Bowen v. Keen

• Decision Date: 04 February 1944
• Citation: 154 Fla. 161,17 So.2d 706
• Parties: BOWEN et al. v. KEEN et al.
• Court: Florida Supreme Court

17 So.2d 706

154 Fla. 161

BOWEN et al. v. KEEN et al.

Florida Supreme Court

February 4, 1944

Rehearing Denied April 18, 1944.

Appeal from Circuit Court, Leon County; John A. H Murphree, judge.

J. Lewis Hall, W. K. Whitfield, B. K. Roberts, and Rodney L. Durrance, all of Tallahassee, for appellants.

Caldwell & Parker, Millard Caldwell, Julius F. Parker, and Leo L Foster, all of Tallahassee, for appellees.

CHAPMAN, Justice.

This is a workmen's compensation case originating as a judicial case in the Circuit Court of Leon County, Florida. The record reflects the following material facts. J. W. Bowen, a young man, around 7 o'clock a. m., on February 25, 1942, when traveling or walking a highway from his home on the outskirts of Tallahassee to the place of business of the Pendleton Grain & Provision Company, his employer, was struck and killed by a motor vehicle. When he met his death his compensation was $13.85 per week and his employment had existed from January 5, 1942, until the date of his death. His mother and a sister were shown as dependents.

Some of the duties of the deceased's employment were to solicit orders for his employer; sell feed and other articles of merchandise for sale around the business; he delivered feed to the various customers of his employer, using the latter's truck; when delivering merchandise and while away from the place of business, he solicited business from the several customers for his employer; he was required to begin work around 8 o'clock each morning, except when discharging the duties of caring for an incubator for hatching chickens, operated in the employer's business; the deceased rendered twenty-four hour service for his employer when caring for the incubator and had his meals there and slept about the business; on the night of February 23, 24, 1942, he was on twenty-four hour service incident to the incubator, and when leaving the business around 9:30 or 10 p. m. on the 24th of February, 1942, his employer directed that he return to the place of business early next morning, obtain the truck so that two trips in behalf of his employer could be made from Tallahassee to Thomasville on the 25th of February, when he lost his life. Pursuant to the instructions of his employer he arose approximately an hour earlier, left his home, and was on the way to obtain the truck and go to Thomasville when struck down and killed around 7 o'clock on the highway by a truck between the deceased's home and his employer's place of business.

It was the view, and holding of the lower court, that the deceased was only on his way to work when he met his death; the fact that he had been instructed by his employer the previous evening 'to come earlier than usual' did not subject the deceased to any greater hazards than ordinarily attended when on the way to work from his home because no duties or obligations in behalf of his employer arose until he reached the employer's place of business and for these several reasons the death of the employee, as a matter of law, did not arise out of and within the scope of the said employment.

Section 440.09, Fla.Stats.1941, F.S.A., provides that compensation shall be payable under said Chapter in respect of disability or death resulting from an injury arising out of and in the course of the employment. We have, since the enactment of the statute, supra, in construing the statute, defined the scope of employment as a compensable and considered facts on appeal here which we held were not compensable or within the statute.

In the case of Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496, we had before us the question of what was meant by the terms of the statute, supra, and to make an injury compensable it must 'arise out of and in the course of one's employment', and 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.'

We held therein that no recovery could be had because the employee was not responding to a business call of his employer but engaged in a personal mission when the injury and death occurred.

In the case of Sweat v. Allen, 145 Fla. 733, 200 So. 348, we held that, as a general rule, injuries sustained by employees when going to or returning from their regular places of work are not deemed to arise out of and in the course of their employment, but exceptions have been engrafted upon the rule and the criterion of its applicability depends on the nature and circumstances of the particular employment and no exact formula could be laid down as a guide for all the cases. We held that the facts in Sweat v. Allen, supra, were controlled by the exception to the general rule above stated. Counsel for appellant contend that the facts here involved fall within and are controlled by the exception to the general rule laid down in Sweat v. Allen, while appellee contends that the general rule expressed therein should be applied as was done by the lower court and similar conclusions reached.

Whether or not an employee, in going to or from the place of his employment, is in the line of his employment will depend largely on the particular facts and circumstances of each case. There must necessarily be a line beyond which the liability of an employer cannot continue, and the question as to where that line is to be drawn has been held to be usually one of fact. See Schneider on Workmen's Compensation Law, Vol. 1, 2d Ed., par. 266, p. 776.

Par. 269, Schneider, supra, page 799, the rule is thusly stated: 'Going to and From Work Where Employment Is Not Limited to Fixed Hours.--An employee whose hours of work were not limited to any definite time was called upon to convey other employees to an outside job, and while returning his auto skidded and turned over and he was killed. The court, in holding that the accident arose 'out of and in the course of the employment', said: 'When a member of the firm directed Horace Rogers to take Mr. Walke to the Dolan camp, it was his duty to obey. There was no obligation resting on him to inquire whether the performance of that duty would inure to the benefit of the firm. That question was no concern of his. It would be an unjust and unreasonable rule that would have required him to decide that question at his peril. The presumption is that the master knows his own business, and it is the exclusive province of the master to determine questions of that character for himself.''

The case of Altman v. Kaufmann Realty Co., 110 Pa.Super. 178, 167 A. 394, involved an injury to an employee. Altman occupied the position of all-round man and was subject to call by his employer at any hour of the day or night to perform special missions on behalf of his employer.

The employer called Altman on August 30, 1930, and instructed him to do certain work on September 2d. Altman left home on September 2d earlier than his usual custom to look after a special mission for his employer and as he stepped off a trolley was struck and killed by an automobile. The court held that he was killed while actually engaged in the furtherance of his employer's business.

Industrial Commission of Ohio v. Murphy, 50 Ohio App. 148, 197 N.E. 505, 506, involved the claim of an employee for compensation. Murphy worked in a funeral home, trimmed caskets, acted as houseman, and went to homes and hospitals in connection with his employer's business. He lived some distance from the place of business and directions to him were given over the telephone. He had no regular hours of employment, but was subject to call. He was called over the phone and directed to report at once. He took a trolley and on leaving it was hit by a motor car. It was contended that the actual employment did not begin until Murphy reached the funeral home. The court held that this was not a 'coming and going case' where the employee has a fixed time to appear at his employer's place of business; the employee, when carrying out the directions of the employer received over the phone by reporting at the funeral home, was promoting the employer's interests; he was not going to the regular place of work at a regular time. He was not permitted to dispose of his time as he saw fit until a regular working hour at a regular place of employment; he could not engage in any other enterprise after receiving directions; he could not go to any other place but was commanded to report at the funeral home.

Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245, involved the compensability of an injury received by an employee sustained while on his way to work. Voehl's regular hours were from 7:30 a. m. to 5:30 p. m., and he was on duty all the time 'on our call'. The employer maintained a 24-hour service and Voehl was subject to call. It was Voehl's custom on each Sunday to go to his employer's place of business for the purpose of clearing it of debris in accordance with his duties of employment. His compensation was so much per hour from the time he left home until his return, with an allowance for transportation. He was injured in an automobile collision when traveling on Sunday from his home to his employer's place of business.

The court, in sustaining Voehl's claim, in part, said (288 U.S. 162, 53 S.Ct. at page 382, 77 L.Ed....