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Florida Statute 440.05 | Lawyer Caselaw & Research
F.S. 440.05 Case Law from Google Scholar
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The 2023 Florida Statutes (including Special Session C)

Title XXXI
LABOR
Chapter 440
WORKERS' COMPENSATION
View Entire Chapter
F.S. 440.05
440.05 Election of exemption; revocation of election; notice; certification.
(1) Each corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, revokes that exemption shall submit to the department notice to such effect in accordance with a form to be prescribed by the department.
(2) Each sole proprietor or partner who elects to be included in the definition of “employee” or who, after such election, revokes that election must submit to the department notice to such effect, in accordance with a form to be prescribed by the department.
(3) The notice of election to be exempt must be electronically submitted to the department by the officer of a corporation who is allowed to claim an exemption as provided by this chapter and must list the name, date of birth, valid driver license number or Florida identification card number, and all certified or registered licenses issued pursuant to chapter 489 held by the person seeking the exemption, the registration number of the corporation filed with the Division of Corporations of the Department of State, and the percentage of ownership evidencing the required ownership under this chapter. The notice of election to be exempt must identify each corporation that employs the person electing the exemption and must list the federal tax identification number of each such employer and the additional documentation required by this section. In addition, the notice of election to be exempt must provide that the officer electing an exemption is not entitled to benefits under this chapter, must provide that the election does not exceed exemption limits for officers provided in s. 440.02, must certify that any employees of the corporation whose officer elects an exemption are covered by workers’ compensation insurance, and must certify that the officer electing an exemption has completed an online workers’ compensation coverage and compliance tutorial developed by the department. Upon receipt of the notice of the election to be exempt, receipt of all application fees, and a determination by the department that the notice meets the requirements of this subsection, the department shall issue a certification of the election to the officer, unless the department determines that the information contained in the notice is invalid. The department shall revoke a certificate of election to be exempt from coverage upon a determination by the department that the person does not meet the requirements for exemption or that the information contained in the notice of election to be exempt is invalid. The certificate of election must list the name of the corporation listed in the request for exemption. A new certificate of election must be obtained each time the person is employed by a new or different corporation that is not listed on the certificate of election. Upon written request from a workers’ compensation carrier, the department shall send thereafter an electronic notification to the carrier identifying each of its policyholders for which a notice of election to be exempt has been issued or for which a notice of revocation to be exempt has been received. Upon filing a notice of revocation of election, an officer who is a subcontractor or an officer of a corporate subcontractor must notify her or his contractor.
(4) The notice of election to be exempt from the provisions of this chapter must contain a notice that clearly states in substance the following: “Any person who, knowingly and with intent to injure, defraud, or deceive the department or any employer or employee, insurance company, or any other person, files a notice of election to be exempt containing any false or misleading information is guilty of a felony of the third degree.” Each person filing a notice of election to be exempt shall personally sign the notice and attest that he or she has reviewed, understands, and acknowledges the foregoing notice. The certificate of election to be exempt must contain the following notice: “This certificate of election to be exempt is NOT a license issued by the Department of Business and Professional Regulation (DBPR). To determine if the certificateholder is required to have a license to perform work or to verify the license of the certificateholder, go to (insert DBPR’s website address for where to find this information).”
(5) A notice given under subsection (1), subsection (2), or subsection (3) shall become effective when issued by the department or 30 days after it is received by the department, whichever occurs first. However, if an accident or occupational disease occurs less than 30 days after the effective date of the insurance policy under which the payment of compensation is secured or the date the employer qualified as a self-insurer, such notice is effective as of 12:01 a.m. of the day following the date it is submitted to the department.
(6) A certificate of election to be exempt which is issued on or after January 1, 2013, in accordance with this section is valid for 2 years after the effective date stated thereon. Both the effective date and the expiration date must be listed on the face of the certificate by the department. The certificate must expire at midnight, 2 years from its issue date, as noted on the face of the exemption certificate. A certificate of election to be exempt may be revoked before its expiration by the officer for whom it was issued or by the department for the reasons stated in this section. At least 60 days before the expiration date of a certificate of exemption, the department shall send notice of the expiration date to the certificateholder at the address on the certificate or to the e-mail address on file with the department.
(7) Any contractor responsible for compensation under s. 440.10 may register in writing with the workers’ compensation carrier for any subcontractor and shall thereafter be entitled to receive written notice from the carrier of any cancellation or nonrenewal of the policy.
(8)(a) The department must assess a fee of $50 with each request for a construction industry certificate of election to be exempt or renewal of election to be exempt under this section.
(b) The funds collected by the department shall be used to administer this section, to audit the businesses that pay the fee for compliance with any requirements of this chapter, and to enforce compliance with the provisions of this chapter.
(9) The department may by rule prescribe forms and procedures for filing an election of exemption, revocation of election to be exempt, and notice of election of coverage for all employers and require specified forms to be submitted by all employers in filing for the election of exemption. The department may by rule prescribe forms and procedures for issuing a certificate of the election of exemption.
(10) Any corporate officer permitted by this chapter to claim an exemption must be listed on the records of this state’s Secretary of State, Division of Corporations, as a corporate officer.
(11) Certificates of election to be exempt issued under subsection (3) apply only to the corporate officer named on the notice of election to be exempt.
(12) Notices of election to be exempt and certificates of election to be exempt shall be subject to revocation if, at any time after the filing of the notice or the issuance of the certificate, the person named on the notice or certificate no longer meets the requirements of this section for issuance of a certificate. The department shall revoke a certificate at any time for failure of the person named on the certificate to meet the requirements of this section.
(13) An officer of a corporation who elects exemption from this chapter by filing a certificate of election under this section may not recover benefits or compensation under this chapter. For purposes of determining the appropriate premium for workers’ compensation coverage, carriers may not consider any officer of a corporation who validly meets the requirements of this section to be an employee.
(14) Any corporate officer who is an affiliated person of a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to s. 440.107, or owed pursuant to a court order, is ineligible for an election of exemption. The stop-work order and penalty assessment shall be in effect against any such affiliated person. As used in this subsection, the term “affiliated person” means:
(a) The spouse of such other person;
(b) Any person who directly or indirectly owns or controls, or holds with the power to vote, 10 percent or more of the outstanding voting securities of such other person;
(c) Any person who directly or indirectly owns 10 percent or more of the outstanding voting securities that are directly or indirectly owned, controlled, or held with the power to vote by such other person;
(d) Any person or group of persons who directly or indirectly control, are controlled by, or are under common control with such other person;
(e) Any person who directly or indirectly acquires all or substantially all of the other assets of such other person;
(f) Any officer, director, trustee, partner, owner, manager, joint venturer, or employee of such other person or a person performing duties similar to persons in such positions; or
(g) Any person who has an officer, director, trustee, partner, or joint venturer in common with such person.
History.s. 5, ch. 17481, 1935; CGL 1936 Supp. 5966(5); ss. 17, 35, ch. 69-106; s. 2, ch. 70-148; s. 1, ch. 70-439; s. 3, ch. 74-197; s. 2, ch. 75-209; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 2, ch. 91-2; s. 3, ch. 93-415; s. 99, ch. 97-103; s. 1, ch. 98-125; s. 2, ch. 98-174; s. 40, ch. 99-240; s. 13, ch. 2002-194; s. 6, ch. 2002-236; s. 468, ch. 2003-261; s. 3, ch. 2003-412; s. 74, ch. 2005-2; s. 52, ch. 2006-1; ss. 3, 4, ch. 2012-213; s. 2, ch. 2013-141; s. 2, ch. 2016-56; s. 12, ch. 2022-138.

F.S. 440.05 on Google Scholar

F.S. 440.05 on Casetext

Amendments to 440.05


Arrestable Offenses / Crimes under Fla. Stat. 440.05
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 440.05.



Annotations, Discussions, Cases:

Cases from cite.case.law:

GLADDEN, v. FISHER THOMAS, INC. v., 232 So. 3d 1146 (Fla. Dist. Ct. App. 2017)

. . . officer is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 . . . Section 440.05(14), Florida States (2008), which governs the procedures for election of the corporate . . .

LOVERING, v. C. NICKERSON, 72 So. 3d 780 (Fla. Dist. Ct. App. 2011)

. . . and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05 . . .

J. BEND, Jr. v. SHAMROCK SERVICES, 59 So. 3d 153 (Fla. Dist. Ct. App. 2011)

. . . Code R. 69L-6.015 (enacted pursuant to §§ 440.05(10), 440.107(5), and 440.591). . . .

FLORIDA DEPARTMENT OF FINANCIAL SERVICES v. MJ VERSAGGI TRUST d b a, 952 So. 2d 583 (Fla. Dist. Ct. App. 2007)

. . . Division of Workers’ Compensation of the Department of Labor and Employment Security] as provided in s. 440.05 . . . Section 440.05 sets out the requirements for the election notice. . . . But merely completing the form does not satisfy the requirements for an exemption under section 440.05 . . . Workers’ Compensation and that the notice is not effective “until 30 days after the date it is mailed.” § 440.05 . . . unless he or she makes the affirmative election to come within that category as set forth in section 440.05 . . .

BATTLE d b a v. E. GENTRY,, 898 So. 2d 263 (Fla. Dist. Ct. App. 2005)

. . . Compensation Claims (JCC) finding that the claimant’s notice of election to be exempt pursuant to section 440.05 . . . Section 440.05(3), provides that certain construction industry workers can exempt themselves from the . . . The claimant, therefore, took an oath as section 440.05(3) requires, and the JCC erred in ruling that . . .

RODGERS, v., 250 B.R. 883 (Bankr. S.D. Ohio 2000)

. . . From the Debtor’s gross wages, deductions are taken for payroll taxes ($440.05 per month), child support . . .

SPECIALTY EMPLOYEE LEASING v. DAVIS,, 737 So. 2d 1170 (Fla. Dist. Ct. App. 1999)

. . . construction industry who had filed a notice with the Division of Workers’ Compensation pursuant to section 440.05 . . . law that Davis had mailed to the Division of Workers’ Compensation on December 13,1996. ' ' x Section 440.05 . . .

ARMSTRONG, v. ORMOND IN THE PINES, 734 So. 2d 596 (Fla. Dist. Ct. App. 1999)

. . . the definition of employee by filing written notice of election with the division as provided in s. 440.05 . . .

D. SMITH, v. LARRY RICE CONSTRUCTION, 730 So. 2d 336 (Fla. Dist. Ct. App. 1999)

. . . definition of employee by filing written notice of the election with the division as provided in s. 440.05 . . . Smith filed his notice of election to be exempt, section 440.05, Florida Statutes (1993), provided, in . . . notice is effective as of 12:01 a.m. of the day following the date it is mailed to the division.” § 440.05 . . . of a corporation who elects exemption from this chapter by filing a certificate of election under § 440.05 . . . of a corporation who elects exemption from this chapter by filing a certificate of election under § 440.05 . . .

GALEN OF FLORIDA, INC. v. BRANIFF, BAZLEY, M. D. v. BRANIFF,, 696 So. 2d 308 (Fla. 1997)

. . . In Allen, the Court addressed the section 440.05 notice requirement contained in the 1967 version of . . . employer obtained coverage but failed to post notice of the waiver of exemption in accordance with section 440.05 . . . waiver of exemption from chapter 440 is not dependant upon the posting of notice as provided in section 440.05 . . . Allen, 281 So.2d at 322 (quoting § 440.05, Fla. Stat. (1967)). . . . . He did not, however, post the notice required by § 440.05, Florida Statutes (1967): Every employer who . . .

JENNINGS, v. STATE, 667 So. 2d 442 (Fla. Dist. Ct. App. 1996)

. . . .”); § 440.05(4), Fla.Stat. (1993) (notice effective as of “12:01 a.m.”); § 562.14, Fla.Stat. (1993) . . .

BRADFORD, a BRADFORD, v. FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,, 667 So. 2d 401 (Fla. Dist. Ct. App. 1995)

. . . He did not, however, post the notice required by § 440.05, Florida Statutes (1967): Every employer who . . .

LOWRY, v. G. LOGAN, 650 So. 2d 653 (Fla. Dist. Ct. App. 1995)

. . . by giving notice of such election to the Division of Workers’ Compensation, as provided in section 440.05 . . . employment, or a mailed notice of such election to the Division of Workers’ Compensation pursuant to section 440.05 . . .

LIBERTY MUTUAL INSURANCE COMPANY, v. J. SCALISE,, 627 So. 2d 87 (Fla. Dist. Ct. App. 1993)

. . . with the Division of Labor of the Department of Labor and Employment Security, pursuant to Section 440.05 . . . Because Section 440.05 contained no “time limit or period of expiration for ... a Notice of Election, . . . workers’ compensation policy [with Liberty Mutual] as an employee pursuant to the provisions of Section 440.05 . . . Section 440.05(2), Florida Statutes (1981), reads: Every sole proprietor or partner who elects to be . . .

WEBER, v. DOBBINS,, 616 So. 2d 956 (Fla. 1993)

. . . SECTION 440.11, FLORIDA STATUTES (1983), EXTEND TO A CORPORATE OFFICER WHO ELECTS, PURSUANT TO SECTION 440.05 . . . under this chapter by filing written certification of the election with the division as provided in s. 440.05 . . . Section 440.05 explains the method by which corporate officers and other business owners may exempt themselves . . .

HOGAN, v. DEERFIELD CORPORATION, a d b a, 605 So. 2d 979 (Fla. Dist. Ct. App. 1992)

. . . provided in s. 440.38 or, if applicable, provide a written certificate of election issued under s. 440.05 . . .

MANDICO, v. TAOS CONSTRUCTION, INC., 605 So. 2d 850 (Fla. 1992)

. . . exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in s. 440.05 . . . of the provisions of this chapter with respect to such person, notwithstanding the provision of s. 440.05 . . .

G. GUEVARA v. I. DIEHL, d b a, 592 So. 2d 379 (Fla. Dist. Ct. App. 1992)

. . . Appellee had not waived his exemption as an employer pursuant to section 440.05. . . .

B B STEEL ERECTORS v. BURNSED,, 591 So. 2d 644 (Fla. Dist. Ct. App. 1991)

. . . under this chapter by filing written certification of the election with the division as provided in s. 440.05 . . . partner is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 . . . provisions of this chapter by filing written notice of the election with the division as provided in s. 440.05 . . . provisions of this chapter by filing a written notice of the election with the division as provided in s. 440.05 . . .

DOBBINS v. WEBER P. A. a, 585 So. 2d 1143 (Fla. Dist. Ct. App. 1991)

. . . officer in Streeter did not elect to exercise the exemption from coverage as provided for in section 440.05 . . . Here, appellee rejected coverage under the Worker’s Compensation Act pursuant to section 440.05. . . . SECTION 440.11, FLORIDA STATUTES (1983) EXTEND TO A CORPORATE OFFICER WHO ELECTS, PURSUANT TO SECTION 440.05 . . .

BEDSOLE, v. HANCOCK- HAZLETT CONSTRUCTION, 559 So. 2d 639 (Fla. Dist. Ct. App. 1990)

. . . specifically elects to be included in the definition of employee by filing notice as provided in section 440.05 . . .

SWARTOUT, v. LEWIS ASSOCIATES DEVELOPMENT CORP., 548 So. 2d 804 (Fla. Dist. Ct. App. 1989)

. . . and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05 . . . under this chapter by filing written certification of the election with the division as provided in s. 440.05 . . .

OLIVER, v. SEVERANCE,, 542 So. 2d 408 (Fla. Dist. Ct. App. 1989)

. . . See § 440.05, Fla.Stat. (1987). . Kan.Stat.Ann. §§ 60-603(3], 60-604(2] (Supp. 1973). . . .

SUNSHINE ACE HARDWARE v. E. GRAY,, 541 So. 2d 1236 (Fla. Dist. Ct. App. 1989)

. . . claimant received the earnings as a sole proprietor who did not make an election pursuant to section 440.05 . . .

ILEY v. LINZEY,, 531 So. 2d 1361 (Fla. Dist. Ct. App. 1988)

. . . He had not elected coverage under the act pursuant to section 440.05. . . .

ANNA MARIA FIRE CONTROL DISTRICT v. ANGELL,, 528 So. 2d 456 (Fla. Dist. Ct. App. 1988)

. . . elects to be included in the definition of employee by filing notice thereof as provided in section 440.05 . . . Section 440.05(2), Florida Statutes (1979), provides that “every sole proprietor ... who elects to be . . . the definition of “employee” by filing notice to that effect with the division in Tallahassee per § 440.05 . . .

In A. MIKRUT,, 79 B.R. 404 (Bank. W.D. Wis. 1987)

. . . Income 1040 07/29/85 3,018.48 1,555.90 3,062.40 10/24/85 Dane Co. 12/31/82 Income 1040 07/15/85 0.00 440.05 . . .

SOUTHERN RACK AND LADDER, INC. Co. v. D. SEXTON,, 474 So. 2d 847 (Fla. Dist. Ct. App. 1985)

. . . Section 440.05, Florida Statutes, provides that: r (1) Every corporate officer who elects not to accept . . . The carrier suggests that § 440.05(1) establishes the exclusive method by which a corporate officer may . . . of the provisions of this chapter with respect to such person, notwithstanding the provision of s. 440.05 . . . such exemption and thereby accept the provisions of this chapter by giving notice as provided in s. 440.05 . . . refers to a notice provision, unrelated to the corporate officer election, which was included in § 440.05 . . .

VANVOORST, v. RUBLE TRUCKING COMPANY,, 456 So. 2d 1289 (Fla. Dist. Ct. App. 1984)

. . . the Workers’ Compensation Law by filing a written certification as provided in §§ 440.02(2)(b) and 440.05 . . .

BOYD- SCARP ENTERPRISES, INC. v. SAUNDERS d b a, 453 So. 2d 161 (Fla. Dist. Ct. App. 1984)

. . . See, Sections 440.02(2)(c), 440.05, Florida Statutes (1981). . . .

GULFSTREAM LAND DEVELOPMENT CORP. v. J. WILKERSON,, 420 So. 2d 587 (Fla. 1982)

. . . acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 . . .

RAVENSWOOD- GRIFFIN VOLUNTEER FIRE DEPARTMENT v. C. NEWMAN, 422 So. 2d 321 (Fla. Dist. Ct. App. 1982)

. . . Appellants argue that Newman failed to show that as a partner, he had elected coverage pursuant to Section 440.05 . . .

KEY v. GOLEY, 402 So. 2d 80 (Fla. Dist. Ct. App. 1981)

. . . elects to be included in the definition of employee by filing a notice thereof as provided in Section 440.05 . . . Section 440.05(2), Fla.Stat. (1977). . . .

SHERIDAN v. GREENBERG, 391 So. 2d 234 (Fla. Dist. Ct. App. 1980)

. . . a workmen’s compensation policy, notice must be filed with the Division of Worker’s Compensation, § 440.05 . . .

CASEY KEY INVESTMENT CORPORATION, d b a s v. S. ARBUCKLE,, 378 So. 2d 841 (Fla. Dist. Ct. App. 1979)

. . . .-02(2)(b) and 440.05(1), Florida Statutes (1975). . . . Section 440.05(1), Florida Statutes (1975) provides that: Every corporate officer who elects not to accept . . . such exemption and thereby accept the provisions of this chapter by giving notice as provided in § 440.05 . . . from coverage, it was necessary that Arbuckle file another notice of exemption pursuant to Section 440.05 . . . provides that an exemption from coverage may be revoked by giving notice in accordance with Section 440.05 . . .

W. ALLEN, v. ESTATE CARMAN, 281 So. 2d 317 (Fla. 1973)

. . . such exemption and thereby accept the provisions of this chapter by giving notice as provided in § 440.05 . . . Fla.Stat. § 440.05, F.S.A., deals with notice of waiver of exemption. . . . For that reason, Fla.Stat. §§ 440.04 and 440.05 F.S.A., then in force included provisions relative to . . . nonacceptance of the Act (440.04[1]) and notice of nonacceptance (440.05 [2]). . . . Fla.Stat. § 440.05, F.S.A., was amended in 1970 (see footnote 1) to eliminate the right of the employee . . .

A. MULLARKEY, B. a v. FLORIDA FEED MILLS, INC. a, 268 So. 2d 363 (Fla. 1972)

. . . .-02(2) (a), defining a minor child as an “employee”; §§ 440.03 [1969], 440.05 [1969] and 440.07 [1969 . . . accept or reject coverage at the time of employment, under authority of Fla.Stat. §§ 440.03 (1969), 440.05 . . .

W. ALLEN, v. ESTATE CARMAN,, 446 F.2d 1276 (5th Cir. 1971)

. . . exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in § 440.05 . . . acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 . . . bound thereby, unless he shall have given prior to the injury, notice to the contrary as provided in § 440.05 . . .

W. WAINWRIGHT, v. WAINWRIGHT, INC., 237 So. 2d 154 (Fla. 1970)

. . . acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 . . .

LEWIS, v. SPERRY AUTO SALES, 224 So. 2d 293 (Fla. 1969)

. . . Industrial Claims was without jurisdiction because it had filed a Notice of Rejection pursuant to Section 440.05 . . . employer had elected not to accept the provision of Chapter 440, Florida Statutes, pursuant to Section 440.05 . . .

GREAT ATLANTIC PACIFIC TEA COMPANY, a v. LANTERI, 221 So. 2d 158 (Fla. Dist. Ct. App. 1969)

. . . See: § 440.05, Fla.Stat., F.S.A. . . .

GOLDSTEIN, v. GRAY DECORATORS, INC., 166 So. 2d 438 (Fla. 1964)

. . . Section 440.05(2), (3), F.S.A., provides that he may exercise this election by delivering written notice . . . this testimony was properly admitted, and that the alleged waiver was in the form required by Section 440.05 . . .

WESTINGHOUSE ELECTRIC SUPPLY CO. v. W. REAGAN W. REAGAN v. WESTINGHOUSE ELECTRIC SUPPLY CO., 159 So. 2d 222 (Fla. 1963)

. . . Under Section 440.05, Florida Statutes, an employee may waive all of the benefits of the Workmen’s Compensation . . .

J. GRICE, v. SUWANNEE LUMBER MANUFACTURING COMPANY,, 113 So. 2d 742 (Fla. Dist. Ct. App. 1959)

. . . . § 440.05, F.S.A. . F.S. § 440.07, F.S.A. . Chamberlain v. . . .

W. DUCKWORTH, R. C. L. B. Jr. N. B. H. v. JAMES, a, 267 F.2d 224 (4th Cir. 1959)

. . . ordinance making appropriations for the city budget for the calendar year 1959 in the sum of $36,887,-440.05 . . .

J. MACARAGES, v. RAYMOND CONCRETE PILE COMPANY, HERRING, v. RAYMOND CONCRETE PILE COMPANY,, 220 F.2d 891 (5th Cir. 1955)

. . . Hardy, 139 Fla. 142, 190 So. 478 for the proposition that where, under the terms of sections 440.05 and . . .

HENDRY v. GALVIN- WOHL,, 3 Fla. Supp. 1 (Fla. Industrial Comm'n 1952)

. . . exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in §440.05 . . . And in section 440.05,: Notice of non-acceptance and waiver of exemption. — Notice of nonacceptance of . . .

GEORGE VANLANDINGHAM H. B. DUDLEY, L. v. FLORIDA POWER LIGHT COMPANY, a, 154 Fla. 628 (Fla. 1944)

. . . This is so inasmuch as either may elect not to come under the Act, Sec. 440.05, F.S. ’41, F.S.A. . . .