Opinion
July 25, 1950. Rehearing Denied November 17, 1950.
Appeal from the Circuit Court, Leon County, Hugh M. Taylor, J.
Jesse F. Warren, Jr., and James C. Gwynn, Tallahassee, for appellant.
W.J. Oven, Jr., and Meginniss, Thompson Morrison, all of Tallahassee, for appellees.
This is a workmen's compensation case and the facts involved are substantially as follows: On February 11, 1948, and prior thereto, the claimant, E.E. Cook, age 62, was employed by Henry C. Beck Company in the capacity of a night watchman at Tallahassee, Florida, at the time it was engaged in the construction of the Florida Industrial Commission Building, which later was named the Caldwell Building. Cook was assigned the duties of guarding the building then in process of construction and the surrounding grounds or premises. About the premises where the building was being constructed were holes, ditches and excavations which were filled with water during rainy periods. It was the claimant's duty to make at nighttime, under an inadequate lighting system, tours about the premises in order to guard and protect the property of Henry C. Beck Company.
Pertinent testimony is viz.:
"Q. In February of last year (1948) did you develop pneumonia? A. Yes, sir.
"Q. Will you tell what happened just prior to your developing pneumonia? A. Well, it was awful sloppy weather, water all over the place, raining regular and I had to go back and forth through the building through the night, all out of the job. Had lots of steel unloaded on the side of Gaines Street. I had to look after that. Had to walk across the yard, distance across there. It was a cold, rainy night. I started across there, going down there, heard some steel rattle and went down to see about it. There was this big ditch. Had to walk across a gang plank. It was wet and slippery and I fell. I was practically waist deep in water.
"Q. You say you were going across this slippery board and fell off? A. Yes, sir.
"Q. Fell in water up to your waist? A. Yes, sir.
"Q. Do you remember how long before you became sick and left the job? A. Around three days.
"Q. After that happened, did you continue to perform your duties as night watchman for the rest of the night? A. Yes, sir.
"Q. Was there any way of drying yourself out? A. There was a tin heater the wind blew through that didn't give much heat.
"Q. You were not able to dry yourself out before you left the next morning? A. No, sir, clothes were still wet.
"Q. How soon after this did you notice any ill effects? A. It was on Thursday I began feeling worse, had a bad cold, trying to work on with it. So I felt the effects of it all day during the day Friday. Started getting worse, burning up with fever. I called my daughter. She called the doctor and he came down and rushed me on to the hospital.
"Q. Would you say then your condition developed within how many days after you fell into the water on the job? A. Well, not over five days, something like that, around the first of the week and I was carried to the hospital on Friday night."
Claimant worked for the Beck Company as a night watchman during the month of January and until February 11, 1948, or until he took pneumonia and went to the hospital. He earned forty cents per hour and usually worked sixty-four hours per week which, plus overtime, brought his gross weekly earnings to the sum of approximately $30.00 per week. He was working for the Beck Company when he took pneumonia and sent word to Mr. Speers that he was sick. He was not on the job for about two weeks. The weather in February, 1948, was bad. It is asserted that Mr. Speers was claimant's superior officer and was informed of Cook's illness.
Dr. Coughlin expressed the view that exposure endured by the claimant as night watchman was a contributory factor to pneumonia. Pertinent here is the Doctor's testimony:
"Deputy Commissioner: Q. Dr. Coughlin, if the claimant in this case was exposed to cold, damp weather, became wet and was required to remain outside in the cold weather for long periods of time doing his duties as a night watchman, what in your opinion caused the pneumonia in this instance? A. I have no doubt but what the exposure that the man endured by virtue of his occupation was a direct contributable factor to his pneumonia.
"Q. Based upon the history the claimant gave you when you first saw him, is it your opinion that this man suffered more or less exposure than the ordinary person would during the same period of time in the same locality? A. Yes, because the man was outside. He told me he had to make rounds outside of the building and became wet and at one point on the night before the accident occurred that he had stumbled where there wasn't a good light and fallen into a puddle whereas the general public was asleep in their trundle-beds at the same time and not exposed to those conditions.
"By Mr. Gwynn: Q. Do you remember whether or not in February of last year it was cold and inclement? A. I know that it was a nasty night when I went to call on him, had to wear a rain coat."
The controlling question presented here is whether or not claimant's attack of pneumonia and the injuries and losses incident thereto, as above recited, are compensable under Subsection 19 of Section 440.02, F.S.A. Honorable Rodney Durrance, Deputy Commissioner, after hearing all the evidence and examining the applicable authorities, reached the conclusion that the attack of pneumonia was an injury and compensable. On appeal to the Florida Industrial Commission the award, as entered by the Deputy Commissioner, was reversed by a vote of two to one. An appeal was perfected therefrom to the Circuit Court of Leon County, where the order of reversal was affirmed. The claimant appealed. The controversy reflected by the record is not so much the disputes or conflicts in the testimony, but the real issue is what principle of law should be applied to the admitted facts.
In the case of Orr, Jr., Inc., v. Florida Industrial Commission, 129 Fla. 369, 176 So. 172, the claimant, in the course of his employment, was required to use a hand furnace or blow torch and while so doing suffered a sunstroke. We held the injury compensable on the theory that Orr was subjected to hazards materially greater than other persons in the community because of such heat exposures. Our rule in the Orr case is recognized and accurately stated, with numerous exceptions with citations of cases, in 58 Am.Jur. 762-763, par. 261; Schneider on Workmen's Compensation, 2d Ed., Vol. 1, 661-668, par 232. We have given careful consideration to the authorities cited by the Deputy Commissioner in his order of award, and it is our conclusion that the judgment appealed from should be reversed.
Reversed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.
On Rehearing
A petition for rehearing having been filed in this cause by Counsel for Appellees and having been duly considered, it is ordered by the Court that the said petition be and the same is hereby denied.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.
HOBSON, J., dissents.
I favor granting the petition for rehearing for the purpose of including in the original opinion the following pronouncements:
In and by our original opinion we reversed the order of the Circuit Judge in which he affirmed the order entered by the Florida Industrial Commission. Our opinion discloses the fact that in reversing the Circuit Court's judgment affirming the order of the full Commission we upheld the findings and the award made by the deputy commissioner but we did not answer the question which obviously was in the mind of the Circuit Judge. That query is: Did the Circuit Judge err in giving to the findings of the Florida Industrial Commission "about the same weight as the findings of a master?"
The learned Circuit Judge, Honorable Hugh M. Taylor, made the following observations in his order of affirmance:
"After carefully reviewing the evidence, the Court is of the opinion that were it proceeding upon the evidence alone, it would find as a matter of fact that the circumstances shown to have existed prior to and in connection with the illness of the claimant preponderates in favor of the finding that the claimant suffered an accident in slipping from an insecure footing into water while in the course of his employment, and, as a result of this accident, he contracted pneumonia resulting in disability, but the Court finds as a matter of law, that under the decisions of the Florida Supreme Court, the findings of the Florida Industrial Commission must be given about the same weight as the findings of a Master, and that such findings should not be set aside by the Court unless they are clearly wrong. Reasonable men could differ in their conclusions from the evidence in this case. For this reason, the Court is of the opinion that it should affirm the finding of the Florida Industrial Commission that there was no accidental injury arising out of and in the course of employment."
Evidently the Circuit Judge felt that he was bound by our holding in Sonny Boy's Fruit Company v. Compton, Fla., 46 So.2d 17, 18, wherein we said:
"the probity of the evidence is for the Industrial Commission to determine and their findings should not be reversed unless shown to be clearly erroneous."
In that case we cited McCall et al. v. Motor Fuel Carriers, Inc., et al., 155 Fla. 854, 22 So.2d 153 and Crawford v. Benrus Markets, Fla., 40 So.2d 889.
It is true that each of the foregoing cases was decided at a time subsequent to the 1941 amendments to Sections 440.25 and 440.27 but our original pronouncement to the effect that the Circuit Judge should give to the Commission's findings about the same weight that is given by a chancellor to the findings of a special master was made before the 1941 amendments to the foregoing sections. Prior to said amendments the law provided: "The hearing may be conducted by a deputy commissioner, or by any member of the Commission * * *" and that "if an application for review is made to the Commission within seven days from the date of notice of the award, the full Commission shall review the evidence or, if deemed advisable, as soon as practicable hear the parties at issue, their representatives and witnesses * * *." (Italics supplied.) As amended, the law reads as follows: "The hearing shall be conducted by a deputy commissioner * * *" and, in lieu of the provision that the full commission might hear the witnesses and in effect conduct a hearing de novo, it was provided by the 1941 amendment that "The full commission shall consider the matter upon the record as prepared and certified by the deputy commissioner * * *." (Italics supplied.)
Evidently in those cases which were decided by this Court subsequent to the 1941 amendments our attention was not called to the possible effect of the amendments with reference to the rule concerning the weight to be given by the Circuit Court to the Commission's findings of facts. We have repeatedly given the reasons for the existence of the rule that the Chancellor should not over-rule the special master's findings of facts unless they are clearly erroneous, or, stated another way, unless there is no competent, substantial evidence which supports such findings. The fact-finding arbiter who hears the witnesses has the advantage of observing them on the witness stand, detecting their readiness or reticence in testifying, and is in a position "to interpret accurately the word of a witness where the meaning may be materially changed by the inflection of the voice or by the location of an accent." Under the law as it presently exists the full commission, the Circuit Court and this Court must evaluate the evidence upon a consideration of a cold typewritten transcript which was not the case with the full commission before the enactment of the 1941 amendments, for it had the right under the original law to call in the witnesses or additional witnesses and conduct a hearing de novo and was not required to use the services of a deputy commissioner. The reasons which give rise to the rule, that the chancellor should not reverse the findings of facts made by a special master unless they are clearly erroneous or there is no competent, substantial evidence which sustains them, exist whenever any person or group of persons may be clothed with authority to hear testimony and decide questions of fact. Any fact-finding individual or board is at least acting in a quasi judicial capacity and as such fact-finding arbiter his, or its, findings are entitled to a presumption of correctness. See Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So.2d 136; Harmon v. Harmon, Fla., 40 So.2d 209.
It is my view that under existing law the full Commission when reviewing a matter which has been heard by a deputy commissioner should give to the deputy commissioner's findings of facts about the same weight that a Chancellor is required to give to the findings of facts made by a special master and the full Commission should not reverse the findings of facts made by a deputy commissioner unless it is made to appear that those findings of facts were clearly erroneous. Upon appeal to the Circuit Court that tribunal should bear in mind the last stated rule in determining whether the order of the Commission should be affirmed, reversed or altered or the cause remanded to the Commission for further proceedings but said Court is not now required to give to the findings of the Florida Industrial Commission "about the same weight as the findings of a Master." It is the duty of the Circuit Court to determine whether the full Commission observed the "substantial evidence" or the "presumption of correctness" rule when the matter was before said Commission for review as provided by statute, our former adjudications rendered after the 1941 amendments of Sections 440.25 and 440.27, Florida Statutes, to the contrary notwithstanding.
I adhere to our original opinion but would modify it by the incorporation therein of the foregoing pronouncements.