text:
    Mrs. Dula Marie HOLLAND v. MARQUETTE CASUALTY COMPANY et al.
    No. 4436.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    King, Anderson & Swift, Nathan A. Cormie, William B. Baggett, Lake Charles, for plaintiffs-appellants.
    Moss & Graham, Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for defendants-appellants.
   LOTTINGER, Judge.

This is a suit under the Workmen’s Compensation Act of the State of Louisiana for death benefits by the surviving dependent widow of Clifton Holland for herself individually and for and on behalf of the three minor dependent step-children of deceased. Companion suit entitled Humphreys v. Marquette Casualty Company, 95 So.2d 872 was consolidated with this suit for trial. After certain preliminary proceedings were disposed of the petitioners in the present suit were Mrs. Dula Marie Holland, individually and for and on behalf of her three minor children, Daniel Gene Stanley, Judy Faye Sensat, Paulette Gayle Sensat, and Mrs. Emey Holland, for and on behalf of her minor child, Leslie James Holland. Mrs. Dula Marie Holland was the surviving dependent widow of the deceased, whereas, Mrs. Emey Holland was a divorced wife of the deceased. The defendant Marquette Casualty Company was the compensation insurer of N. P. Martone, the operator of a rice farm, and American Casualty Company, the compensation insurer of Bon Air Ranch, a partnership which operated a cattle ranch.

The Lower Court rendered judgment in favor of Mrs. Dula Marie Holland and her three children, and against both insurance companies, in solido. The action by Mrs. Emey Holland, on behalf of her minor son was dismissed. Appeals have been taken by both insurance companies as well as Mrs. Emey Holland and Mrs. Dula Marie Holland.

The evidence shows that Bon Air Ranch was a partnership composed of Mrs. Zim W. Todd and her daughter, Mrs. Undine Todd Martone. It has been operated as a partnership since the death of Mr. Zim Todd in 1954. Prior to that time the ranch was operated as a sole proprietorship by Zim Todd. The ranch owned 670 acres of land, all of which was under lease to N. P. Martone as a rice farm. Bon Air Ranch was the lessee of an additional 15,000 acres of land from several lessors. Of the leased land, Bon Air subleased some of it to Mr. Martone as well as to others for rice farming.

The remainder of the leased land was used by Bon Air in its cattle raising activities. It might, therefore, be said that Bon Air Ranch was in the business of raising cattle as well as in the business of leasing and then subleasing land for rice farming.

Bon Air Ranch normally employed three “cowboys” to assist in its ranching activities. In addition thereto, Mr. Martone was the General Manager of the ranch, a position which he occupied without remuneration except for the satisfaction of assisting in the operation of the Bon Air Ranch, which was jointly owned by his wife and mother in law. Bon Air Ranch owned its own equipment, maintained its own payroll and other records, paid its own social security taxes, carried its own compensation insurance, and had its own cattle brand. At the time of the accident, the Bon Air Ranch owned some 1,800 head of cattle.

Mr. N. P. Martone was a rice farmer as well as a cattle rancher. He owned no real property. His business was conducted on property which he leased from others. Among the several lessors to Mr. Martone was the Bon Air Ranch. By far the greater portion of Mr. Martone’s business was rice farming. As a sideline, he owned some 300 head of cattle.

Mr. Martone ran his own business. He normally employed some six to eight employees. He owned his own equipment, kept his own payroll as well as other accounts, paid his own social security taxes, carried his own compensation insurance, and had his own cattle brand. His business was conducted on property which he leased from others for a certain percentage of the crop raised. He owned several rice bins which were situated on property leased him from Bon Air. Bon Air also owned three bins which were adjoining those of Mr. Martone.

The testimony reflects that the busiest time of year for cattle ranching is during the summer months. Rice farming, on the other hand, has its peak period during harvest season, which is during the rancher’s slack season. It was the custom in the area for the ranchers and farmers to swap labor, so as to help each other out during their busy season. This custom prevailed between Bon Air Ranch and Mr. Martone. During harvest season Mr. Martone would use “cowboys” to assist his laborers in harvesting the rice crop. On the other hand, during the summer the ranch would use some of the farm hands to assist the “cowboys” in cleaning out ditches and repairing fences. The arrangement was merely a swap of time; the employee would be paid by his regular employer during the time he was assisting the other activity. Mr. Martone testified that he kept record of the “swapped” time in his head; that at the time of the accident the Bon Air Ranch owed him some time.

Although there was a close family relationship between the owners of the two businesses, and they cooperated one with the other, it appears that the businesses were separate and distinct entities. Loans were acquired by each in its own name; bank accounts and charge accounts with merchants were carried by each in its own name. Had it not been for the fact that they each had separate compensation insurers, this case possibly would not be before us.

The evidence discloses that on and for a few days prior to September 27, 195S, Mr. Martone was engaged in harvesting rice from land leased to him by Farmers Land and Canal Company. The rice was loaded on two trucks owned by Mr. Martone and transported a short distance away to a rice bin owned by Mr. Martone but situated on Bon Air Ranch. At the time, Mr. Martone had about seven regular employees on his payroll. As he needed two truck drivers and unloading helpers he told Clifton Holland and Joe Humphreys, who were both regularly employed as “cowboys” by Bon Air Ranch, to go to the fields and assist in harvesting his rice.

Holland and Humphreys had assisted in the harvesting for a few days prior to the accident. On the morning of September 27; 1955, prior to commencing the day’s harvesting activity, it was necessary to move a horizontal and vertical-auger from one bin to another bin. Holland and Humphreys assisted in moving the equipment, which came into contact with power lines resulting in the electrocution and death of both Holland and Humphreys.

Suits were filed by the surviving widows and alleged dependents of both Holland and Humphreys. Both suits were consolidated for trial, however, separate judgments were rendered. The facts are identical except for difference in the status of the dependents.

Holland’s widow, Mrs. Dula Marie Holland instituted suit against the defendant, Marquette Casualty Company, compensation insurer for N. P. Martone, for maximum compensation and benefits, maximum funeral expenses, and penalties, interest and attorney fees for herself and her three minor children who were stepchildren of Holland and who had been dependent on Holland for support. Subsequently, Leslie James Holland, a child by prior marriage and an alleged dependent of Holland, was joined as a petitioner through his mother Mrs. Emey Holland. Defendant, Marquette Insurance Company attempted to bring in the compensation insurer of Bon Air Ranch, American Casualty Company, via Third Party Pleadings. This attempt was rejected by the Lower Court. Subsequently, the petitioners amended their pleadings to bring in American Casualty Company as a code-fendant.

The main controversy is: Which insurance company is liable for compensation payments under the Workmen’s Compensation Act? The parties have agreed that employees of both N. P. Martone and Bon Air Ranch are engaged in hazardous occupations. They have agreed that the accident occurred and have agreed to about everything except as to who is liable for payment of compensation, and to whom is compensation payable.

The Lower Court evidently concluded that Holland and Plumphreys were working for both Bon Air Ranch and N. P. Martone, as it held both insurance carriers liable for compensation. After rehearing it awarded judgment in favor of Mrs. Dula Marie Holland, and against defendants in solido, for $14.26 per week for 300 weeks beginning September 27, 1955, with 5% interest on all past due installments, and judgment in favor of Holland’s three stepchildren in the amount of $4.75 each per week for a period of 300 weeks. Burial expenses were awarded Mrs. Holland in the amount of $300. The demands on behalf of Leslie James Holland, Holland’s child by a prior marriage were dismissed on rehearing. Appeals were granted Mrs. Emey Holland, on behalf of her minor son, Leslie James Holland, as well as Mrs. Dula Marie Holland and both insurance companies.

In order to determine who is liable for the payment of compensation for the deaths of Holland and Humphreys, we must decide who was their employer at the time of the fatal accident.

56 C.J.S. Master and Servant § 330 b, p. 1093 in discussing the servant of one master controlled by another states as follows:

“Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular .employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him. Thus, if the servant injures, or receives injuries in such employment from the negligence of, a servant of the person to whom he is lent, the fellow-servant rule may bar recovery therefor from the person to whom he is lent. Further, if any liability should arise for the negligence of such servant in the particular employment of another master, it does not attach to the general master, but attaches rather to the special master.
“In determining whether a servant lent by one master to another has become the servant of the latter, the test ordinarily is whether, in the particular service which the lent servant is engaged to perform, he continues liable to the direction and control of his general master or becomes subject to that of the person to whom he is lent or hired. Nevertheless, the servant so lent must consent to the change of master, expressly or impliedly; and to bring the case within the fellow-servant rule the services rendered by the employee for the third person must be such as to create the legal relation of master and servant. Actual exercise of the right to control the servant of the general employer in the service of a special master is not necessary where the special master is willing to rely on the experience and skill of the lent servant. The fact that the general master pays the wages of the servant does not preclude him from becoming pro hac vice the particular servant of another.”

Malone, in his text on Louisiana Workmen’s Compensation Law and Practice, on Page 61, in discussing borrowed employees says:

“One employer may lend his employee (sometimes together with a piece of equipment, such as a truck or tractor) to another. If the employee is injured while performing the work of the borrower, who is responsible for compensation? Since the purpose of the lending arrangement is to subject the employee to the control of the borrowing employer, it generally follows that the latter alone is liable to pay compensation, despite the fact that the lender pays the wages of the employee, and retains the right to dismiss him or substitute another in his place. However, it is now generally conceded that for some purposes the claimant may still be regarded as being in the employment of the lender, as where, for instance, he is injured while repairing or maintaining a piece of equipment that was entrusted to him by the lender. Likewise, if the equipment is highly complex or specialized, so that the borrower would not likely direct the method of operation, the employee may be regarded as subject to the control of the lender in operating it.
“A lending arrangement is in effect a three party agreement. This means that not only must there be an understanding between lender and borrower; but the employee, as well, must have consented to the change of masters. For example, a construction laborer was ordered by the company employing him to perform work on the private property of one of the company’s officers under an arrangement whereby the company continued to be responsible for his wages, but was to be reimbursed by the officer. This was without the knowledge of the employee, who reasonably believed that he was doing company work subject to its orders. Under these circumstances the company was not allowed to deny that the claimant, who was injured during this assignment, was its employee.
“Generally speaking, the lending employer has no interest in the result to be accomplished by the borrower through the medium of the borrowed employee. His sole undertaking is to make the employee available for the borrower’s work, and to that purpose he relinquishes control of his servant.”

On Page 66, in discussing Partnership Employments and Joint Enterprises, Mr. Malone says:

“One employee may divide his time between two or more employers. If each of these has separate work to be done and each exercises exclusive control over the employee during the time the latter is working for him, the employments should be designated as separate and successive. Under such circumstances the injured employee is concerned only with the employer for whom he was working at the time of the accident. The fact that the claimant did not devote all his time to the work of this employer may be important in determining the wage upon which compensation is to be based, but it does not create a joint employment so as to subject the other employers to liability. Furthermore, the power to control the doing of the work, rather than liability for wages, is determinative as to who was employer at the time of the accident. Thus, P may agree with A that he will work for A during the mornings and for B during the afternoons, but that A is to be solely responsible for the entire day’s wage. If P is injured while doing B’s work he must look exclusively to B for compensation, unless it was also understood that by reason of A’s payment of the wage he was to have a controlling hand in the work.
“If, however, the employee is subject to the joint control of several employers at the same time and for the same work, he is entitled, if injured to subject them all to his compensation claim. The amount for which each employer can be made liable is discussed in the following paragraphs; but there is no reason why only one employer should be held to the exclusion of the others.
“If the work being done at the time of the accident was in furtherance of a joint enterprise shared by all employers, so that each of them had a direct financial interest in the entire job, we are presented with a case of partnership or joint enterprise liability. Under these circumstances there is in reality only one employer, namely the partnership. Each partner controls the work for the benefit of himself and the other partners as well; and if one employer only is sued, he can insist that the others be joined and that liability be imposed first upon the partnership assets, if any. The individual liability of the partners is determined according to Articles 2872 and 2873 of the Louisiana Civil Code.”

In Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137, 140, Justice Hawthorne thoroughly explored the so-called “whose business” and “control” test, and concluded that these two tests are really one and the same ánd determining who controls the servant is merely a means of determining in whose business the servant is engaged.

In this case Justice Hawthorne stated:

“It is a well settled principle of law that the master is liable for the torts of his servant committed in the scope and course of his employment, but it is often difficult where two possible masters are involved to determine which is liable for the tort, and to determine such liability we must look to the doctrine of the borrowed servant or employee pro hac vice. In determining liability under this doctrine in some cases the courts have imposed liability on the person in whose business the employee was engaged at the time the tort was committed. In others the test has been the right of control over the servant at the time the tort was committed. It has been pointed out that in applying the latter test it is often difficult to decide just what fact or facts constitute control. Mere division of control does not, in itself, raise the presumption of surrender of control, but there is a presumption that the general employer is liable, and it rests upon him to show that, as to the particular work in question, the servant has been lent and is performing only the borrower’s work, and that he was not the defendant’s servant at all. It has been said that even the control test is not an infallible one, and that the elements of each case must be taken into consideration. Where, however, it is clear that control by the defendant was coupled with performance for the defendant and in the defendant’s business, the result is certain.”

Justice Hawthorne further stated:

“In the instant case Guillory was in the general employ of Hunt Tool Company, which selected him, paid his wages, and had the right to discharge him for any cause. By agreement with Morris & Meredith, Hunt Tool Company was to do its regular business through its servants in the common way, and Guillory was doing the work of this defendant, that is, rendering welding service, for which it was to receive an agreed compensation. The materials and welding equipment were its own. The work was done by the defendant for a price as its own work by and through its own instru-mentalities and servants in its general employ.
“Since Guillory was in the general employ of Hunt Tool Company, it must appear from the evidence in order for it to be relieved from liability that the relation of master and servant which existed between them had been suspended,. and that a new like relation between Guillory and Morris & Meredith had been created and was in existence at the time of the accident.
“Under the circumstances of this case we conclude that it was the work of Hunt Tool Company which was being performed, and that that company had not relinquished the right to control Guillory in the performance of it. The fact that the official of Morris & Meredith suggested that Guillory use an electric torch in the welding of the tank, and that Morris and Meredith pointed out the welding to be done, did not constitute authoritative direction and control but was merely suggestion as to details and constituted necessary cooperation in the work being furnished in the larger undertaking.
"We therefore conclude that Guil-lory was not the borrowed servant of Morris & Meredith but was the servant or employee of Hunt Tool Company at the time the accident occurred.”

The facts of the blunt Tool Co. case are easily distinguishable. In the Hunt case, the employee was in the general employment of Hunt Tool Company, and was performing duties of the Hunt Tool Company at the time of the accident. He was under the control of Hunt Tool Company at the time of the accident, and the mere fact that the representative of Morris & Meredith suggested details of the work to be done did not create a relationship of master and servant between Guillory and Morris & Meredith.

The facts of the present case show that Bon Air Ranch and N. P. Martone were entirely separate businesses. Bon Air Ranch was in the business of raising cattle, while Martone was a rice farmer. Bon Air had no interest whatsoever in the harvesting of rice at the time of the accident. The rice was being harvested from lands of Farmers Land and Canal Company. Bon Air had nothing whatsoever to gain or lose from the harvest. The record shows, without contradiction, that both Holland and Humphreys knew when they were working for Bon Air, and they knew when they were working for Mr. Martone. The record shows that when they' worked for Martone, they would sometimes jokingly say “I guess I will be a farmer today.” The harvesting of the rice was under the exclusive jurisdiction and control of Mr. Martone as owner of the business and was solely for his benefit. He was supervising the operations at the time of the accident.

Mr. Martone, as owner, had the right to discharge his employees. He also had the right to discharge Holland and Humphreys from their duties in the field. We do not feel that they could be considered employees of Bon Air Ranch during the rice harvesting merely because Mr. Martone, who individually owned the rice crop was also the manager of Bon Air Ranch.

In Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 254, 53 L.Ed. 480, the Supreme Court of the United States said:

“It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are, for the time, his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still, in its doing, his own work; To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed,— a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is a part of a larger undertaking.”

The Standard Oil case was cited with approval in both the Hunt Tool case, supra, and in Spanja v. Thibodaux Boiler Works, Inc., La.App., 2 So.2d 668, 674. We feel that, under the doctrines as set forth in the Standard Oil Company case, and the test as used in the Hunt case, Holland and Humphreys were pro hac vice the servants of Mr. Martone insofar as the harvesting ■was concerned. Although Bon Air Ranch paid their wages during harvest operations, they were loaned to Mr. Martone who had complete control over them.

In the Spanja case, Spanja and another owned a boat which was rented as a standby boat to the Texas Co. He was assigned duties as standby for an oil rig located in marsh land near Empire, Louisiana. Repairs were needed to a steam boiler at the rig, and the Thibodaux Boiler Works sent machinery and a truck to do the repair work. Spanja was ordered to transport the truck with machinery from Empire to the rig. It was the job of the Thibodaux employees to load the truck and machinery on the boat furnished by the Texas Company. In loading the truck and machinery on the boat, Spanja, who was assisting in the loading operations, sustained serious injuries. Spanja sued the Thibodaux Company in tort. The court held Spanja to be a borrowed servant of the Thibodaux Company and dismissed the tort action. The holding of the Court was as follows:

“It could well have been said under such circumstances that, impliedly, his [Spanja’s] job with the Texas Company was to transport anything which might be necessary. But the transferring of the machinery was not his job and it was not the job of the Texas Company. It was the job of the Thi-bodaux Company and when, at the request of employees of that company, he undertook to assist them in their particular work, he became an employee of their employer, the Thibo-daux Company.”

We believe that the factual situation of the present case is even more favorable for application of the “Borrowed Servant Doctrine” than was the Spanja case. Of course, Mr. Martone’s insurer claims that Holland and Humphreys were employees of Bon Air, and, in the alternative, that they were joint employees of Bon Air and Mr. Martone. The only facts which could possibly tend to such conclusion were (1) Holland and Humphreys were paid by Bon Air and (2) Mr. Martone was General Manager of Bon Air, as well as owner of his rice farms.

We conclude that Holland and Humph-reys were borrowed servants of Mr. Mar-tone at the time of the accident. It follows that an employer-employee relationship existed between Mr. Martone, on one hand, and Holland and Humphreys, on the other hand, at the time of the accident, and for which Mr. Martone’s insurer is liable.

Although an appeal was lodged 'by Mrs. Emey Holland, on behalf of her minor son, Leslie James Holland, no brief has been filed on her behalf. The record discloses, however, that Leslie James Holland was a child of a prior marriage between Clifton Holland and Mrs. Emey Holland. Leslie was not living with his father, nor was he dependent upon his father, at the time of the accident. Clifton Holland very irregularly made gifts, or sent small sums of money, to Leslie. At most, Leslie could only be considered partially dependent upon his father.

LSA-R.S. 23:1232 provides that payments to a surviving widow and two or more children shall comprise the maximum sixty-five percent of wages allowed by the Compensation Act. It was shown that Holland’s widow, Mrs. Dula Marie Holland and her three minor children were entirely dependent upon Holland for support. Therefore, Leslie Holland, the partial dependent, falls within the scope of LSA-R.S. 23:1252 which provides that if there are sufficient wholly dependent persons to take up the maximum compensation, the death benefit shall be divided equally among them to the exclusion of the partial dependent.

We believe that Mrs. Holland is entitled to penalties and attorney fees as claimed under LSA-R.S. 22:658. There was no question but that petitioners were entitled to benefits under the compensation act. The only question was as to which insurance company, if not both, was liable. The two companies could have easily entered into an agreement to pay petitioners and then submit the controversy between themselves to arbitration. Or, either company could have offered half the amount due until the matter was settled. Instead, the companies arbitrarily let the widow and children suffer the hardships of a long and tedious legal proceeding which was merely a contest between the two insurance companies to fix liability on the other. It was necessary for petitioners to commence the proceeding to determine who was liable to them. We conclude that the refusal to pay benefits was arbitrary, capricious and without probable cause under the doctrine as set forth in Wright v. National Surety Corporation, 221 La. 486, 59 So.2d 695 and Fruge v. Pacific Employers Ins. Co., La.App., 71 So.2d 625, affirmed 226 La. 530, 76 So.2d 719.

For the reasons herein assigned, the judgment of the Lower Court is reversed, as it pertains against defendant American Casualty Company; and it is affirmed as it pertains against Marquette Casualty Company, but is amended so as to include penalties and attorney fees; and accordingly :

There is judgment herein in favor of petitioner, Mrs. Dula Marie Holland, and against defendant, Marquette Casualty Company, for compensation in the sum of $14.26 per week for a period not exceeding 300 weeks beginning September 27, 1955, with interest at 5% per annum on each past due installment from its due date until paid; and in favor of Daniel Gene Stanley, Judy Faye Sensat, and Paulette Gayle Sensat, and against defendant, Marquette Casualty Company, for compensation in the sum of $4.75 each per week for a period not exceeding 300 weeks commencing on September 27, 1955, with interest at the rate of 5% per annum on each past due installment from its due date; and

There is judgment herein in favor of petitioner, Mrs. Dula Marie Holland, and against Marquette Casualty Company, for burial expenses in the sum of $300,' with interest at the rate of 5% per annum from judicial demand until paid; and

There is judgment herein in favor of petitioner, Mrs. Dula Marie Holland, and against defendant, Marquette Casualty Company, for penalties in the amount of 12% on all weekly compensation payments which are now due, with like penalty on all such payments which might become sixty days overdue, together with attorney’s fees payable to the plaintiff in the sum of $500.-00. All costs are to be paid by the defendant Marquette Casualty Company.

Reversed in part; amended and affirmed in part.

TATE, Judge

(dissenting in part).

I concur with the excellently written and reasoned majority opinion that the judgment should be affirmed as against the special (or borrowing) employer, and that in view of its undoubted liability for compensation payments, penalties and attorneys’ fees should be assessed against it for arbitrary non-payment of compensation due. I am unable to agree, however, that the general or true employer should be relieved of its direct liability (solidary with that of the special employer) to its own employee for injuries sustained in the course of his employment.

Insofar as the disabled employee is concerned, no unfortunate results are sustained in the present case, since both general and special employer are financially responsible. But it is not difficult to foresee unfortunate and unjust results that can occur when the employee is directed by his financially responsible employer to report to work for a financially irresponsible “special” employer, in the course of which borrowed employment the disabling injury is sustained.

The general employer, to whom the disabled employee owes primary fealty and with whom the disabled employee entered into the employment contract partly in reliance upon the general employer’s financial ability to take care of him should he be hurt, is fortuitously relieved of compensation liability by the happenstance that on the day of the accident it had sent the disabled employee to do the work of another. To say that the employee “consented” to a change of employment, when he did not disobey his general employer’s commands and quit his job, seems to me to be unrealistic. (Cf. “But what seems on the surface to be such acceptance [by the employee of the transfer of employment] may actually be only a continued obedience of the general employer’s commands”. 1 Larson, Workmen’s Compensation Law 712, Section 48.10.)

The Louisiana cases do not require the unfortunate result reached herein. They do not indicate that the general employer is not liable to its disabled employee; they simply indicate that the special employer is so liable. I think the situation analogous to that provided by the compensation act (LSA-R.S. 23:1061), where not only the disabled employee’s general master, a subcontractor, is liable for workmen’s compensation benefits; but also the latter’s principal, who is receiving the direct benefit of the work performed, is secondarily liable.

Our compensation act provides that it shall apply “to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation”, LSA-R.S. 23:1035. The employer of the decedent was undoubtedly the Bon Air Ranch, which paid his wages. (It was responsible for his social security, liable to him for unpaid wages, etc; there was a direct contract of employment between it and the decedent.) The compensation act does not provide that the employer is not responsible when he has loaned his employee to another employer. The courts, however, have held the borrowing employer liable in compensation under the general theory that one whose work is being performed by another, occupies for compensation purposes a relationship of employer also to the person injured in his service.

I think the conclusion reached by the majority herein is prohibited by such cases as Dobson v. Standard Acc. Ins. Co., 228 La. 837, 84 So.2d 210. There, a truck driver employed by a wholesale distributor was injured while working at his employer’s residence upon orders of his employer. The Supreme Court, reversing the Second Circuit’s determination that the injury was noncompensable because not incurred in the employer’s business, stated: “Services ‘arise out of’ and are ‘incidental to’ an employment, whenever the employment calls for just such services.” Continuing, the high tribunal held that whenever the employer requests the employee to perform services, the employer cannot deny that such services arose out of the employment because, “Otherwise, by what right has the employee been called upon to perform them?” 84 So.2d 212.

The cases cited to us or relied upon by the majority are completely inapplicable to the present question. Such tort cases as Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137; Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852; Rooney v. Overseas Ry., 173 La. 183, 136 So. 486; Dixon v. Herrin Transportation Co., La.App. 2 Cir., 81 So.2d 159; Duke v. Dixie Bldg. Material Co., La.App.Orl., 23 So.2d 822, and Spanja v. Thibodaux Boiler Works, Inc., La.App.Orl., 2 So.2d 669 simply discuss whether or not an injured employee could recover in tort against defendants which raised the defense that since the injured employees were “borrowed employees” of said defendants, that therefore the latter were exclusively liable in workmen’s compensation. These cases are not authority for the proposition that the injured employee could not recover workmen’s compensation from his own employer from whom he drew wages (that is, his general employer.)

Tort cases such as the B & G Crane Service, Inc., v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369; Dixie Machine, Welding & Metal Works v. Boulet Transp. Co., La.App. 1 Cir., 38 So.2d 546; Hutto v. Arbour, La.App. 1 Cir., 4 So.2d 84, simply concern the liability, as between the general and special employer, for damages caused through the negligence of the borrowed employee, either to third persons or to property of one of the parties. They are not relevant to the present discussion.

While cases may be found sustaining compensation recovery against the special employer, see Sadler v. May Bros., Inc., La.App. 1 Cir., 185 So. 81, 82, in every case I could find among those cited in Professor Malone’s authoritative treatise, Louisiana Workmen’s Compensation, or in brief of counsel, in which the general employer sought to escape compensation liability on the ground that the disabled employee was a borrowed servant of another, the special employer therefore alone being responsible; recovery against the general employer was upheld, on one ground or another: See Speed v. Page, La.App. 2 Cir., 59 So.2d 138, affirmed without discussion of this point 222 La. 529, 62 So.2d 824, 825; McEachern v. Pine Wood Lbr. Co., Ltd., 2 Cir., 5 La.App. 665; Cf. also Thiels v. Younger Motor Truck Co., La.App. 2 Cir., 178 So. 712, certiorari denied and Robinson v. Younse Lbr. Co., 2 Cir., 8 La.App. 160.

As indicated by the extensive supplementing annotations entitled “Workmen’s compensation: liability of general or special employer for compensation to injured employee” found at 152 A.L.R. 816, 58 A.L.R. 1467, 34 A.L.R. 768, and 3 A.L.R. 1181, varied approaches to this problem are found in the other American jurisdictions. Some jurisdictions provide that the injured employee may recover at his option either against his general employer or against the special employer to whom he was lent, or against both; others that he may recover against the general employer, with the latter’s right of reimbursement from the special employer; others that he may recover only against the general employer or only against the special employer.

But authorities from other States must be read in the context of their statutory setting. Louisiana alone of the American jurisdictions does not require that the employer secure his employees against compensation liability to them by insurance or otherwise; in the absence of which, it is usually provided that the disabled employee may elect either the compensation remedy or the old common-law remedy (with, in the latter case, the employer deprived of the customary common law defenses of assumption of the risk, the fellow-servant doctrine, and contributory negligence.) 2 Larson, Workmen’s Compensation Law, 148 et seq. (Section 67.20 et seq.), 443 (Section 92.10, especially footnote 1); see also Appendix I thereto, Table 7 (2 Larson 522.)

Thus, since compensation suits in these other jurisdictions customarily are against financially responsible defendants, basically the problem involved is which of the two employers involved shall be ultimately responsible for the injury concerned, with consequent effect upon the employer’s experience rating for insurance premiums upon the risks involved. Due to this provision common to all States except Louisiana, in no State except Louisiana would such a precedent as we here seek to establish result in the real risk that an injured employee, deprived by such a doctrine of his remedy against his own (the general) employer, be relegated to a remedy against a financially irresponsible so-called “special employer” with whom the disabled employee had no employment agreement except such as may be fictitiously assigned by application of the “borrowed employee” doctrine. Cf. 58 Am.Jur. 812, “Workmen’s Compensation”, Section 343.

The question is not before us as to which (if either) of the two employers, as between themselves, should be solely responsible. While the insurer of the special or borrowing employer, Martone, filed a third-party petition calling the insurer of the general employer (Bon Air Ranch) in warranty, the dismissal of this petition as erroneous was not urged upon appeal and is presumed abandoned. The general employer did not file any third party petition calling the special employer or his insurer in warranty.

As a general proposition, there may be much to support the proposition that the special employer — in the risks of whose business the employee was accidentally hurt — should be ultimately responsible as between the two employers; or the contrary proposition that the responsibility should be borne by the general employer in whose actual employment the injured .employee sustained the accident, as is an independent contractor vis a vis the principal, LSA-R.S. 23:1061. In the facts of this particular case, there is also much to justify the proposition expressed, in a discussion of the vicarious liability of the employer as to others, at 57 C.J.S. Master and Servant § 566, p. 290:

“Lender and borrower both liable. Under some circumstances both the lender and the borrower may have control over the servant so as to render each of them liable for his conduct, for he may have been transferred to carry on work which is of mutual interest to them and to effect their common purpose, so that his service to the one does not involve abandonment of his service to the other.”

But this question not being before us, I see no need to express any opinion as to which of these legal rules should be applicable under the facts of the present case.

For the above and foregoing reasons, I respectfully dissent from the majority opinion insofar as it reversed the District Court’s holding the general employer’s compensation insurer solidarily liable with the insurer of the special employer.

Application for Rehearing.

TATE, Judge

(dissenting from refusal to grant rehearing).

I adhere to the views expressed in my original dissent.

With regard to the majority’s reversal of the District Court’s holding that the insurers of both general and special employer were solidarily liable to the dependents of the workman killed in the course of his employment, I find to be extremely pertinent the observation found in a comment entitled “Workmen’s Compensation: Liability of General and Special Employer”, 26 Calif.L.Rev. 370 at 374-5:

“In at least three jurisdictions, California, New York, and Kentucky, the employee may look for compensation to either the special or general employer, or to both jointly and severally. This is permitted on the following grounds: The burden of compensating an employee for injuries sustained in the course of his employment is a statutory imposition on an industry of responsibility for industrial injuries, and this burden is to be distinguished from the respondeat superior burden imposed by the common law. The latter burden is involved with the question of imputed fault. It properly, therefore, requires proof not only that there is an employer-employee relationship, but also that the negligence complained of is related to specific acts under the control of the employer at the very moment of the accident. Failing this, the negligence may not be imputed to the employer. Workmen’s compensation liability on the other hand is not related to ‘fault’ or responsible negligence but to the fact of industrial injury without question of fault; it is a liability imposed upon the employer qua employer. Since the law recognizes that an employee may at the same time have a special and general employer, it follows that both employers have the statutory liability for industrial injuries suffered by their common employees.”

For these reasons, I respectfully dissent from the refusal of my brethren to grant a rehearing, in order to reinstate the opinion of the District Court insofar as it held both defendants liable in solido, at least as to the dependents of the deceased employee.

      . Which case also sustained dismissing a call in warranty by the special employer against the general employer (that is, insofar as the liability between the two employers themselves was concerned) on the ground that the general employer was not “an independent contractor” but a “lessor”.


source: Caselaw Access Project

author: O’CONNELL, Justice.

license: Public Domain

text:
    Howard BETZ, Appellant, v. BANK OF MIAMI BEACH, a banking corporation existing under the laws of the State of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    June 12, 1957.
    Tobias Simon, Miami, for appellant.
    Seymour B. Liebman, Miami Beach, for appellee.
   O’CONNELL, Justice.

Appellant, Howard Betz, was one of the defendants in the court below. The Bank was the owner of two promissory notes which evidenced loans made by it. The notes where not paid on maturity and the Bank sued Corvette of Miami, Inc., Hal Kaye and Howard Betz. Summary judgment was entered in favor of the Bank and Betz, one of the defendants against whom such judgment was entered, has brought this appeal.

The notes sued upon were executed on forms provided by the Bank. Each contained the words “ * * * the undersigned jointly and severally promise to pay to the Bank of Miami Beach * * Each had the words “Corvette of Miami, Inc.” typed above the lines provided for signatures. Under the corporate name appear the signatures of Hal Kaye and Howard Betz. More graphically the notes were executed as follows:

“Corvette of Miami, Inc.
“Hal Kaye (Seal)
“Howard Betz (Seal)”

No preposition preceded the signatures of Kaye and Betz and no words followed to indicate that either Kaye and Betz signed the notes other than in their individual capacities. It is clear therefore that the only indication on the notes that Betz signed in a representative capacity rather than as an individual maker is the name “Corvette of Miami, Inc.” typed above the signatures of Kaye and Betz.

Betz and the corporation filed an answer to plaintiff’s complaint in which they,admitted that the corporation, Corvette of Miami, Inc., had executed the notes, but denied .that Betz had made, executed or delivered the notes as an individual.

Both the Bank and Betz moved for summary judgment and filed affidavits in support thereof. From these affidavits it appears that Hal Kaye was president and Betz was secretary-treasurer of the above-named corporation.

Betz raises two questions on appeal. They are:

(1) Does the form of the note impose the liability thereof upon any person other than the corporation, as a matter of law ?
(2) May parol evidence be introduced to prove the intent of the parties as to whether liability extends to the signer of the notes as individuals?

We are of the opinion that the notes as a matter of law impose liability as a maker on Betz. This makes it unnecessary for us t.o answer the second question posed by appellant, Betz, for his second question presupposes that the notes are ambiguous as to the liability of Betz. We do not find such to be the case.

At the outset we should make it clear that neither Kaye nor the corporation are parties to this appeal and we are not concerned with their liabilities under the notes in question.

It is not disputed that Betz signed and intended to sign the note as maker. The dispute is that Betz contends that he intended to sign as maker only in his representative capacity as secretary-treasurer of the corporation. The Bank contends that he signed and that it was intended that he sign as maker, individually.

Florida has adopted the Uniform Negotiable Instruments Law, Chapter 674, F.S.1955, F.S.A. There can be little question that the prime intention of the draftsmen of this law was to clear up confusion in, and to fix with certainty the rights and liabilities of holders, makers and endorsers of negotiable instruments. It seems quite reasonable that such was the intention of our legislature in enacting the law.

There are two sections of Chapter 674, supra, which we must consider.

At first glance Sec. 674.19(6) of the Act might appear to control and answer appellant’s first question. Appellee Bank argues that it does. That section reads:

“(6) Where a signature is so. placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is deemed to be an indorser.”

However, the apparent weight of authority and what seems to us to be the better rule is that the above quoted section is not applicable to a situation such as now before us where the question is not whether one intended to sign as endorser or maker, but whether one intended to sign as maker for himself, or maker for another, by acting in a representative capacity.

In a case somewhat similar to the one before us the court said:

“ * * * in the present case there * * * is not a doubt whether he intended to sign as maker, indorser or guarantor, for it is clear from the location of the name he did not intend to sign as indorser or guarantor, but simply a doubt whether he intended to sign in an individual or in a representative capacity as maker. * * * The statute was passed to meet a case where it is doubtful from the instrument whether a man intended to become an indorser, not to make an in-dorser out of a person who, without doubt, intended to sign as maker, either individually or as representative of another.” Germania Nat. Bank of Milwaukee v. Mariner, 1906, 129 Wis. 544, 109 N.W. 574, 575.

The Wisconsin court in the last mentioned case ruled that this section was intended to settle doubt fairly arising from location of the name of a person, as where the signature is placed at the side, on the end or across the face of the instrument thus creating a doubt as to whether the signer intended to be bound as maker or as endorser. See also the cases collected in 35 A.L.R.2d 1034.

We are of the opinion that Sec. 674.19 (6), supra, is not applicable to this case.

We next must consider Sec. 674.22, F.S.1955, F.S.A. This section provides that:

“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal does not exempt him from personal liability.”

We find only one case in which this Court has construed the effect of the above quoted section. It is not factually in point with this case for there the maker of the note and mortgage involved signed his name followed by the words, “as trustee only and not individually”, but neglected to disclose his principal anywhere in the documents. Spofford v. Hanna, 1931, 102 Fla. 261, 135 So. 536, 538.

Nevertheless, in the Spofford case, this Court did adopt the view expressed by the Oregon court in Guthrie v. Imbrie, 1885, 12 Or. 182, 6 P. 664, 672 as follows:

“It is well settled that whether a principal, or his agent, is the party liable upon a promissory note or bill of exchange, must be ascertained from the instrument itself. All evidence dehors the instrument is to be excluded. Barlow v. Congregational Soc., 8 Allen [Mass.] 460; Brown v. Parker, 7 Allen [Mass.] 337; Slawson v. Loring, 5 Allen [Mass.] 340, [81 Ann.Dec. 750]; Rendell v. Harriman, 75 Me. 497 ‘If it is left ambiguous on the face of the instrument whether they have so signed it, the construction most against the person signing should prevail.’ ”

Appellee, the Bank contends that this last statement in the Spofford case is controlling. However, the question involved in this case is an important one and is of first impression in Florida. We therefore feel we should pursue the matter further.

In the case of Lazarov v. Klyce, 1953, 195 Tenn. 27, 255 S.W.2d 11, a note had thereon the signature of a corporation by A, and also the signature of B without indication that he had signed in a representative capacity. B contended that the note was ambiguous as to him and that he had intended to sign only in his representative capacity as an officer of the corporation. The- court held that he had signed as maker and was bound as such. The court held there was no ambiguity and refused to allow B to introduce parol evidence.

In Toon v. McCaw, 1913, 74 Wash. 335, 133 P. 469, L.R.A.1915A, 590, a note was signed with the name of Aberdeen Tug Boat Co. followed by the names of three individuals which names were not preceded by prepositions or followed by titles. The three contended they had signed only in their representative capacity. The court held, the note not to be ambiguous as to them, refused to allow parol evidence to show that they signed only in a representative capacity, and held them liable as makers.

In Murphy v. Reimann Furniture Mfg. Co., 1948, 183 Or. 474, 193 P.2d 1000, 1002 we find an identical factual situation. The note provided “we promise to pay”. Two individuals signed below the name of a corporation without indicating that they did so in a representative capacity. There was no such indication in the body of the note. The court held there was no ambiguity in the note as to the liability of the two individuals, refused to allow them to introduce parol evidence to show they intended to sign only in their representative capacity, and held them personally liable as makers.

In Coal River Collieries v. Eureka Coal and Wood Company, 1926, 144 Va. 263, 132 S.E. 337, 338, 46 A.L.R. 485, a note was signed

“Eureka Coal & Wood Co., Inc. “J. Liebman, Treasurer., N. Orleans.”

It appears that N. Orleans was president of the corporation under which name he signed and that he had intended to sign only in such capacity. The court held there was no ambiguity, allowed no parol evidence and held Orleans personally liable as a maker. It remarked that Orleans had signed exactly as he would have signed had he intended to bind himself individually, and that the parol evidence was offered first, to create an ambiguity where none existed, and then to remove it.

See also the cases cited in 42 A.L.R. 1075, 1080.

We construe Sec. 674.22, supra, to provide a means by which one who signs a negotiable instrument for or on behalf of a principal, as maker, may escape personal liability thereon by following the provisions of the section. It seems clear to us therefore that where the body of the instrument or the person signing does not indicate that the maker is signing in a representative capacity, it is the intention of the statute that he be bound individually.

In the notes before us there is nothing other than the name of the corporation, typed above the signatures of Kaye and Betz to indicate that the payee and makers of the notes considered the instrument not to be binding on Betz as an individual maker. Betz signed exactly as he would have if it had been his intention to bind himself individually. His signature as written makes him personally liable as maker.

Not having availed himself of the opportunity, expressed in Sec. 674.22, supra, to escape personal liability we feel it clear that he is bound individually as a maker, that there is no ambiguity in the notes as to Betz and therefore it is unnecessary to consider whether parol evidence should be admitted to allow him to show his liability to be contrary to what it appears to be from the face of the notes as they were actually signed, as they were delivered to the Bank and as they were sued on.

The result of this decision may be considered to be harsh. Yet in view of the importance of negotiable instruments in business, banking and finance, the need for certainty and stability in the meaning of what appears on the face of such instruments and in view of what we believe the intention and meaning of the pertinent sections of the Negotiable Instruments Law to be we believe the rule we have adopted to be the better view. We believe this rule will cause less harm to commerce and result in less litigation than if we adopted' the opposite view.

While it cannot assist Betz in his dilemma, it would appear to us that one who claims his signature on a negotiable instrument was intended by the parties to have been placed thereon in a different capacity with different liability to the signer than as appears from the instrument should seek to have the instrument reformed to show that which he contends it was intended to show. Valentine v. Hayes, 1931, 102 Fla. 157, 135 So. 538.

In accordance with our views above expressed the judgment is affirmed.

TERRELL, C. J., and THOMAS, HOB-SON, DREW and THORNAL, JJ., concur.

ROBERTS, J., not participating.


author: TERRELL, Chief Justice.

text:
    Chester COLEMAN, Petitioner, v. BURNUP and SIMS, Inc., Standard Accident Insurance Company, and Florida Industrial Commission, Respondents.
    Supreme Court of Florida, Division B.
    June 12, 1957.

      Heaton & Dye, Tallahassee, for petitioner.
    Earnest, Smith, Jones, Paine & Foster and James C. Paine, West Palm Beach, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   TERRELL, Chief Justice.

Coleman, the claimant, was injured while in the employment of respondent, Burnup and Sims, Inc. His injury occurred two and one-half weeks after he was employed, making recovery depend on Section 440.14 (2), Florida Statutes, F.S.A. as follows:

“If the injured employee shall not have worked in such employment during substantially the whole of thirteen weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such thirteen weeks shall be used in making the determination under the preceding paragraph.”

The point for determination is whether or not under the facts related there is competent substantial evidence to sustain the finding of the Deputy Commissioner as to the average weekly wage used as a basis for the computation of compensation for the claimant.

Rule 15(a) of the Florida Industrial Commission, upheld in Wilkes & Pittman v. Pittman, Fla. 1957, 92 So.2d 822, defines the pertinent portions of the statute [F.S. § 440.14(2), F.S.A.] quoted above and is as follows:

"15(a) The phrase, ‘substantially the whole of thirteen weeks,’ as used in Section 440.14(1), Florida Statutes, shall be deemed to mean and refer to a constructive period of thirteen weeks as a whole, i. e., a consecutive period of ninety-one days, and ‘during substantially the whole of thirteen weeks’ shall be deemed to mean not less than 90 per cent of the total customary full-time hours of employment within such period considered as a whole.” (Emphasis supplied).

Pursuant to the quoted statute the Deputy Commissioner adopted the wage scale of one Homer Mosely as a yardstick, thus finding him [Mosely] to be a “similar employee” and in so doing awarded the claimant a weekly wage of $41.58.

Claimant contends there is no competent substantial evidence that Mosely was a “similar employee” because his [Mosely’s] address was Route 2, Gaines-ville, Florida, while claimant was working in West Palm Beach during the two and one-half weeks of his employment. Claimant also insists that if correctly used, Mosely’s average weekly wage would equal $48 per week if properly computed under Rule 15(a) supra. This contention is based on the assumption that only those weeks should be included during which Mosely worked 90% or more of the total customary full time hours. The rule provides that “during ‘substantially the whole of thirteen weeks’ shall be deemed to mean not less than 90% of the total customary full time hours of employment within such period considered as a whole.” It would accordingly seem obvious that no one week may be isolated for the purpose of determining whether it conforms to the 90% test, so the percentage computation must be applied to the entire 13 week period.

What then could be the purpose of the test for determining the claimant’s average weekly wage under the provisions of the quoted statute considered in connection with the quoted rule? It is apparent that the only purpose of so doing is to determine as nearly as possible the amount of average wages the claimant would have earned if he had not been injured but had continued in his employment. The quoted statute and rule were promulgated for this purpose The record discloses testimony on such matters as time lost account of voluntary absence, sickness in family et cetera by employees doing the same work as claimant. The cause of lost time is meaningless when absence of a “similar employee” is applied to a claimant. The claimant may have been a faithful worker eager to earn as much as possible, he and his family may be healthy, while the “similar employee” may like to fish instead of work, and there may be sickness in the family necessitating his absence. To compensate for such deficiencies among employees the Commission required that the “similar employee” must have worked not less than 90% of the total customary full time hours within the thirteen weeks period.

It follows that the proper test to guide one would be to take a “similar” employee who does the same type of work, and one who is working in the same locality, and if possible one who worked in the same crew. In a statewide operation such as here, the employer with a crew working in Orlando may have a 13 week period of clear weather in which each man may work the full customary work hours, while in West Palm Beach rain might reduce the working hours in the same period to one-half or one-third of that available to the crew in Orlando. In such case a willing employee in West Palm Beach could work only one-half or one-third as much time as one in Orlando. Should claimant’s wages be computed on the basis of the Orlando workman? The Deputy Commissioner who heard the testimony gave the following answer:

“If you had brought in a statement at least of the various men employed in the same crew with the claimant, in the same locality, for as long as possibly up to 13 weeks before his injury, then you would have a complete statement of the whole picture, and there wouldn’t be any question about it.” [R. 41]

The record and briefs have been carefully reviewed. It is true, as asserted by respondents, that it is not shown where Mosely worked, or that he worked under substantially different conditions than claimant. It is also true that his address was Route 2, Gainesville, Florida, and that respondents did not show that he worked in the same locale as claimant under substantially the same conditions. Mosely did not testify. The office manager of the employer positively testified that Mosely was not from the same group or a comparable group as claimant. [R. 19]

This reasoning presents the following: What were the total customary full time hours for the 13 week period prescribed by the statute? The order of the Deputy Commissioner recites that payroll records of various employees who worked in similar employment for the same company during substantially the whole of 13 weeks preceding claimant’s injury had been submitted for consideration and “from a review of the evidence * * * the wages of one Homer Mosely, averaging $41.58 per week, fairly represent the wages of an employee who worked during such thirteen week period prior to the claimant’s injury * * it concludes that these wages should be used in computing claimant’s compensation. Nowhere is there any finding of fact as to what constituted the “total customary full time hours of employment within the period considered as a whole.” Absent such finding it is impossible to apply the 90% test to determine whether Mosely’s wage scale is a proper yardstick under Section 440.14(2) and Rule 15 supra. It is to be noted that the Full Commission stated in its order of affirmance that there is testimony that a normal work week was 40 hours. The Deputy made no finding as to the “normal work week.” In stating the question presented, respondent speaks of a work week of 9 hours a day, S days a -week.

In Fischer v. John W. Thomson & Son, Inc., Fla.1957, 92 So.2d 526, 527, we said:

“Because of the weight given to the conclusions of a deputy commissioner in any review of a compensation order it is of prime importance that the order contain the findings of fact upon which the conclusion is based. The reviewing authority is then in a position to measure the findings of fact by the presence or absence of competent substantial evidence in the record. Without adequate findings it is impossible for the reviewing authority to determine the factual basis upon which the deputy arrived at his conclusion.”

See also Andrews v. Strecker Body Builders, Inc., Fla.1957, 92 So.2d 521, and Hardy v. City of Tarpon Springs, Fla.1955, 81 So.2d 503.

In the Wilkes case supra, this court approved the order of the Full Commission holding that the record of a fellow workman who fell short of the 90% test was not acceptable as a measure by which claimant’s compensation would be measured. We also pointed out that flexibility as to job in question was preserved by work measured at 90% of the “total customary full-time hours.” [92 So.2d 824.]

We express no opinion as to what the customary full time hours were. This is a factual determination to be made by the Deputy Commissioner. His order of July 27, 1956, is lacking in findings of fact to support his conclusion and neither the Full Commission nor this court can properly determine whether it is supported by competent substantial evidence under the rule of U. S. Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741.

We think the petition for certiorari should be granted, that the order of the Full Commission should be quashed and the cause remanded to the Deputy Commissioner for further consideration of the weekly wage of claimant consistent with this opinion. It is so ordered.

Petitioner’s counsel is awarded attorney’s fee in the sum of $250.

HOBSON, DREW and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    Mary M. DE WITT and Raymond DeWitt, her husband, Appellants, v. MIAMI TRANSIT COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    June 12, 1957.

      Britton, Hodges & Hyman, Miami, for appellants.
    Blackwell, Walker & Gray, Miami, for appellee.
   THORNAL, Justice.

Appellants DeWitt, who were plaintiffs below, seek reversal of a summary final judgment entered in favor of the appellee Transit Company, defendant below, in a personal injury negligence case.

The determining point is the correctness of the ruling of the trial judge as to the effectiveness of a release as against the contention of the appellants that the release was executed under a mistake of fact.

Appellants allege that on December 3, 1951, the appellant Mary DeWitt, while a passenger on a bus of the appellee Transit Company, was injured as a result of the negligent operation of the bus. Mrs. De-Witt consulted her personal physician who after examination advised her that it was his opinion that nothing serious had resulted. On December 9, 1951, in consideration of the payment of $90, the two appellants executed a general release to the ap-pellee Transit Company. Admittedly the $90 were paid in order to liquidate medical expenses on the assumption that the injuries were minor.

Mrs. DeWitt continued suffering until in March, 1952, her physician recommended that she consult an orthopedic specialist. On the recommendation of the Transit Company’s adjuster, she did consult a specialist. On March 21, 1952, after an obviously thorough examination and based on subjective symptoms as well as x-rays of the lumbar spine, the orthopedist detected a “mild left lumbar scoliosis minimal spurring on the anterior margin of the body of the fifth lumbar vertebrae” and concluded that Mrs. DeWitt had “incurred muscular and ligamentous strains with perhaps some minor tearing in her lower back.” He fitted her with a lumbar corset type support and recommended physical therapy to neck and back muscles. It was the doctor’s conclusion that Mrs. DeWitt may have a “minimal amount of permanent aggravation” as a result of the injury. On the basis of this report, Mrs. DeWitt again approached the defendant for further assistance. Through its adjuster the defendant sent to the De-Witts another release with an additional check for $175. After signing the release, however, the plaintiffs telephoned the adjuster and requested that it be destroyed as the amount offered was not sufficient. Thereafter on July 11, 1952, the adjuster, for the appellee, paid to the appellants the sum of $250 and obtained from them another general release.

The language of the release was typical of documents usually exchanged in such situations. Among other things it released the appellee from “any and all known and unknown personal injuries” “resulting or to result from accident that occurred on or about the 3rd day of December, 1951.” In the Spring of 1953 Mrs. DeWitt was advised by the orthopedic specialist that a hip operation was indicated, it being then the view of the doctor that a congenital hip condition had probably been aggravated by the bus accident. Sometime in August of 1953, while apparently preparing for the hip operation, Mrs. DeWitt was given a myelogram examination and in the opinion of the doctor then this examination revealed the existence of a herniated disc in the fourth lumbar interspace. Corrective surgery- ensued.

Upon release from the hospital, Mrs. DeWitt communicated again with the ap-pellee's adjuster and requested additional funds to assist with her hospital expenses. In one letter dated April 20, 1953, Mrs. DeWitt stated, “I know we have no claim against you and even if we hadn’t signed the agreement, I still wouldn’t want to sue anyone.” In response to these subsequent demands the Transit Company took the position that it had been released from all liability in 'the premises.

Mrs. DeWitt and her husband then instituted this suit. The Transit Company pleaded the general release of July 11, 1952. On a motion for a summary judgment by the appellee, the release was produced in court. To offset the effect of the release, the appellants by deposition and affidavits undertook to establish that the' release had been executed under a' mistake of fact, it being their position that they were mistaken as to the extent of the injury when the release was signed. Further to support their position they submitted the affidavit of the orthopedic specialist to the effect that when he examined Mrs. DeWitt in March of 1952 there was no evidence of a herniated intervertebral disc. The affidavit further stated that the doctor did not advise anyone with reference to the existence of a herniated disc until August of 1953, for the reason that he himself “was not convinced that such was the case until that time.” The doctor’s affidavit further expressed the opinion that the accident sustained on December 3, 1951, and the sustained back injury at that time “is the proximate cause for the herniating interverte-bral disc.”

The trial judge was of the view that the general release was valid and binding and pursuant to this view he entered a summary judgment for the appellee Transit Company. Reversal of this judgment is now sought.

The appellants contend that the release was executed under a mistake of fact, the mistake being that they thought Mrs. De-Witt had suffered minor injuries whereas her injuries were much more severe than suspected. They rely on the rule that a release executed under a mistake as to a past or present fact is not effective and should be set aside.

The appellee, of course, contends that there was no mistake; that Mrs. DeWitt knew of the general nature of her injuries; and that the occurrence of unexpected consequences would not justify setting the release aside.

Appellants rely for reversal on our opinion in Boole v. Florida Power & Light Co., 147 Fla. 589, 3 So.2d 335. In that case a man afflicted with a cardiac ailment suffered a chest injury. His doctor was of the opinion that he had a minor contusion of the chest wall. Nine days after the accident Boole executed a release in consideration of payment of medical expenses totaling $15. Sixteen days later the man died as a result of an aggravation- of his heart condition produced by the injury. A sharply divided court held that there was sufficient evidence of a mutual mistake as to an existing fact to justify submission of the matter to a jury.

Although at a glance the cited case may appear to be controlling, we think there is a distinction. There the mistake was as to the injury itself. The parties thought there was a minor chest contusion, whereas in actuality there was heart damage. In the case before us there was no mistake as to the injury, itself. The mistake, if any, here was as to the ultimate consequences of the injury. The opinion of the orthopedist is clear that there was no evidence of a herniated disc at the outset. Although the doctor may have suspected something of this nature, he “was not convinced” of it, according to his affidavit, until August, 1953, a full thirteen months after the release was executed. Here Mrs. De-Witt and her doctors were fully informed by x-rays and otherwise that she had suffered an injury to the lower back. They merely failed to evaluate accurately at the time of the examination the ultimate product of the injury she had received.

While a release executed pursuant to a mistake as to a past or present fact may on proper showing be set aside, unknown or unexpected consequences of known injuries will not result in invalidating the release. An erroneous opinion or error of judgment respecting future conditions.as a result of presently known facts will not justify setting the release aside. If the rule were otherwise no release could be safely accepted in personal injury matters. The end result would be that all such claims would be forced into litigation. Such a conclusion would be directly contrary to the policy of the law favoring amicable settlement of disputes and the avoidance of litigation.

The decisions of other states on this subject are legion. Extensive reference to them, would unduly prolong this .opinion. Illustrative references are: Spangler v. Kartzmark, 121 N.J.Eq. 64, 187 A. 770; Simpson v. Omaha & C. B. St. R. Co., 107 Neb. 779, 186 N.W. 1001; Annotations in 48 A.L.R. 1462, and 117 A.L.R. 1022.

Appellants further contend that the conduct of the appellee in making further payments after the first release led them to the conclusion that the release of July 11, 1952, was not final but merely in the nature of a receipt for the medical expenses. There are no allegations of fraud or over-reaching. Mrs. DeWitt herself, by her letter to appellee’s adjuster following her operation, clearly establishes that she understood that the document was intended as a complete release rather than a mere receipt.

We confess that the situation portrayed by appellants inspires our sympathies. However, we have no power to adjudicate the rights of litigants on, emotional bases. The law requires that the judgment be and it is hereby

Affirmed.

TERRELL, C. J., ROBERTS, J., and LOPEZ, Associate Justice, concur.


author: PER CURIAM.

text:
    James Carson RAMSEY, Jr., Appellant, v. Phyllis H. RAMSEY, Appellee.
    Supreme Court of Florida, Special Division B.
    June 12, 1957.
    Bernard Martin and Herman T. Isis, Miami, for appellant.
    Kimbrell & Braswell, Miami, for appel-lee.
   PER CURIAM.

Affirmed. See deMarigny v. deMarigny, Fla., 43 So.2d 442, 446 and cases cited therein.

TERRELL, C. J., HOBSON and O’CONNELL, JJ., and SANDLER, Associate Justice, concur.


author: ROBERTS, Justice. DREW, Chief Justice ROBERTS, Justice.

text:
    The STATE of Florida, by and through Richard W. ERVIN, as Attorney General of the State of Florida, et al., Appellants, v. The MASSACHUSETTS COMPANY, a joint venture composed of Southern Scrap Material Company, Ltd., a corporation, N. D. Friedman Company, a corporation; and Eastern Scrap and Salvage Company, a corporation, Appellees.
    Supreme Court of Florida. En Bane.
    Nov. 16, 1956.
    On Rehearing June 12, 1957.
    Richard W. Ervin, Atty. Gen., Ralph M. McLane and John D. Moriarty, Asst. Attys. Gen., for appellants.
    R. H. Merritt and Joe J. Harrell, Pensacola, for appellees.
    J. B. Hopkins, Pensacola, for intervenors.
   ROBERTS, Justice.

This controversy had its inception in activities of the appellee, the Massachusetts Company, looking toward the “salvage” of the old battleship Massachusetts, which lies sunken in the Gulf of Mexico off the coast of Escambia County in the territorial waters of the State of Florida. The State of Florida, by its Attorney General, filed the instant suit to enjoin the Company from proceeding with such activities. The Chancellor, on the basis of the pleadings and evidence adduced before him, found that the State had failed to establish a right to the injunctive relief sought and entered a decree in favor of the Company. The State has appealed.

The facts, as found by the Chancellor in his decree, are as follows:

“The United States battleship Massachusetts, after first being used for coast artillery target practice, was scuttled and sunk in the Gulf of Mexico, approximately 1.2 miles off the entrance to Pensacola Bay, Escambia County, Florida, in the year 1922. It has remained there ever since, largely undisturbed except by action of wind and water, which have gradually caused it to sink deeper and deeper into the sand bottom. A portion of the gun turrets is still visible above the surface of the water. The sunken battleship is in such condition that it could not be restored to use as a vessel. It is, however, a haven for small marine life and therefore attracts larger fish that feed upon such organisms. This, in turn, has made the site where the vessel lies a favorite fishing spot, so that it has over the years attracted and still does attract large numbers of anglers from the local community and from distant places. During the past few years, at least, relatively small parts of the ship’s brass and fittings have from time to time been removed by individuals not parties to this suit.
“There have been efforts to organize the salvage of the sunken ship at times in the past, but all proved abortive until the venture in which the defendant is now engaged. In the month of August, 1956, the defendant, after preparations extending over the last year or two and involving the outlay of several thousand dollars in expense, secured a navigational permit from the United States Corps of Engineers and commenced salvaging the battleship. Incident to the beginning of the work, the defendant took possession of the ship by marking it with buoys and lines. Within a few days thereafter this suit was filed and, after notice and hearing, the temporary injunction issued.
“The evidence at final hearing shows that the former owner of the battleship, the United States, has left it undisturbed for many years, and the court finds that it was abandoned many years before this suit was begun. A telegram from the Secretary of the Navy, admitted in evidence, announces such abandonment, although it does not state the date of abandonment.
“Upon the basis of the evidence, the court finds and will treat the Mcwra-chusetts as an abandoned, sunken wreck of a ship lying in navigable waters of the Gulf of Mexico within the territorial limits of the State of Florida, subject to the laws of the State of Florida and the jurisdiction of this court, and in the possession of the defendant.”

To these findings of fact made by the Chancellor, it might be added that the record shows that the wreck of the vessel is not a navigational hazard and that, in addition to being a favorite fishing spot, it is a navigation aid for small boats. It has not sunk any deeper into the sand for the last six or seven years, the last appreciable sinking having followed a hurricane in 1948. It might also be noted that the Chancellor’s finding that the Company “took possession of the ship by marking it with buoys and lines” is a conclusion of at least doubtful authenticity. Cf. Eads v. Brazelton, 1861, 22 Ark. 499, 79 Am.Dec. 88; Deklyri v. Davis, 1824, 1 Hopk.Ch. 135, 2 N.Y.Ch. 369. But the point is not raised here, and it will he assumed for the purpose of this appeal that the Company had “possession” of the wreck sufficient to exclude other persons of the same class from interfering with the property.

The issue here is whether the State, in its sovereign capacity, has .a possessory right or title to the wreck that cannot lawfully be interfered with by the Company. The State contends, in substance, that under Sec. 2.01, Fla.Stat. 1955, F.S.A., Act of Nov. 6, 1829, the “common and statute laws of England which are of a general and not a local nature, * * * down to the fourth day of July, 1776, are declared to be of force in this state,” unless inconsistent with the constitution and laws of the United States and the acts of the legislature of this state; that under the common law and statutes of England as they e'xisted in 1776, wrecked and derelict property upon the sea belonged to the Crown unless claimed by an owner within a year and a day; that the state, in its sovereign capacity, succeeded to this prerogative right of the sovereign of England, when it adopted the common law; that no statute inconsistent with such prerogative right has been adopted in this state; but that, on the contrary, statutes have been enacted that are in accord with and in recognition of the common law. The State also contends that the water bottom in question is designated “state land” by Section 253.03, Fla.Stat. 1955, F.S.A., and that the Company’s activities violate Sections 821.19 and 821.20, Fla.Stat. 1955, F.S.A., prohibiting and defining “trespass” upon state lands. Other contentions not necessary to relate here are also made.

The Company contends that the wrecked vessel is not within the purview of the common law nor the statutes relied upon by the State as conferring upon the sovereign the prerogative right to wreck, and states in its brief that the case “turns on the law governing the rights of persons with respect to abandoned personal property.” Most of its argument is directed to the latter point.

The Chancellor sustained the position of the Company as to the meaning of “wreck” and held that neither the common law, nor the statutes of England here relied upon, 3 Edward I, Ch. 4, and 17 Edward II, Ch. 11, relating to “wreck of the sea,” nor the law of Florida, Sections 705.01-03, Fla.Stat. 1955, F.S.A. relating to “wrecked derelict goods,” vested in the sovereign any right to the wreck in question. His holding in these respects was based on the fact that “wreck of the sea,” within the meaning of the English statutes cited above, must be “goods cast upon the land or shore”, Hale’s De Jure Maris, p. 37; and his opinion that Section 705.01 et seq., supra, was in apparent conflict with Section 715.01, Fla.Stat.1955, F.S.A., vesting in the finder the title to personal property found in public places, so that the latter being the last enacted in point of time, would prevail over the former; and he concluded that “Section 705.01-705.03 cannot be regarded as overturning the settled rule of law that a wrecked ship abandoned in navigable waters becomes the property of the first taker.” It was also his opinion that no grounds for enjoining the alleged trespass existed, “independently of the right of property in the sunken battleship”.

We will first consider the question of the right of the sovereign at common law, to goods found wrecked or derelict at sea, regardless of whether they were “cast upon the land or shore”. The rule is stated in Carver’s Carriage of Goods by Sea, 9th Ed., p. 580, as follows:

“So where a ship is derelict, or where goods have been thrown out of a vessel to lighten her (jetsam), or have been sunk but tied to some floating mark to show the place (lagan) or have been washed out of the ship and remain afloat (flotsam), in those cases, also, the property belongs to the Crown in its office of Admiralty, unless the owner establishes his claim to it.”

This statement is supported by the English cases on the subject. “* * * the common law gave as well wreck, jetsam, flotsam, and lagan upon the sea, as estray * * *, treasure-trove, and the like to the King, because by the rule of the common law, when no man can claim property in any goods, the King shall have them by his prerogative”. Sir Henry Constable’s Case, 5 Coke’s Report 108b, 77 Eng. Repr. 218, 223. “By the general law, all goods found afloat and derelict on the high seas belong, as droits, to the Crown, in its office of Admiralty.” The King v. Forty-Nine Casks of Brandy (1836) 3 Hagg. Adm. 292, 166 Eng. Repr. 414. A wrecked vessel and its cargo, lying at the bottom of the sea, is a “derelict” which, if not claimed by the owner, at the end of a year, becomes a droit of the Crown in its office of Admiralty. H. M. S. Thetis (1835) 3 Hagg. 228, 166 Eng. Repr. 390, 391. See also the Tubantia (1924) P. 78, 91; The King v. Two Casks of Tallow (1837) 3 Hagg. Adm. 292, 166 Eng. Repr. 414; and The Aquila (1798) 1 C. Rob. 37, 165 Eng. Repr. 87, 91.

The difficulty which the Chancellor — and apparently the parties, also — has had with this question stems from a misunderstanding of the meaning and effect of the two English statutes cited above. The statute of 3 Edwards I, Ch. 4, (enacted in 1275) provides that:

“Concerning Wrecks of the Sea, it is agreed, that where a Man, a Dog, or a Cat escape quick out of the Ship, that such Ship nor Barge, nor any Thing within them, shall be adjudged Wreck; (2) but the goods shall be saved and kept by View of the Sheriff, Coroner, or the King’s Bailiff, and delivered into the Hands of such as are of the Crown, where the Goods were found; (3) so that if any sue for those Goods, and after prove that they were his, or perished in his keeping, within a Year and a Day, they shall be restored to him without Delay; and if not, they shall remain to the King, and be seized by the Sheriffs, Coroners, and Bailiffs, and shall be delivered to them of the Town, which shall answer before the Justices of the Wreck belonging to the King.”

The statute of 17 Edward II, Ch. 11 (enacted in 1324) provides that:

■“Also the King shall have Wreck of the Sea throughout the Realm; (2) Whales and great Sturgeons taken in the Sea or elsewhere within the Realm, (3) except in certain Places privileged by the King.”

These two statutes did not confer any new right upon the Crown. By the ancient Roman law and the early common law of England, the right of the sovereign to wrecked and derelict property on the seas was absolute, to the exclusion of the owner. See the note to The Aquila, supra, 165 Eng. Repr. 87, 91. But by the time of Edward I, this harsh rule had been softened and the owner could reclaim his property within a year and a day. The statute of 3 Edward I, Ch. 4, “was but a declaration of the common law against the opinion in Dr. and Stud. lib. 2 fo. 118, and if the owner dies, his executors or administrators may make their proofs.” Constable’s Case, supra, 77 Eng. Repr. 218, 222. Similarly, the declaration of the statute of 17 Edward II, supra, that “wreck of the sea” belonged to the King “except in certain places Privileged by the King” was “but a declaration and an affirmation of the common law. For notwithstanding that stat. being made within time of memory, a man may prescribe to have wreck, * * * ” Constable’s Case, supra. And, of course, the King could grant the right to “wreck of the sea” to a subject, generally to the lord of a manor bordering on the sea. In fact, most of the cases in which “wreck of the sea” or wreccum marts, has been defined were concerned with the question of ownership of shipwrecked goods, as between the Crown and the lord of the man- or, where the lord is claiming ownership of the goods either under a grant of wreck or by prescription.

In short, the statute of 3 Edward I, supra, was simply a declaration of the right of an. owner to assert bis ownership to shipwrecked goods within a year and a day — a right which already existed under the common law, not only as to technical “wreck of the sea” but also to goods of the character of flotsam, jetsam, and lagcm. And the statute of 17 Edward II, supra, was merely a declaration of the privilege of acquiring a right to “wreck of the sea”, in its technical sense, by prescription or usage, already existing under the common law. Constable’s case, supra.

The Florida statute relevant to this particular point is Ch. 705, Fla.Stat.1955, F.S.A., parts of which, Sections 4, 5 and 6, were enacted in 1850 as part of Ch. 344, Acts of 1850, and the remainder in 1859 as Ch. 1005, Acts of 1859, under the title “An Act for the protection and disposal of Wrecked and Derelict Goods in the State of Florida.” It provides, in Section 1, that “Whenever any wrecked derelict goods, abandoned motor vehicle or other personal property shall be found in any county in this state, the county judge shall ascertain the amount and situation of the same, and by his written order shall cause the sheriff to take charge thereof and sell the same at public outcry, after giving a reasonable public notice of the time and place of such sale.” Provision is made for the determination of a salvage award to be paid to the “salvors or persons finding and reporting such goods,” and the balance of the proceeds of the sale (after deducting a commission to the sheriff and county judge) is to be held for the owner for “one year and a day” and thereafter paid into the state treasury, if no claimant appears. Sections 705.02 and 705.03, supra. It also provides for the punishment of any person who finds “wrecked or derelict goods and fails to report them to the county judge of the county wherein the same are found,” Section 705.07, or who “secretes or appropriates the same to his own use * * Section 705.08. (Emphasis added.)

It should also be noted that, at the time of the enactment of Ch. 1005, Acts 1859, supra, provision had already been made for the taking up, for the benefit of the public treasury, of boats and vessels adrift, Act of Nov. 21, 1828, lumber adrift, Act of Jan. 8, 1853, now Ch. 706, Fla.Stat.1955, F.S.A., and estrays, Act of Feb. 12, 1833, now Ch. 707, Fla.Stat.1955, F.S.A.

So the history of these various enactments shows the intention of the State to pre-empt for itself those fiscal perquisites which, at common law, had been the prerogative right of the Crown. To interpret Ch. 705, supra, as applying only to goods which were, technically, “wreck of the sea” (that is, goods cast upon the shore) at common law, as the Company would have us do, we would have to hold that the statute, by implication, divested this state of a prerogative right of the Crown to which it succeeded when it became a sovereign state of this Union and adopted the common law of England as it existed in 1776. The statute did not do so expressly, nor is such a result necessarily implied. The statute must have been intended only to prescribe the procedure by which goods found wrecked or derelict in or upon the territorial waters of this state within the boundaries of any county of this state — whether technically “droits of admiralty” or “wreck of the sea” at common law — could be pre-empted on behalf of the state and the rights of the owner therein preserved. It had no more effect on the existing common law right of the state than did the statute of 3 Edward I, Ch. 4, supra, on the common law right of the Crown in this respect.

Nor do we think that Section 715.01, Fla.Stat.1955, F.S.A., supra, had the effect of divesting or abrogating the state’s prerogative right here in question. This statute confirms in the finder, after six months, the title to personal property found in public places; but we do not think it had the effect of abrogating the state’s prerogative rights to wrecked and derelict goods of the kind here in question, any more than it divested the state and counties of their right to share in the proceeds of the sale of es-trays, boats and vessels adrift, and lumber adrift, as provided for in Chs. 706 and 707, supra. These rights could, of course, be divested or abrogated by statute; but unless the statute relied upon expressly so declares or unless this is a necessary inference from its provisions, we will not so interpret it. And we cannot read such a sweeping abrogation of existing governmental rights into Section 715.01, supra, which must have been intended as a declaration of the common law rights of the finder of lost property, with a limitation period of six months within which the owner would have the right to reclaim his property.

We conclude, therefore, that the wreck of the vessel is a “derelict” which, at common law, would belong to the Crown in its office of Admiralty at the end of a year and a day, under the authority of the English cases above cited; that since the property was resting in territorial waters of the State of Florida and within the boundaries of Escambia County, See Section 7.17, Fla. Stat.1955, F.S.A., it is within the purview of the common law and Ch. 705, supra, and belongs to the State in its sovereign capacity. See also “Submerged Lands (Tidelands) Act of 1953”, 67 Stat. 29, also Title 43 U.S.C.A. § 1301 et seq.

It might be noted that the administrative officers of this state have for many years so interpreted Ch. 705, supra, and related statutes. See Section 253.03, Fla.Stat. 1955, F.S.A., designating state-owned water bottoms as “state lands”; Section 821.19, Ibid., prohibiting trespass upon state lands; and Section 821.20, Ibid., defining “trespass” as, among others, “the use or removal of the soil of said land or anything except wild game in, on or under such soil, without written lease from the state.” While not binding on the court, such administrative interpretations are entitled to great weight and will not be departed from by the courts unless clearly erroneous or unauthorized. Gay v. Canada Dry Bottling Co. of Florida, Inc., Fla.1952, 59 So.2d 788, 790.

The Company states in its brief that “If the law for which the appellants contend is applied in this case, then all of the settled law, maritime and property law of the United States and literally of the world will be upset.” We do not find this theory of the law to be a new and startling one. As long ago as the year 1798, in The Aquila, supra, 1 c. Rob. 37, 165 Eng. Repr. 87, 89, we find a salvor attempting to claim the title, by right of occupancy, to the cargo carried in a ship found derelict at sea, where the ship was claimed and restored to the owner and the cargo remained unclaimed. Sir W Scott, Judge of the Admiralty, said in that case:

“It is certainly very true that property may be so acquired: but the question is, to whom is it acquired? By the law of nature, to the individual finder or occupant; But in a state of civil society, although property may be acquired by occupancy, it is not necessarily acquired to the occupant himself; for the positive regulations of the State may have made alterations on the subject; and may, for reasons of public peace and policy, have appropriated it to other persons, as, for instance, to the State itself, or to its grantees.
“It will depend, therefore, on the law of each country to determine, whether property so acquired by occupancy, shall accrue to the individual finder, or to the Sovereign and his representatives ? And I consider it to be the general rule of civilized countries, that what is found derelict on the seas, is acquired beneficially for the Sovereign, if no owner shall appear. Selden (De Dom, Maris, lib. i, c. 24) lays it down as a right annexed to sovereignty, and acknowledged amongst all nations ancient and modern. Loccenius (Lib. i, c. 7, 10) mentions it as an incontestable right of sovereignty in the north of Europe. Valin (Lib. iv, tit. 9, art. 26) ascribes the same right to the crown of France; and speaking of the rule in France, that a third shall be given to salvors, in cases of shipwreck, expressly applies the same rule to derelicts, as standing on the same footing. In England this right is as firmly established as any one prerogative of the crown. ♦ * *

For the reasons stated, we hold that the State of Florida, in its sovereign capacity, has a possessory right or title to the wreck of the Massachusetts superior to that of the Company, and that the lower court erred in refusing to enter a permanent injunction against the Company’s interference with such title or possession.

Accordingly, the decree appealed from should be and it is hereby

Reversed.

THOMAS, HOBSON, THORNAL and O’CONNELL, JJ., concur.

DREW, C. J., dissents.

TERRELL, J., not participating.

DREW, Chief Justice

(dissenting).

Although there is serious doubt of the applicability of the King’s prerogative in wreck or derelict’s through Section 2.01 Florida Statutes 1955, F.S.A., it is not necessary to belabor the point for there are two more specific Florida Statutes to consider— Ch. 705 and Section 715.01 Florida Statutes 1955, F.S.A. The scheme of Chapter 705, supra, is first announced in Section 705.01:

“County judge to order sale. — Whenever any wrecked derelict goods, abandoned motor vehicle or other personal property shall be found in any county in this state, the county judge shall ascertain the amount and situation of the same,'and by. his written'order shall cause’ the sheriff to take charge thereof and sell the same at public outcry, after giving a reasonable public notice of the time and place of such sale.”

Then Section 705.02 grants a salvage to the finder out of the proceeds of the sale. Finally, Section 705.03 directs that the remaining sum, less certain costs, be held for a year and a day for the owner and if not then claimed be turned over to the state treasury.

The other statute, Section 715.01, provides :

“Title to personal property found in public places. — The title to all personal property found in or upon public conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas and other places open to the public is hereby vested in the finder unless the same be called for or claimed by the rightful owner thereof within six months after the finding thereof.”

The two statutes can be harmonized if one recognizes that the later statute, Section 715.01, operates only where personal property is found “in or upon public conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas and other places open to the public." (Emphasis supplied.) Thus an area outside of “places open to the public” is left for the operation of Chapter 705. The facts of the present case bring it within the more specific operation of Section 715.01. I, therefore, conclude that the judgment of the circuit judge, which upholds the right of the finder against the claim of the state, is correct.

On Rehearing

ROBERTS, Justice.

After further consideration upon rehearing granted, we adhere to our former opinion and judgment. See also Sec. 716.01, et seq., F.S.A.

■ It is so ordered.

TERRELL, C. J., and THOMAS, HOB-SON, THORNAL and O’CONNELL, JJ., concur.

DREW, J., dissents.

      . See, Russell v. Forty Bales of Cotton, D.C.S.D.Fla.1872, 21 Fed.Cas. page 42, No. 12,154; and see, the interpretation of Section 2.01 in Waller v. First Savings & Trust Co., 1931, 103 Fla. 1025, 1038, 138 So. 780; Banfield v. Addington, 1932, 104 Fla. 661, 140 So. 893, 899; and Ripley v. Ewell, Fla.1952, 61 So.2d 420.