O'Brien Associates v. Smith

159 So. 2d 228

• Court: Supreme Court of Florida
• Decided: December 18, 1963
• Docket: No. 32681
• Status: Published

Opinion

HOBSON, Justice (Ret.).

This case is here upon a petition for a writ of certiorari directed to the order of the Florida Industrial Commission dated February 18, 1963, which affirmed in all pertinent aspects the order of the Deputy Commissioner entered on August 2, 1962.

The only serious question we find in this cause is the failure of the Deputy to make a specific finding of fact that there either had been a change in condition since the entry of his original order or a mistake of fact made therein. One of these situations had to exist or the Deputy'would not have had jurisdiction to entertain the petition for modification filed under the provisions of Section 440.28, Florida Statutes, F.S.A.

There are certainly no findings regarding the reason for changing the original order of November 7, 1961. Consequently we have no way to test the Deputy’s undeclared findings by the record.

We therefore quash the order of the full Commission and remand the case with directions to the full Commission that it return the cause to the Deputy with instructions that he make specific findings as required by F.S. Section 440.28, F.S.A., and our decisions on the issues, to wit: Whether there had been a change in condition since entry of his prior order or if there had been a mistake of fact made therein. See Hardy v. City of Tarpon Springs, Fla.Sup., 81 So.2d 503; Wenshaw v. Smith, Fla.Sup., 151 So.2d 3, and Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207, cited in Wen-shaw with approval.

It is so ordered.

ROBERTS, Acting C. J., THORNAL and CALDWELL, JJ., and SCOTT, Circuit Judge, concur.