Opinion
May 26, 1950. Rehearing Denied June 16, 1950.
Appeal from the Circuit Court for Indian River County, A.O. Kanner, J.
J. Pasco Woods, Vero Beach, and Carroll Dunscombe, Stuart, for appellant.
Earnest, Lewis, Smith Jones, West Palm Beach, for appellees.
The claimant, George A. Saunders, prior to and on September 4, 1948, operated Cities Service Filling Station No. 4, owned by the Bostick Corporation of Miami and by it leased to the Orange State Oil Company, and it yielded a monthly rental of approximately $106 per month. Saunders rented the station through Mr. Tob Cobb, of Vero Beach, a representative of the Orange State Oil Company, and Cities Service products only were handled through the station. Saunders bought these products of one of the appellees at wholesale prices and then retailed the same at a price of four cents per gallon profit; one cent per gallon was retained by one of the appellees as rental for the station and the remaining three cents per gallon profit went to Saunders as a salary compensation and through him other operating costs of the station. The profits arising from the sale of other articles about the station usually went to Saunders. He did not receive an agreed amount of salary, but his compensation for his labor, according to the agreement, was on a commission basis.
The insurance carriers of Cities Service Oil Company and Orange State Oil Company are Liberty Mutual Insurance Company and Fidelity Casualty Company. On the 4th day of September, 1948, a Mr. O.D. Honeywell was having his automobile serviced at the station operated by claimant Saunders, and as gasoline was being pumped into the tank of the Honeywell car, Mr. Honeywell struck a match to smoke and thereby ignited the gasoline and parts of the station were ablaze and the shirt worn by claimant Saunders was covered in flames, and as a result he was severely burned, which necessitated hospitalization and treatment for a long period of time.
An insurance adjuster, R.R. Koch, representing an insurance company carrying the liability on the Honeywell automobile, paid George A. Saunders $3,000 for an agreement not to sue for the injuries sustained when the filling station caught fire and the instrument signed by claimant Saunders is viz.:
"Know All Men by These Presents, that George A. Saunders, Vero Beach, Florida, for my/our heirs, executors, administrators, successors and assigns, for and in consideration of the sum of Three Thousand and no/100 Dollars to me/us paid, the receipt of which is hereby acknowledged by this instrument Agree to Forever Refrain from instituting, procuring, or in any way aiding any suit, cause of action or claim against O.D. Honeywell and all persons, firms and/or corporations for whose acts or to whom said party or parties might be liable, for damages, costs or expenses growing out of an accident occurring on or about the 4th day of September, 1948, at or near Vero Beach, Florida, and Save Harmless and Indemnify the parties aforesaid from all loss and/or expense resulting from any such suit, cause of action or claim.
"Expressly Reserving to the undersigned however, all rights to proceed against any person or persons other than the parties aforesaid.
"And for the Consideration Aforesaid, I do further covenant and agree with the said O.D. Honeywell that in the event that I release or settle my claim for said injuries against the said O.D. Honeywell, I will execute and deliver to said O.D. Honeywell legal release for said injuries.
"Signed, sealed and delivered the 25 day of February, 1949, in presence of:"Robert R. Koch George A. Saunders
Witness (Seal) "_________________ Witness ____________________ (Seal)" Pursuant to the execution and delivery of the aforesaid agreement and in consideration thereof the American Fire Casualty Company, on February 25, 1949, delivered a claim draft payable to George A. Saunders and his attorney, Otis Cobb, in the sum of $350 as counsel fees, and to George A. Saunders a draft for $2,650. The receipt of payment by Saunders and his attorney of the two drafts totalling $3,000 is not denied.The claimant Saunders later filed with the Florida Industrial Commission his claim for compensation for injuries sustained against his employers the Cities Service Oil Company and Orange State Oil Company. Testimony was taken before Deputy Commissioner James R. Knott, and at the conclusion of the taking of testimony an order was by him entered denying the claim of Saunders. The Industrial Commission, on November 14, 1949, by an appropriate order, affirmed the order of the Deputy Commissioner. An Appeal was taken to the Circuit Court of Indian River County, where an order of affirmance was entered. An Appeal has been perfected here.
Section 440.39, Florida Statutes 1941, relating to compensation for injuries where third persons are liable was amended by Chapter 23822, Acts of 1947, Laws of Florida. Pertinent portions of amended Section 440.39, F.S.A., are viz.:
" 440.39. Compensation for injuries where third persons are liable
"(1) If an employee, subject to the provisions of this chapter, is injured or killed by the negligence or wrong, of a person other than the employer, such injured employee or, in the case of his death, his dependents, shall elect whether to accept compensation under this chapter or to pursue his or their remedy against such third person.
"(2) Settlement of a claim, commencement of or settlement of an action against said third person shall constitute an election by the employee or his dependents to pursue his or their remedy against such third person. In the event such an election is made, the employee or his dependents shall not be entitled to any compensation under this chapter.
"(3) If the employee or his dependents shall accept compensation hereunder or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder, then the insurer shall be subrogated to the rights of the employee or his dependents against such third person. The employer or insurer may commence an action in his or its own name and/or in the name of the injured employee or his dependents against such third person and may recover any amount which such employee or his dependents would have been entitled to recover. Settlement by the employer or insurer of any such cause of action against a third person shall be made only with the written consent of the employee or his dependents, except that where such consent is refused, the employer or insurer, upon five days' notice to the employee or his dependents, may apply to the court having jurisdiction of the trial thereof for its approval of the proposed settlement. * * *"
The controlling question presented here is whether or not the acceptance by claimant Saunders of the sum of $3,000 as full settlement and entering into a covenant not to sue the American Fire Casualty Company, the insurance carrier of the third party Honeywell constitute such an election under the provisions of Amended Section 440.39, F.S.A., as may bar or will preclude the claimant Saunders from asserting his claim for the benefits provided for in the Workmen's Compensation Law as against his employers, to wit: the Cities Service Oil Company and Orange State Oil Company and their insurance carriers.
The following language of the covenant not to sue viz.: "expressly reserving to the undersigned (George A. Saunders) however all rights to proceed against any other person or persons other than the parties aforesaid", coupled with his testimony appearing in the record, indicates that it was his intention to reserve unto himself the legal right and privilege to prosecute to a satisfactory conclusion such rights, if any, then existing as possessed by him against other parties as were liable (allegedly being his employers). Mr. Koch, the adjuster, expressed the opinion that the covenant not to sue signed by Mr. Saunders was a release only of his company (American Fire Casualty Company) and was not a bar to any other action by Saunders against his employers.
We are forced to hold that when the claimant Saunders accepted the $3,000 and executed the covenant not to sue the American Fire Casualty Company, insurance carrier or Honeywell, a third party, liable to him, he did so with full knowledge of all the provisions of Amended Section 440.39, supra; applicable here are the following: "Settlement of a claim, commencement of or settlement of an action against said third person shall constitute an election by the employee or his dependents to pursue his or their remedy against such third person. In the event such an election is made, the employee or his dependents shall not be entitled to any compensation under this chapter."
Any citizen who is sui juris may enter into any agreement that is not illegal or contrary to public policy or not prohibited by statute, but all laws in effect in the State of Florida at the time and place of making the agreement entered into become a part of the agreement as if they were expressly referred to and incorporated therein. See Commissioners of Columbia County v. King, 13 Fla. 451. This rule has been reaffirmed by this Court on many occasions. Thus Amended Section 440.39, supra, became a part of the terms and conditions of the settlement agreement between claimant Saunders and the insurance carrier of Honeywell.
Counsel for appellant cite our holding in Sweat v. Allen, 145 Fla. 733, 200 So. 348. We have reviewed the case in light of the contentions of counsel. Our answer is that the Allen case was based on statutes which have either been repealed or amended. Our holding in the case at bar rests on Chapter 23822, Acts of 1947, Laws of Florida, which amended previous applicable statutes. It is possible that our conclusion here may result in hardships but it is our duty to ascertain the legislative intent of an act and observe it. The power to amend the Amended Act is vested in the Legislature — not the courts.
Affirmed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.