
    Andrew BARBERIS, Petitioner, v. TARPON ZOO & WILD CARGO, Continental Casualty Insurance Company, and the Florida Industrial Commission, Respondents.
    No. 38329.
    Supreme Court of Florida.
    Oct. 22, 1969.
    Rehearing Denied Nov. 18, 1969.
    John H. Lewis, of Meyer, Leben, Fixel & Gaines, P. A., Hollywood, for petitioner.
    Charles T. Kessler, of Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.
   PER CURIAM.

By petition for writ of certiorari we have for review an order of the Florida Industrial Commission bearing date January 22, 1969. Our consideration of the petitions, the records and briefs, and oral argument having been heard, leads us to conclude that the petition for certiorari and the petition for attorney fee should be and they are hereby denied.

It is so ordered.

ROBERTS, DREW, THORNAL, ADKINS and BOYD, JJ., concur.

CARLTON, J., dissents with opinion.

ERVIN, C. J., dissents and agrees with CARLTON, J.

CARLTON, Judge

(dissenting).

I must respectfully dissent.

The primary question here is whether the petitioner-claimant was an employee of the respondent at the time of the accident. The evidence submitted regarding this question was admittedly rather tenuous in nature due to the fact that the person who allegedly hired petitioner was killed in the accident in which petitioner was injured. There were no witnesses to the hiring. In view of this unfortunate fact situation, the litigants were forced to advance conflicting inferences as their primary mode of argument.

The Judge of Industrial Claims weighed the evidence advanced and concluded that petitioner had been employed by the deceased agent of respondent. The Full Commission majority, with a dissent, reversed. Because of the nature of the facts in this cause, I fail to see how the Commission majority could have reversed the Judge without having simply substituted its judgment for his. Competent, substantial evidence did exist sufficient to support the finding of the Judge, notwithstanding the fact that the evidence was admittedly tenuous. For this reason, I would vote to reverse the Commission.

ERVIN, C. J., concurs.  