Strother v. Morrison Cafeteria

• Decision Date: 24 April 1980
• Docket Number: No. 56149,56149
• Citation: 383 So.2d 623
• Parties: Blanche STROTHER, Petitioner, v. MORRISON CAFETERIA et al., Respondents.
• Court: Florida Supreme Court

Page 623

383 So.2d 623

Blanche STROTHER, Petitioner, v. MORRISON CAFETERIA et al., Respondents.

No. 56149.

Supreme Court of Florida.

April 24, 1980.

Michael Brumer of Brumer, Moss, Cohen & Rodgers and Susan Goldman, Miami, for petitioner.

Eugene N. Betts, Fort Lauderdale, for respondents.

ALDERMAN, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing the order of the judge of industrial claims and denying claimant Blanche Strother workers' compensation on the basis that while her injuries did arise out of her employment, they were not sustained in the course of her employment. The commission rendered a contrary decision in Sixty-Seven Liquors v. Gamel, IRC No. 265-25-3664 (IRC Jan. 1979), cert. denied, 383 So.2d 628, No. 56,173 (Fla., 1980), and awarded compensation to a doorman-bouncer who had been injured away from the employer's premises and outside his working hours on the ground that his injury was clearly shown to have arisen out of his employment.

The sole issue in this case of first impression is whether Strother sustained a compensable accident when she was assaulted outside the time and space limits of her employment. We hold that Strother's injuries, which had their origin and cause entirely within the course of her employment and which arose out of her employment, are compensable.

Strother, a cashier at Morrison's Cafeteria, was charged with the responsibility of handling the payment of food bills from customers from mid-afternoon to closing at 9 p. m. each night. Although not a part of her regular employment, on two occasions she drove the cafeteria's manager to the bank to deposit the day's receipts. On the two days preceding the incident which resulted in the injury for which she now seeks workers' compensation, Strother observed two men in the cafeteria who were not customers or employees. On the evening of the incident, she noticed the same two men enter the cafeteria in the same manner as they had entered on the two previous days. This evening, she left work and drove directly home (some fifteen or twenty minutes' drive from the cafeteria) where she was assaulted by and her purse was taken by one of the men whom she had observed in the cafeteria.

The judge of industrial claims determined that Strother was injured in a compensable accident since the circumstances of her employment exposed her to a greater risk than that of a regular cashier and that the assault arose out of and in the course of her employment. The judge accepted Strother's testimony that she was followed and attacked by the same men who were at the cafeteria, and he concluded that they thought she was carrying the cafeteria's money since they demanded "the money or deposits."

Relying on Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972), Strother argues that her injuries are compensable because they "arose out of and in the course of employment" as this language is defined by Hill. She submits that her injuries arose out of and solely because of conditions connected with her employment.

Respondents, on the other hand, rely on Bituminous Casualty Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378 (1941), and Southern Bell Telephone and Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977), and recite that to be compensable, the assault must not only have arisen out of Strother's employment but also must have occurred within the time and space limits of her employment. Respondents further contend that this case does not fall within the special hazard exception to the going and coming rule.

Section 440.02(6), Florida Statutes (1977), defines injury, for purposes of the workers' compensation act, as "personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury." Our early decision of Bituminous Casualty Corp. v. Richardson construed this language as requiring a showing that the injury both arouse out of employment and occurred in the course of employment. "Arising out of" was defined to mean the origin or cause of the accident. "In the course of" employment was defined as the time, place, and circumstances under which the accident occurs. We stated as a general rule that the accident must occur while the employee is acting within the duties of his employment or in some act incidental thereto. See also Foxworth v. Florida Industrial Commission, 86 So.2d 147 (Fla.1956), wherein we stated that compensation coverage is confined to an injury arising out of and in the course and scope of employment and both circumstances must appear before compensation can be awarded; Travelers Ins. Co. v. Taylor, 147 Fla. 210, 3 So.2d 381 (1941), wherein we held that arising out of and in the course of employment are used conjunctively, and it is indispensable to recovery that both of them be established; Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495 (1940), wherein it was held that to arise out of and in the course of employment, an injury must occur within the period of employment at a place where the injured employee may reasonably be and while he is reasonably fulfilling duties of his employment or is engaged in something incidental thereto.

More recently, in Southern Bell Telephone and Telegraph v. McCook, we reaffirmed our decision of Bituminous Casualty Corp. v. Richardson and explained that "arising out of" and "in the course of" were separate elements which must be proved to establish a compensable accident. In McCook, we were concerned with the "arising out of" element rather than "in the course of." Relying on Suniland Toys & Juvenile Furniture, Inc. v. Karns, 148 So.2d 523 (Fla.1963), we defined "arising out of" to mean originating in some risk connected with employment or flowing as a natural consequence from the employment.

Although in several decisions, we have referred to the distinct and separate nature of the two elements of "arising out of" and "in the course of," we have also, in other decisions, tended to merge these two factors together into a test of work connectedness. In Fidelity & Casualty Co. of New York v. Moore, we said:

The cases generally hold that for an injury to arise out of and in the course of one's employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence. Another definition widely approved is that the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.

196 So. at 496 (emphasis added).

Then in Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941), we allowed recovery to a deputy sheriff who, while on his way to work, was struck by a delivery truck and sustained injury to his leg which ultimately resulted in its amputation. We determined that by the nature of his employment, the deputy was continuously under a duty to protect the peace and safety of the community and to apprehend those guilty of its violation. In explanation of our result, we declared that an injury must both arise out of and be in the course of employment and proceeded to recite the alternative definitions for arising out of and in the course of one's employment which we had earlier enunciated in Fidelity & Casualty Co. of New York v. Moore.

Again, in Suniland Toys & Juvenile Furniture, Inc. v. Karns, we relied on the alternative definitions established by Fidelity & Casualty Co. of New York v. Moore to award compensation to an employee who had sustained an allergic reaction to a typhoid inoculation administered at a physician's office. We said: "(T)o be compensable, an injury must have originated in some risk connected with the employment or flowing as a natural consequence from the employment." 148 So.2d at 524.

In our 1972 decision of Hill v. Gregg, Gibson & Gregg, Inc., we again emphasized the alternative nature of the definitions established in Fidelity & Casualty Co. of New York v. Moore. We quashed the commission's order which denied compensation and held that an assault which arose out of Hill's employment was compensable even though it did not occur on the employer's premises or during working hours, and we said:

From their orders, it appears the Judge of Industrial Claims and the Industrial Relations Commission looked only to the last definition (i. e., the injury must occur within the period of employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it) and concluded Petitioner could not recover because he was not injured while at his job site working and benefiting his employer. While such a conclusion is proper under the fourth Moore definition, it is not determinative of the issue. It is necessary to also consider the first three definitions. All are alternatives. Sweat v. Allen, 1941, 145 Fla. 733, 200 So. 348.

260 So.2d at 195.

It is apparent that our prior decisions have developed inconsistent interpretations of the statutory language "arising out of and in the course of employment." One line of cases establishes a two-prong test of work connectedness where both prongs must be separately proven. The other line of cases effectually develops an arising out of and an originating in the course of employment test where either element may suffice. The present case has...