Blount v. State Road Dept.

• Citation: 87 So.2d 507
• Parties: Irma E. BLOUNT, Claimant, Widow of Dan J. Blount, Deceased, Employee, Petitioner, v. STATE ROAD DEPARTMENT of Florida and Florida Industrial Commission,Respondents.
• Decision Date: 02 March 1956
• Court: United States State Supreme Court of Florida

Page 507

87 So.2d 507

Irma E. BLOUNT, Claimant, Widow of Dan J. Blount, Deceased, Employee, Petitioner, v. STATE ROAD DEPARTMENT of Florida and Florida Industrial Commission,Respondents.

Supreme Court of Florida, En Banc.

March 2, 1956.

On Rehearing May 18, 1956.

Thompson, McDonald & Moran, Tampa, for petitioner.

E. P. Barber, Jacksonville, for respondent State Road Department.

Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondent Florida Industrial Commission.

DREW, Chief Justice.

The facts in this workmen's compensation case are not disputed.

Dan J. Blount, the deceased employee of the State Road Department, was classified as a maintenance engineer by the Department. He had supervision of maintenance in several counties in the vicinity of Tampa. His salary was $500 per month; he had no specific hours of work but was on call twenty-four hours per day. He had a right to use, and did use from time to time, various motor vehicles of the State Road Department located at the Department's maintenance yard at Tampa. He was the custodian of all of the four counties that he covered according to the testimony of his immediate superior and he was responsible twenty-four hours in each day for any emergency that might come up as to wrecks or broken glass on the road, dead cows, washed out bridges and things of that nature.

On the day of the fatal accident, he returned to the base of his operations in Tampa about 5:30 in the afternoon. He worked at his desk until about 9:00 o'clock that evening. He then got in a pick-up truck and started toward his home by the most direct and convenient route. Shortly thereafter, he was killed in an accident between the vehicle he was driving and another vehicle.

Claim was duly filed and hearings conducted before the Deputy Commissioner where the above evidence was produced, Deputy Commissioner denied compensation which is admitted by the respective parties to this appeal to be without conflict. The Deputy commissioner Denied compensation finding and holding:

'4. That on November 18, 1954, in Hillsborough County, Florida, the employee Dan J. Blount was killed in a collision between a pick-up truck, the property of the State Road Department of Florida, which he was driving, and a motor bus.

'5. That at the time of the accident, the decedent was an employee of the State Road Department of Florida, classified as a maintenance engineer, having supervision of maintenance in several counties in this vicinity; that his salary was $500.00 per month; that the employer furnished transportation; that the employee had no specific hours of work, but was on call at all times.

'6. That at the time the accident occurred, the decedent was on his way home, having completed his duties for the time, and was not traveling in answer to any specific call or assignment; that the accident cannot be said to have been 'in the course of the employment' as required by the Florida Workmen's Compensation Act, and is therefore not compensable.'

We are of the view that the Deputy Commissioner misconceived the legal effect of the evidence and that the Full Commission erred in approving the order of the Deputy Commissioner.

A person injured while going to and coming from work as a general rule is not protected by the provisions of the Workmen's Compensation Act, F.S.A. § 440.01 et seq. This is commonly referred to in the books as the 'going and coming' rule. To this rule, however, there are many exceptions. Obviously, in those cases where the journey to and from work is a part of the service of the employee to the employer, the employee is protected by the provisions of such act. Larson's Workmen's Compensation Laws, Volume 1, paragraph 16, page 222. The exception to this rule is more commonly applied to injuries sustained by traveling salesmen but is not limited to such class. Other types of work may well fall within the exception, the test being primarily one of fact.

Another exception to the 'going and coming' rule is where the journey is made in the employer's conveyance, the basic reason being that the risks of the employment continue throughout the journey. See Larson's Workmen's Compensation Laws, Volume 1, paragraphs 17, 17.10, page 233; 58 Am.Jur. Workmen's Compensation, paragraphs 217, 218. Whether the exception just announced which protects the workman in his journey to or from work when made in the employer's conveyance is broad enough to cover a situation such as that with which we are here involved where the conveyance was furnished by the employer but driven by the employee, the Supreme Court of the United States in Cardillo v. Liberty Mut. Ins. Co., 1946, 330 U.S. 469, 67 S.Ct. 801, 809, 91 L.Ed. 1028, held that in either case the result was the same. There it was held that whether the employer supplies the vehicle, hires it of an independent contractor, makes arrangements with a common carrier or reimburses his employee for the use thereof is immaterial. The Court summarized its view by stating:

'In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed. From the statutory standpoint, the employer is free to carry out its transportation obligation in any way the parties desire; and the rights of the employees to compensation are unaffected by the choice made.'

As to whether an agreement existed to furnish the transportation to Blount and whether the service of going to work and returning from it was within the scope of his employment and covered by the Act, this Court in Bowen v. Keen, 154 Fla. 161, 17 So.2d 706, 709, adopted with approval the language of the Supreme Court of the United States in Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245, viz.:

'While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service, and hence within the purview of the Compensation Act.' (Emphasis added.)

In the instant case the established facts concerning which there is no controversy, are sufficient to show that going and coming from work under the circumstances shown in this record was within the scope of the employment and covered by the terms of the act. The employee was required to answer any call from his superior twenty-four hours of the day. The very nature of his duties requires him to go to and from all sorts of situations within the realm of his authority. The proper performance of his duties would require that transportation suitable to the trip should be immediately available in the event of emergency calls. Clearly, under such circumstances, the employee in this case was acting within the scope of his employment and in the furtherance of his master's business when the fatal accident occurred.

This Court held similar employment to be an exception to the 'going and coming' rule in Sweat v. Allen, 145 Fla. 733, 200 So. 348, 349. There we were dealing with a deputy sheriff, performing the functions of a jailer with specific...