Boyd v. Florida Mattress Factory, Inc., 30836

• Decision Date: 12 April 1961
• Docket Number: No. 30836,30836
• Citation: 128 So.2d 881
• Parties: Larry Nash BOYD, Petitioner, v. FLORIDA MATTRESS FACTORY, INC. and Standard Accident Insurance Company, Respondents.
• Court: Florida Supreme Court

Page 881

128 So.2d 881

Larry Nash BOYD, Petitioner, v. FLORIDA MATTRESS FACTORY, INC. and Standard Accident Insurance Company, Respondents.

No. 30836.

Supreme Court of Florida.

April 12, 1961.

Rehearing Denied May 9, 1961.

John P. Corcoran, Jr., of Corcoran & Henson, Tampa, for petitioner.

David G. Hanlon, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

DREW, Justice.

Petitioner Larry Nash Boyd seeks to have reviewed an order of the Florida Industrial Commission, dated September 16, 1960, affirming an order of the deputy commissioner denying his claim for medical expense, compensation and attorney's fees. The full commission in concise terms analyzed the profound findings of the deputy commissioner by stating:

'This cause came on to be heard upon application of the claimant for review of an Order of the Deputy Commissioner dated February 17, 1960, denying and dismissing a claim for workmen's compensation benefits on the ground that claimant was injured as a result of horseplay which he himself initiated, and by his initiation of said horseplay he voluntarily deviated from his employment.'

Our position is clear:

'This Court upon review of a final order of the Full Commission has the duty of determining whether the Commission properly fulfilled its function with reference to the evidence to support the findings and the law applied to the findings * * *.' ¹

The full commission having affirmed the order of the deputy commissioner on authority of United States Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741, it specifically stated the order accorded with the essential requirements of the law. This ruling does not reach us with a presumption of correctness and is to be tested by us in this judicial review.

While the basic facts of an objective nature are not in dispute, the subjective elements from which the facts arise were subject to contradiction in certain respects. At the hearing the claimant testified that at the time of his accident and injury on March 4, 1959, he was an employee and officer of the respondent corporation. The corporation owned a pleasure boat which was used to entertain customers and suppliers of the corporation. On the day of the accident, the claimant had entertained a supplier and creditor by taking him fishing. The supplier's representative, Park, had been insistent they go out in the boat, and in order to maintain good business relations the claimant and Park went out but with not much success. They returned to the dock where the boat was docked. While docked, claimant was transferring some equipment from an old storage bag to a new one when he found some cherry bomb firecrackers. These were used for the purpose of catching minnows, and have a waterproof fuse allowing for an underwater explosion. Claimant lit the bomb and threw it under the dock stating as his reason:

'* * * It was an unconscious, automatic act. You have no rhyme or reason for doing it, you don't know why you do it, or anything else. It was just one of those things that you do automatically and unconsciously.'

The explosion of the bomb gave rise to immediate total loss of vision of the left eye. There was some degree of levity according to witnesses at the time of the accident and the findings of the deputy so reflect the testimony to that effect on the part of said witnesses.

The deputy found that until the exact moment the claimant began to light and throw the cherry bomb, claimant was in the course of his employment. At that specific moment, there was a deviation from the employment as a result of which the accident and injury occurred.

These facts present a case of first impression in this State. Larson in his treatise on Workmen's Compensation discusses one among several approaches which consider 'horseplay' as entitled to be judged according to the same standards of extent and duration of deviation that are accepted in other fields so that if an insubstantial deviation arises which does not necessitate the complete abandonment of the employment and the concentration of all energies for a substantial part of the working time, the incident remains a simple human diversion. ² Larson, outlining another theory, the 'method' approach, where the horseplay takes the form of a 'whimsical' method of performing the duties of employment, states there is a respectable body of law supporting the general idea that the act remains within the course of employment. The playfulness, according to Larson, should be no more material in the compensation scheme than negligence, thoughtlessness, ineptitude and foolishness in method.

Cases from other jurisdictions on similar facts are quite revealing. In Pedersen v. Nelson, 1944, 267 App.Div. 843, 45 N.Y.S.2d 784, the Court on appeal from an award of the Industrial Board, allowed recovery to claimant who was a handyman, janitor and carpenter. While working in a house he saw and lighted a firecracker and was injured. The Court ruled he was entitled to an award.

In Miles v. Gibbs & Hills, Inc., 250 N.Y. 590, 166 N.E. 335, claimant while walking along a railroad track in the normal course of his employment, struck a torpedo on the track with a hammer. The explosion caused a piece of metal to...