. After examination of Griffin, Dr. Kingsley disagreed with the procedure suggested by Dr. King, being of the opinion that there was non-union of the broken ends of the tibia and on March 10, 1953, performed an open reduction which involved the use of bone and skin grafts. Later other operations were resorted to and at the time of trial June 22, 1954, plaintiff was conceded by defendant to be totally and permanently disabled.

As bearing upon the issue of fraud and misrepresentation, we make reference to material testimony, by W. B. Taliaferro, overseer for the W. S. Peck Estate, Harold L. Vandyke, Jr., Donald M. Garrett, Richard P. Boyd, Jr. and reference also is made to additional testimony by Dr. D. D. King.

W. B. Taliaferro testified that while passing the home of Floyd Griffin, he was called in by B. M. .Bethard, defendant’s local agent, who was accompanying Vandyke. He heard some of the discussion between Vandyke and Griffin relative to the settlement. He stated it was his understanding that Vandyke told Griffin that in order for the doctor to be paid, the settlement would have to be made. He advised Griffin not to accept the settlement. He did not remain during the entire time of the discussion between Vandyke and Griffin.

W. S. Peck, Jr., testified Vandyke and B. M. Bethard called upon him at the gin in Sicily Island, inquired of him as to where Griffin lived, and told him of the anticipated settlement: Griffin testified that Bethard and Vandyke called upon him and offered to settle for $200; that Mr. W. B.. Taliaferro came in and stayed for a short while; that Vandyke told him.that unless the settlement was made the doctor would not be paid; that Vandyke finally offered to settle for $300, after which Griffin suggested they go and discuss it with Mr. Peck, but Vandyke told him he had already “saw him,” and that he, Griffin, then agreed to accept the settlement. Vandyke related that he called upon Dr. King who assured him there was good union of the fractured bone and that Floyd Griffin could return to his normal work within three months; that he also told this to Floyd Griffin and the latter said the doctor had told him his bone had knitted; that he could not remember stating to Griffin that the doctor was hollering for his money or that the doctor would not receive pay for his services unless the settlement was made; that he did tell Griffin that the ■ excess medical expense would be paid if the settlement was made; that he does not remember telling Griffin that he had already seen Mr. Peck, but this was a fact since he had already visited Peck that morning; and further, he testified that he made no misrepresentation and practiced no fraud in securing the consent of Griffin to the settlement. Donald M. Garrett stated that he went to Griffin’s home and they rode together to the court house on September 10th, during which time he discussed the compromise settlement to the extent of telling Griffin how much he would receive, that the sum agreed upon would be all he could get, and that it was necessary to secure the approval of the court. The attorney also said he secured an order from the judge appointing Richard P. Boyd, Jr., to represent Griffin, made his file available to Boyd, and left Boyd and Griffin discussing the matter. In his testimony Boyd gave the following account of his part in the transaction:

“A. As I recall, I discussed the matter with Floyd. I explained to Floyd that this petition and I believe, a release and receipt on the back, that when he signed that release and agreed to this settlement that it would be final and that the law provided that he would receive no more payments of
compensation. I explained he would receive no more weekly checks from the Insurance Company as a result of the injury he sustained to his leg. As to my exact words to him I cannot recall, but that was the gist of my explanation to Floyd, that on signing this and accepting the check, which I believe Mr. Garrett had for him, it says here $350.00, that upon accepting that and signing this release that that would be all he would get from the Insurance Company.”

Boyd further stated that he discussed the matter with Floyd Griffin in the presence of the judge.

Dr. King, in addition to the statements attributed to him heretofore, testified he fully informed Griffin of the condition of his leg upon each visitation but that he never on any occasion discussed with Griffin the question of his settlement. He related that he looked to Mr. Peck for payment for his services and that he did tell Mr. Peck his opinion as to the duration of Griffin’s disability. He said that he saw Vandyke on several occasions; and further, that he made no misrepresentation to anyone concerning Griffin’s injury or disability and that his prognosis as made in the report of July 29, 1952, represented his opinion.

The right of the parties to settle or compromise a claim arising under the Louisiana Workmen’s Compensation Act is permitted with certain limitations by LSA-R.S. 23:1271, 23:1272, 23:1273:

“§ 1271. * * *
“Whenever a bona fide dispute exists between the employee or his dependents on the one hand, and the employer or his insurer on the other, as to liability or coverage under this Chapter, whether the injuries complained of are compensable, the existence, nature, extent or duration of the injury or disability involved, the amount of compensation due the injured employee, or his dependents, or any other matter or thing affecting the right of the claimant to recover compensation hereunder, the interested parties shall have the right to compromise and settle such bona fide dispute, including the manner in which compensation is to be paid, by agreement to be approved by the court having jurisdiction.
“§ 1272. * * *
“The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. When the employee or his dependents are not represented by a lawyer the judge shall appoint one to advise them relative to the proposed compromise settlement. A reasonable fee for such services shall be fixed by the court and when taxed as costs, it shall not exceed the sum of fifteen dollars. The judge shall require such proof of the dispute between the parties, and of the other facts set out in the joint petition as he thinks proper.
“§ 1273. * * *
“If the court believes the compromise agreed upon to be fair and equitable, and that it was entered into primarily to avoid or to end litigation, it shall approve the same, and immediately enter it as the judgment of the court, and the said judgment shall not thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. The judge may, however, refuse to approve the settlement if he does not believe that it does substantial justice to the parties.”

Professor Wex S. Malone, in his work entitled “Louisiana Workmen's Compensation Law and Practice,” pages 509-512, makes the following pertinent observation relative to our jurisprudence involving the above referred to sections of the Workmen’s Compensation Act:

“Prior to 1942, decisions of the courts of appeal upholding compromise judgments based upon such differences were legion. However, in 1942 the supreme court announced in Puchner v. Employers’ Liability Assurance Corporation [199 So. 799] that section 17 of the Act should be construed merely as an ancillary to the provisions for lump sum settlements, and it even made the broad statement that compromise of a compensation claim was not authorized under the Act. However, it also suggested that it would uphold a compromise based upon a dispute as to whether the Act was applicable to the circumstances presented. It is clear that the court in the Puchner case was striking chiefly at compromises based upon speculation concerning the genuineness of the injury or its probable duration. For a time after this decision the courts of appeal invalidated all compromise agreements which were based upon uncertainty or dispute concerning the probable duration of the plaintiff’s disability. ¡
“The session of the legislature following the Puchner decision, amended section 17 of the Act so as to authorize all compromises based on any dispute concerning ‘the existence, nature, extent of duration of the injury or disability involved, the amount of compensation due the injured employee or his dependents, or any other matter or thing affecting the right of the claimant to recover compensation. * * *” Since this amendment the validity of compromises on these disputes has not been questioned.
“It should be noted, however, that it is not sufficient that the parties merely allege the existence of a dispute, when in fact there was none. A compromise agreement may be set aside where both parties were apprized that the worker was permanently disabled and thereafter attempted to settle on "the basis of a temporary hurt of uncertain duration. Such an agreement will be treated as an attempted lump sum settlement at a prohibited discount.
******
“When the compromise agreement based upon a dispute has been approved by the court and translated into a judgment it cannot thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. Ignorance of the complainant or the employer, or both, concerning the worker’s true condition is not sufficient to upset such an agreement. Similarly, the fact that the amount paid is trivial in light of the worker’s ultimate physical condition will not invalidate the compromise. However, where fraud inducing compromise is alleged in the suit for additional compensation the court will usually overrule an exception of no cause of action and permit a trial of the issue on its merits.”

In Racine v. Campti Lumber Co., La.App., 1949, 43 So.2d 288, 290, Judge Talia-ferro commented:

“Since the passage of Act No. 96 of 1942, controversies between employer and employee that involve the extent and possible duration of injuries may be compromised if the controversy be bona fide, and strict conformity to the requirements of the act be had; and when this has been done, such a compromise (after being approved by the proper judge) has the same force and effect as judgments in other character of cases. It may not be set aside save upon proof of fraud, wilful misrepresentation of true material facts, and for other causes that affect the validity of contracts generally, otherwise legal and binding.”

Reverting to the evidence adduced upon the trial of this case, we must admit that we are favorably impressed as to the credibility of the testimony of Dr. King and Vandyke. We can in nowise infer wilful misrepresentation and deliberate deceit by either one of these parties for the purpose of inducing plaintiff to enter into an inadequate settlement and with knowledge that the employee was permanently disabled at the time of the confection of the settlement. We recognize, of course, that if the defendant was on September 1 or September 10, 1952, attempting to make a settlement with knowledge-that'the duration of Griffin’s disability was indefinite, and therefore, under the Workmen’s Compensation Act must be considered of a permanent nature, such a settlement under those circumstances would have to be considered not as a compromise but as an attempt to effectuate a lump sum settlement at a greater discount than permitted by the law. In such instance the transaction could be judicially stamped with invalidity. We do not think that such a condition existed with reference to the instant transaction. The legality of the settlement approved September 10, 1952, must be tested under the light of circumstances existing at the time and not those which arose after the judgment of compromise was obtained. This test was approved in Puchner v. Employers’ Liability Assur. Corporation, La.App., 1941, 199 So. 799, annulled on other grounds, 198 La. 921, 5 So.2d 288.

It is our considered opinion that on July 29, 1952, Dr. King truly believed at that time that Griffin would have the normal recovery reported by him. And when the parties negotiated the settlement there did exist a bona fide dispute as to the duration of the disability, because they all acted in the belief that Griffin was temporarily disabled only and could return to his normal employment within several months from July 29, 1952. Griffin settled his case by taking compensation equivalent to forty weeks at the rate of $12.51 per week, the weekly rate of compensation to It is our considered opinion that on July 29, 1952, Dr. King truly believed at that time that Griffin would have the normal recovery reported by him. And when the parties negotiated the settlement there did exist a bona fide dispute as to the duration of the disability, because they all acted in the belief that Griffin was temporarily disabled only and could return to his normal employment within several months from July 29, 1952. Griffin settled his case by taking compensation equivalent to forty weeks at the rate of $12.51 per week, the weekly rate of compensation to

We cannot agree with the argument the statements by Vandyke to Griffin constituted misrepresentations which induced the worker to agree to the settlement. We are certain that Griffin looked to Mr. Peck to take care of his doctor’s bill and we are equally of the opinion that Griffin had ample opportunity to consult with Mr. Peck between September 1st and September 10th and that had he done so, and Mr. Peck had disapproved of the settlement, -plaintiff would never have signed the joint petition on September 10, 1952. We, therefore, reach the conclusion that plaintiff has not made out the charges of fraud and misrepresentation as alleged.

In brief of counsel it intimated that Boyd and the judge a quo failed to properly advise Griffin of his legal rights and the court did not exact proof in support of the joint petition for compromise, all as required by the Workmen’s Compensation Act. Such argument is untenable in view of the testimony of Boyd and the aver-ments contained in the joint petition, the allegations in which were over the admitted signature of Floyd Griffin. A further contention is made that advantage was taken of Griffin, an ignorant colored laborer. But this argument is without merit and is repudiated in the quotation from Professor Malone, supra. However, it is a matter of common knowledge that all people who cannot read and write are not ignorant. Many are fully cognizant of their rights. This may have been true with respect to Floyd Griffin who had previously participated in a compromise settlement under the Workmen’s' Compensation Act.

As a result of our conclusions as here-inabove set forth,'the judgment from which appealed is annulled and set aside and plaintiff’s. demands are rejected.


author: ROBERTS, Justice.

text:
    SENTCO, Inc., a Florida corporation, Appellant, v. Harold D. McCULLOH and Robert McCabe, doing business as The Candle-Lite Chemical Co., and Candle-Lite Chemical Co., a corporation, as successor to Harold D. McCulloh and Robert McCabe, doing business as The Candle-Lite Chemical Co., Appellees.
    Supreme Court of Florida. Division B.
    Dec. 20, 1955.
    Rehearing Denied Jan. 26, 1956.
    Hal H. McCaghren, West Palm Beach, and Allen Clements, Jr., Miami, for appellant.
    Charles E. Boland and Frank H. King, Coral Gables, for appellees.
   ROBERTS, Justice.

The complaining parties here are counsel for the plaintiff, Sentco, Inc., the nominal appellant. They were retained by Sentco, Inc. on a contingent fee basis to file an unfair competition suit against defendants, appellees here, and were successful in obtaining in this court a reversal of a decree adverse to plaintiff entered in that suit by the lower court. See Sentco, Inc., v. McCulloh, Fla.1953, 68 So.2d 577. We there held that the plaintiff was entitled to some of the relief prayed for, although opining that “From the record now before us it appears that any award for damages may be pure speculation.”

After the going down of the mandate on that appeal, and during the pendency of proceedings to determine what, if any, damages the plaintiff should recover, the plaintiff entered into a release and settlement agreement with the defendants in the amount of $2,000. At the hearing on the suggestion of defendant’s counsel that the suit should be dismissed because of the settlement agreement, counsel for plaintiff opposed the dismissal of the suit on the ground that the settlement agreement was fraudulently made to deprive plaintiff’s counsel of a substantial attorneys’ fee and on the further ground that “plaintiff’s counsel are entitled to a fee assessed against defendants as damages for defendants’ willful and deliberate acts of unfair competition.” Their motion to continue the prosecution of the cause for the purpose of recovering their attorneys’ fee was denied, and the cause dismissed. This appeal by plaintiff’s counsel, in the name of the plaintiff, followed. The sole point for determination here is whether the lower court erred in declining to continue the prosecution of the suit, as requested by plaintiff’s counsel. We find no error here.

While an attorney will, in some circumstances, be permitted to continue a suit in the name of his client in order to recover his fee and costs, after his client has made a fraudulent or collusive settlement intending to deprive his attorney of his fee and costs, Mabry v. Knabb, 1942, 151 Fla. 432, 10 So.2d 330, 337, and authorities there cited; Miller v. Scobie, 1943, 152 Fla. 328, 11 So.2d 892, it is well settled that, if acting in good faith, the parties to an action may settle and adjust the same without the intervention of their attorneys. Harper v. Strong, 1938, 135 Fla. 10, 184 So. 848, 849; 5 Am.Jur., Attorneys at Law, Sec. 116. The allegation of plaintiff’s attorneys that the settlement agreement was fraudulently made and a “ruse” to deprive them of the full amount of the fee to which they considered themselves entitled, is not supported by the record. The plaintiff’s right to damages was, at least, doubtful in view of the comment by this court on the former appeal that “any award for damages may be pure speculation.” The offer of settlement was presented to plaintiff’s attorneys by counsel for defendant and was by them communicated to plaintiff’s president, who-at first declined the offer, but later changed his mind. He appears to have advised his attorneys promptly of his acceptance of the-offer. As soon as he received the settlement check from defendants he gave one of his attorneys a check for their portion of the amount of the settlement in accordance with the contingent fee arrangement with them, and the check was cashed by the attorney to whom it was made payable. While it well may be that the amount received by them was.an insufficient remuneration for their services in the litigation in question, as here contended, the fact remains that they chose to accept the employment on a contingent fee basis; they were paid and accepted payment on such a basis. Whether or not the plaintiff could have recovered from the defendants the amount of its attorneys’ fee “as damages for defendants’ willful and deliberate acts of unfair competition,” as here contended (a point which is not decided, since it is unneces'-sary), is beside the point. The plaintiff chose not to attempt to do so but, instead, to settle the claim. Counsel have cited no-case which holds that a litigant is required to hazard the outcome of litigation, rather than settle the suit, simply because his attorneys are employed on a contingent fee basis. In fact, the authority is to the contrary. 5 Am.Jur., Attorneys at Law, Sec. 116.

In all the circumstances here, we think that the lower court was justified in refusing to continue the suit, as requested by plaintiff’s attorneys. Accordingly, the decree appealed from should be and it is hereby

Affirmed.

DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.


text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES and Marjorie C. Walsh, Appellants, v. Janet C. NICHOLS, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 26, 1956.
    L. S'. Julian, Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for Equitable Life Assur. Soc. of United States. ' '
    Aronovitz, Aronovitz & Caidin, Miami, for Marjorie C. Walsh.

      Charles H. Gautier and Robert M. Stur-rup, Miami, for Janet C. Nichols, appellee.
   ROBERTS, Justice.

We here review a final decree of the low■er court adjudicating that the appellant Walsh was not entitled to the proceeds of •certain life insurance policies issued by the appellant insurance company, and requiring that the appellant insurance company pay attorney’s fees to the appellee Nichols, who was successful in her claim that she was entitled to the proceeds of the policies, plus one-half of the costs of the litigation.

The appellant Walsh’s contention that the lower court erred in finding in favor of the appellee Nichols cannot be ■sustained. The evidence was ample to support the conclusion of the Chancellor that the decedent’s action in changing the beneficiary under the policies from the appellant Walsh to the appellee Nichols was his free act and deed, without any undue influence on the part of the appellee Nichols. The other questions argued here by the appellant Walsh present no reversible error. Accordingly, insofar as the decree finds that the appellee Nichols is entitled to the proceeds of the insurance policies, it is affirmed.

The decree must, however, be reversed as to that portion which requires the • appellant insurance company to pay to the appellee Nichols her attorney’s fee. The insurance company was confronted by two claims to the policies: one by the appellant Walsh, the surviving spouse of the decedent, who claimed that the decedent had been unduly influenced by the appellee Nichols to change the beneficiary of his policies from the appellant Walsh to the ap-pellee Nichols, and another by the appellee Nichols, who was named as the beneficiary therein. Its attempts at negotiating an agreement or settlement beween the two claimants failed, and each claimant filed a suit at law against the insurance company and the other claimant to establish their respective claims. The insurance company’s cross-bill of interpleader was dismissed, and the two suits were consolidated for trial, resulting in the decree referred to above. The insurance company contends here that it was error to dismiss its cross-bill for interpleader and to require it to pay an attorney’s fee to the successful claimant, Nichols, and one-half of the costs of the litigation.

As to the dismissal of the cross-bill of interpleader, there can be no doubt that the circumstances here were such as would have entitled the insurance company to file a bill of interpleader in equity. See Miller v. Gulf Life Ins. Co., 148 Fla. 1, 3 So.2d 519; McKinnon v. Reliance Ins. Co., 113 Fla. 370, 151 So. 699; New York Life Ins. Co. v. Bancroft, 122 Fla. 10, 164 So. 515. But it is equally true that a judicial decision in the suits filed against it by claimants would determine, once and for all, the proper disposition of the fund in its hands; and the consolidation of the two suits for trial served the same purpose in this respect as would have been accomplished by its cross-bill for interpleader. See 48 C.J.S., Interpleader, § 8, p. 44. The real reason for the company’s complaint on this point is that it was not allowed to recover the attorney’s fee and costs which, under some circumstances, may be awarded to the successful interpleader, cf. Miller v. Gulf Life Ins. Co., 148 Fla. 1, 3 So.2d 519. But even if the lower court committed technical error in denying the cross-bill for interpleader, the company would still not have been entitled to recover its attorney’s fee and costs in the circumstances here present, under the decisions of this court in Drummond Title Company v. Weinroth, Fla.1955, 77 So.2d 606, and Brown v. Marsh, 98 Fla. 253, 123 So. 762, 763. We hold, then, that the company has failed to show reversible error in respect to the denial of its cross-bill for inter-pleader.

The lower court was, however, in error in requiring the company to pay an attorney’s fee to the successful claimant, Nichols. Section 625.08, Fla.Stat.1953, F.S.A., under which the appellee Nichols claims a right to an attorney’s fee, provides that “Upon the rendition of a judg-, ment or decree by any of the courts of this state against any insurer in favor of the beneficiary under any policy or contract of insurance executed by such insurer, there shall be adjudged or decreed against such insurer, and in favor of the beneficiary named in said policy or contract of insurance, a reasonable sum as fees or compensation for his attorneys or solicitors prosecuting the suit in which the recovery is had.” This statute has consistently been interpreted by this court as authorizing the recovery of attorney’s fees from the insurer only when the insurer has 'wrongfully withheld payment of the proceeds of the policy. Bohlinger v. Higginbotham, Fla. 1954, 70 So.2d 911, and cases there cited. There was no controversy here between the appellee ¡Nichols and the insurance company; the controversy was between the appellant .Walsh and the appellee ¡Nichols. The insurance company admitted liability under the policy but declined to pay either claimant until the dispute between them had been settled, either by negotiation or judicial fiat. The facts would have supported a bill fbr interpleader, had one been timely filed, and thus there was no “wrongful” refusal to pay the proceeds of the policy to the appellee Nichols.

It was also error to assess one-half the costs of the litigation against the company. While ordinarily, in equity, the allowance of costs rests in the sound discretion of the Chancellor, there must be a basis upon which to predicate such discretion. Moore v. Hunter, 153 Fla. 158, 13 So.2d 909. The facts of this case, when viewed in the light of the holding here, do. not justify the assessment of any portion of' the costs against the insurance company.

For the reasons stated, the decree is affirmed insofar as it finds that the appellee Nichols is entitled to the proceeds of the-policies; and it is reversed insofar as it requires the appellant insurance company-to pay an attorney’s fee to the appellee-Nichols and one-half of the costs of the-litigation.

Affirmed in part and reversed in part.

DREW, C. J., and THOMAS and; THORNAL, JJ., concur.


author: PER CURIAM.

text:
    Clark H. CONSTANS, as Trustee of the Estate of F. M. Brown, trading as Hillsboro Hardware & Lumber Company, Bankrupt, Appellant, v. F. M. BROWN and Thelma Grace Brown, his wife, Appellees.
    Supreme Court of Florida. Special Division A.
    Dec. 2, 1955.
    Rehearing Denied Jan. 19, 1956.
   PER CURIAM.

Affirmed.


text:
    David WALEY and Joseph Kilpatrick, Appellants, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    Dec. 20, 1955.
    Rehearing Denied Jan. 20, 1956.
   PER CURIAM.

Affirmed.


author: BARNS, Justice.

text:
    C. Scott JOHNSON, Appellant, v. J. F. DICHIARA et al., Appellees.
    Supreme Court of Florida. Special Division A.
    Nov. 16, 1955.
    Rehearing Denied Jan. 31, 1956.

      Carroll W. Fussell, Bushnell, for appellant.
    Campbell & Campbell, Jacksonville, for appellees.
   BARNS, Justice.

Appellant-plaintiff brought suit to foreclose a mortgage and a claim of lien for money paid and labor and material furnished; defendants answered and counterclaimed. The counterclaim was defensive and also sought affirmative relief by way of damages. The final decree dismissed plaintiff’s bill and provided for affirmative relief to the defendants whereupon plaintiff appealed. It appears that the chancellor erred in dismissing the bill and in providing for affirmative relief to the defendants.

The mortgage was executed to secure the payment of a note given for labor and material to be furnished by the plaintiff in the building of an ice plant, pursuant to a contract simultaneously executed. The defendants admit the nonpayment of any portion of the mortgage and claim that no installments are yet due because of the provisions of the contract; and the counterclaim is based on nonperformance of the contract by the plaintiff-appellant.

Facts

The basic and controlling factors are not in controversy. Any conflict in the testimony on other matters for present purposes may well be omitted.

A provision of the contract provides:

“Party of the first part agrees to construct and install said ice plant and equipment in a good and workmanlike fashion and agrees that upon installation said plant will function properly so as to produce 6 tons of ice daily.
“Payments on the above mortgage, while set to begin June IS, 1950, shall not begin until 30 days after the plant is completed and in operation.
“Legal fees incident to clearing title and drawing contracts and other papers are to be paid by parties of second part.”

The construction and installation of the equipment was completed with the exception of a conveyor specified in contract and may be another item or two. The construction and installation have been substantially completed except as above stated and the plant has been delivered to the owners-defendants and operated by them for some time before the commencement of this suit.

The principal controversy is over the question of whether or not the contractor-plaintiff represented by the above quoted language that the plant would produce six tons of merchantable ice daily. There is some evidence to indicate that the plant may produce the six tons, when the controls are set for faster freezing; but then the ice is cracked and unmarketable. When the controls are set so as to produce marketable ice, it has produced only about three tons daily. The weight of the evidence is clear that the plant with the equipment provided will not produce six tons of marketable or merchantable ice.

The evidence shows that the defendants-owners were not experienced with ice plants and the inference may reasonably be drawn from the facts that the plaintiff knew that the ice was to be made for sale generally and not for a special prtrpose for which cracked ice would be satisfactory. The conclusion is that the implied representation of the plaintiff was that the plant would produce six tons of marketable ice daily, and it will not and never has.

Conclusions

The defendants do not seek rescission ab initio but cancellation in futuro as to defendants’ obligations. Since no issue was raised by the pleadings in the court below as to defendants’ right to rescind the contract ab initio, we do not decide whether they would have such right in the circumstances here present.

Since the defendants have accepted the plant without the installation of the conveyor, or any other items, they have in respect to such items waived performance by the plaintiff, but they have not waived the defense of failure of consideration pro tanto.

As to the equities between the parties, it would seem that the plaintiff’s lien under the mortgage should extend to the fair value of the benefits received by the defendants as of the date of surrender to the defendants less the sum of $4,500 already paid on the contract; by benefits is meant what have the defendants gained; not what has the plaintiff lost. Or, stated differently, the chancellor should find and determine on a quantum meruit basis the value of the plant at the time of its delivery to the defendants, and the purchase price should be abated to such value. Against such value would be credited the cash payment made and a decree of foreclosure should be entered for the deficiency, if any, between the value of the plant and the down payment, with interest from the date of the mortgage, and the defendants should be given a time within which to take themselves out of default by making the installment payments commencing thirty days after the entry of the decree.

Plaintiff also claims a lien of $1,000 for work done and materials furnished by the plaintiff to the defendants at their request in the construction of the ice plant. The defendants’ answer is that they are “not advised” and “demand strict proof”. The contract between the parties provides:

“It is expressly understood and agreed that any items not expressly set forth and^not covered in this contract, which may be ordered by parties of the second part, are to be furnished and installed only upon agreement as to the price therefor and with the express understanding that said items shall be properly secured by supplemental mortgage upon the entire ice plant and real estate upon which it is constructed” ,

It is a maxim of equity that “equity regards that as done which ought to have been done”, which means that equity will treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final acts, contemplated by the parties had been executed exactly as they ought to have been. 19 Am.Jur. 315, Equity, pars. 456-457.

Applying the maxim to the case at bar then equity will treat the claim as a mortgage for the amounts advanced, and work done and materials furnished by the plaintiff, if within the scope of the above quoted terms of the contract, as may be determined by the chancellor.

Counterclaim. Defendants’ answer contains a counterclaim seeking special damages alleging that in reliance upon the agreement of the plaintiff to erect an “ice plant that would produce six tons of ice per day” the defendants entered into contracts with others to furnish them ice and that they have been forced, to their injury. The plant seems to have been installed substantially as agreed upon, but fails to have the qualities which the plaintiff, Johnson, stipulated it would have, i. e., according to our interpretation, that the plant would produce six tons of marketable ice per day. The representations failed, but the defendants have failed to otherwise support their counterclaim for special damages by adequate proof of their allegations. The counterclaim for affirmative relief should have been denied, as such, but allowed to stand as defensive.

Reversed.

DREW, C. J., and TERRELL and ROBERTS, JJ., concur.


author: HOBSON, Justice.

text:
    PAN-AMERICAN CONSTRUCTION CO. and Bituminous Casualty Corp., Petitioners, v. Albert SEARCY, Cone Bros. Contracting Co., New Amsterdam Casualty Co., and Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Special Division B.
    Nov. 9, 1955.
    Rehearing Denied Jan. 31, 1956.

      Raymer F. Maguire, Jr., and Maguire, Voorhis & Wells, Orlando, for petitioners.
    J. Thomas Gurney, Orlando, Thacker & Thacker, Kissimmee, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   HOBSON, Justice.

On May 12, 1954, the claimant was injured by virtue of an accident arising out of and in the course of his employment. The question throughout this case has been who was the claimant’s employer. The Deputy Commissioner found and determined that the claimant was employed by Cone Bros. Contracting Co. The full commission without, so far as we can determine, reversing any of the Deputy’s findings of fact, found that the claimant at the time of his injury was employed by Pan-American Construction Company and reversed the award against Cone Bros. Contracting Co.

As a predicate for this compensation order, the Deputy Commissioner made the following findings:

. “Cone Bros. Contracting Co. is located in Tampa, Florida, is a large concern, employing over 300 persons, and engaged in the business of building roads and bridges throughout the State of Florida. Pan-American Construction Co. is located in Miami, Florida, is a much smaller concern, and appears to be engaged in somewhat the same type of work as Cone Bros, but on a much smaller scale. Cone Bros., on. March 29, 1954, had a contract with the State Road Department of Florida to construct certain roads in Osceola County. It was on this road construction project that the claimant was injured. The claimant testified that Mr. J. M. McNeill hired him, that at the time of the accident he was work-; ing for Cone Bros., and that he was paid by Cone Bros.
“There has been offered in evidence by Cone Bros, a letter signed in the name of Pan-American Construction Co. by one J. B. Hampton, proposing to furnish asphalt on the above road project. Mr. Cone has testified that he accepted in writing this proposal. There is no proof that J. B. Hampton had any -authority whatsoever from Pan-American Construction Co. to sign any such proposal, or that he was an officer of the company, or authorized by Pan-American Construction Co. to enter into any agreement. Mr. Cone testified that he 'thought Mr. Hampton represented Pan-American Construction Co. because he knew Mr. Hampton had been connected with the enterprises of Mr. John C. Dickerson, and Mr. Cone believed that Mr. John C. Dickerson had something to do with Pan-American Construction Co. However, there has been no proof offered that Mr. John C. Dickerson was an officer of Pan-American Construction Co., or had any authority to represent that company, the only evidence offered being directly to the contrary.
“No employee on the .job was ever paid by Pan-American Construction Co., all payroll accounts being sent to Cone Bros. Contracting Co. No equipment on the project was owned by Pan-American Construction Co., the trucks being owned by Cone Bros. Contracting Co. and John C. Dickerson Co., and the asphalt equipment being owned partly by Polk Construction Co. and by John C. Dickerson.
“J. B. Hampton testified that he was in the office of John C. Dickerson when Mr. Cone called him and asked if the asphalt was available; that the above referred to proposal was written out in longhand by Dickerson in his office, later typed, and signed by J. B. Hampton; that he took all his orders from John C. Dickerson and never worked under any officers of the Pan-American Construction Co.; that he does not know whether the above proposal letter was ever forwarded to Pan-American Construction Co.; that pursuant to his conversation with Cone, and the above letter, the equipment was 'moved to Osceola County and work commenced. It was while working around this asphalt equipment that the claimant suffered the accident and injury.
“The testimony of Mr. Cone and the Cone Bros. Contracting Co. bookkeeper is, that no accounting has ever been made to Pan-American Construction Co., no correspondence has been carried on with their office, no payments have ever been made Pan-American Construction Co., and no benefits received by them, nor are any payments ■contemplated; nor, from the testimony of Mr. Cone, was there to be any attempt to make any collections from Pan-American Construction Co., because of loss on the purported contract. Mr. Cone testified that he decided to terminate the contract because the costs were running too high and on occasions he was unable to find Mr. McNeill, the superintendent, on the job. He talked ■over the termination of the contract with Mr. Hampton or Mr. Dickerson, he doesn’t remember which, and agreed' to pay Dickerson $1,000.
“Mr.” J. M. McNeill testified that he is a Vice-President of Pan-American ■Construction Co.; that sometime prior to April 19, 1954, Mr. Dickerson asked him if he would like to go to Osceola County and take a job; that very little work was being done by Pan-American Construction Co., that their finances were low and that he wanted to remove himself from the payroll of Pan-American and work for some other organization; that he asked Mr. Dickerson who would pay him in Osceola County; and Mr. Dickerson told him Cone Bros. Contracting Co. That he didn’t know anything about any contract between Pan-American Construction Co. and Cone Bros. Contracting Co. That he went to Kissimmee and became superintendent of the work there on April 19; when he needed any materials he called the Cone Bros. Contracting Company in Tampa; that he reported the claimant’s injury to Mr. Connor and Mr. Hampton of Cone Bros. Contracting Co. That he signed for all supplies in Cone Bros. Contracting Co. order book; that he was paid by Cone Bros. Contracting Co., and that he assumed he was working for Cone Bros. Contracting Co., because he was paid by them.
“Mr. McNeill further testified that on May 14, 1954, he signed, as Vice-President of Pan-American Construction Co. the letter offered in evidence as Cone Bros. ‘Exhibit No. 2’, that Mr. Dickerson dictated the letter, and that he signed it in order to secure a release of any obligations there might be of Pan-American Construction Co.; that he was shown the original letter signed by Mr. Hampton, that he was unschooled in the law and did not know what effect such letter might have on Pan-American Construction Co., and that he thought the quickest and easiest way to relieve Pan-American Construction Co. of any liability or responsibility was to sign the letter of May 14.
“In summation, it appears that Cone Bros. Contracting Co., if it subcontracted the asphalt work with any one, did so with John C. Dickerson and J. B. Hampton; that Cone Bros. Contracting Co. knew that John C. Dickerson had several corporations and presumed that Pan-American Construction Co. was one of them; that Cone Bros. Contracting Co. put no great value on Pan-American Construction Co. being a party to any agreement, and was not particularly induced to enter into any agreement because Pan-American Construction Co. was a party; that there is no evidence that any benefit ever accrued to Pan-American Construction Co., by reason of any purported agreement; that the only evidence of Pan-American Construction Co. being connected in any way with the construction project in Osceola County is the connection of Mr. J. M. McNeill with the project. It is my opinion that no contract between Cone Bros. Contracting Co. and Pan-American Construction Co. was ever entered into; that Pan-American Construction Co. did not ratify any such contract by any action on its part; that it received no benefit from any such purported contract; that it had no equipment on the job and carried no payroll on the project; that the letter signed by J. M. McNeill, dated May 14, 1954, and being Cone Bros. ‘Exhibit No. 2’, in the light of the overwhelming evidence to the contrary, does not ratify a non-existing agreement.”

The following are the pertinent portions of the compensation order entered by the full commission:

“The deputy commissioner held that Cone Brothers Contracting Company was the employer of the claimant. We fail, however, to find in the record any evidence pointing to control over the claimant by Cone. On the contrary, the evidence is undisputed that Cone Brothers, pursuant to a purported contract, divorced itself from control over this project. The fact that the Cone Company paid the men does not tend to prove control because the purported contract itself required the Cone Company to advance the money to meet the payroll, said advances to be charged against future contract payments by Cone to Pan-American. The purported contract required Cone to furnish only the hauling equipment. Consistent with the agreement, such equipment, and none other was supplied by Cone. The remaining equipment, including the plant, was moved in by Hampton for operations. Though in fact owned by Dickerson, the record discloses a close working arrangement between Dickerson and Pan-American.
“In the opinion of the Commission, it is not necessary to determine whether Hampton had authority or not to negotiate for and enter into a contract binding Pan-American. It is undisputed from the evidence that McNeill, vice-president of Pan-American, ratified the agreement of March 29, 1954. Pan-American was a subcontractor, hired the claimant, and had secured compensation coverage. Accordingly, it is liable for benefits under the Act with respect to claimant’s injuries.”

It is evident that the full commission was of the view that, as a matter of law, the letter dated May 14, 1954, and signed by J. M. McNeill as Vice-President of Pan-American Construction Company constituted a ratification of the putative agreement between Cone Bros. Contracting Co. and J. B. Hampton.

We cannot attach such legal consequences to this document. The letter referred to a pre-existing contract, it is true, but sought a cancellation of it, and a release of Pan-American from “all responsibility in connection with this project”, which was granted. This, without more, did not amount to an express affirmance upon which ratification might be based. At the most, it was intended to terminate obligations between the parties, if any there were. Nor could it have been construed as an affirmance by acquiescence or estoppel, because the record is barren of evidence of any “conduct of the purported principal manifesting that he consents to be a party to the transaction” or “conduct justifiable only if there is ratification”, Restatement of Agency, Sec. 93(1). Cf. Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 136 So. 238, 145 So. 757, where all work performed was obviously done pursuant to a contract, the officers of the church, who were in possession of all the material facts, watched the work throughout its performance, and we held that such officers could not later be heard to say that they had not ratified the previously unauthorized contract.

A further objection to the conclusion reached by the full commission lies in the failure of this record to sustain the proposition that J. M. McNeill was authorized to bind Pan-American as its agent. His signature as vice-president is the only scintilla of evidence pointing in the direction of authorization. We have held that in a proper case the signature of the president of a corporation may bind the corporation, under the doctrine of inherent powers. Miami Jockey Club v. Lillias Piper, Inc., 115 Fla. 612, 155 So. 806; E. O. Painter Fertilizer Co. v. Boyd, 93 Fla. 354, 114 So. 444; Cotton States Belting & Supply Co. v. Florida R. Co., 69 Fla. 52, 67 So. 568. These powers are “in reality one form of apparent powers, i. e., powers apparent from the very nature of the office”. Fletcher Cyc. Corporations, Vol. 2, Sec. 438, pp. 324-5. The vice-president of a corporation, in the ordinary case, does not per se possess the inherent powers of the president unless he is acting in the president’s absence, disability or death. 19 C.J.S., Corporations, § 753. The permissible scope of his apparent authority is correspondingly restricted. And in this case the proved course of dealing between the parties distinctly negatives the creation of any appearance of authority, on McNeill’s part, to breathe life into the purported agreement on behalf of Pan-American. No action was taken by third parties in reliance upon McNeill’s signature as vice-president, nor did any benefit accrue to Pan-American as a result of McNeill’s action, as the Deputy Commissioner concluded.

The name of John .C. Dickerson is of frequent appearance in this record, but this individual is not shown to have been an .■fficer or agent of Pan-American, authorized to execute any contract on behalf of said corporation or to ratify the purported contract between Cone Bros. Contracting Co. and Hampton. The commission may have entertained the view that the record suggests, as perhaps it'does, that Dickerson either acts for, owns or controls Pan-American, but proof of such fact is woefully lacking. If a “fine Italian hand” played any part in this transaction, the evidence herein fails to identify its possessor.

We are of the opinion that the findings of the Deputy Commissioner were supported by competent substantial evidence, and that the conclusions which he reached therefrom were’ correct in law. It follows that the petition for writ of certio-rari should be granted and the challenged order quashed.

It is so ordered.-

-DREW, C. J., and THORNAL and SE-BRING, JJ., concur.