Cantor v. Cochran

• Decision Date: 16 March 1966
• Docket Number: No. 34342,34342
• Citation: 184 So. 2d 173
• Parties: J. Edward CANTOR, Saul Cantor and Rose Cantor, d/b/a Cantor's Candy & Tobacco Company and Commercial Union Insurance Company of New York, Petitioners, v. Robert COCHRAN and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 173

184 So.2d 173

J. Edward CANTOR, Saul Cantor and Rose Cantor, d/b/a Cantor's Candy & Tobacco Company and Commercial Union Insurance Company of New York, Petitioners, v.Robert COCHRAN and the Florida Industrial Commission, Respondents.

No. 34342.

Supreme Court of Florida.

March 16, 1966.

Knight, Underwood, Peters & Hoeveler and Joseph V. Niemoeller, Miami, for petitioners.

Jack H. Polan, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.

ROBERTS, Justice.

The petitioners owned a self-service wholesale grocery store where small retailers came to buy stock for their stores.The customer selected his own merchandise and loaded it onto a dolly from the shelves.He then checked out at a cash register and paid for his purchases.The claimant and another man waited at the register area and offered to help the customer load his purchases into his car or truck.The tips received were the only compensation received by the claimant for this service.The claimant was injured when the trunk lid of an automobile he was loading fell across his back and he seeks compensation.He had been engaged in this work at the petitioners' store from 1957 until after he was hospitalized in 1964 at which time he was told by the petitioners not to return to the store.

The deputy held that the claimant was an independent contractor, not an employee of the petitioners.The Full Commission, with one dissenting, reversed the deputy on the ground that he had misconstrued the legal effect of the evidence.

The petition for certiorari filed in this court charges that the Full Commission substituted its own findings for those of the deputy.We do not so find.This, rather, is a case like Toney Builders, Inc. v. Huddleston, Fla.1963, 149 So.2d 38, wherein the decision of the controversy depends not on disputed facts but upon the legal relationship that certain undisputed facts engendered.

One of these facts is that in March of 1962, after claimant had been engaged in helping petitioners' customers for more than four years, he signed, at petitioners' direction, a statement that his work was 'independent of and in no way under the control or direction of the Cantor Wholesale.'While the obvious purpose to be accomplished by this document was to evince an independent contractor status, such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other.Magarian v. Southern Fruit, Distributors, 1941, 146 Fla. 773, 1 So.2d 858.

Magarian and Miami Herald Publishing Co. v. Kendall, Fla., 1956, 88 So.2d 276, both adopt the tests formulated by 1 Restatement of the Law, Agency(2nd ed.) § 220 in determining whether an employer-employee relationship exists.The comment on this Section states that the factors set out in Subsec. (2) of § 220 are all to be considered in determining the question which will depend on the existence vel non of a sufficient group of favorable factors to establish the relation.

We will, therefore, set out the tests as found in the Restatement, supra, and then, following each, the appropriate facts established before the deputy:

'(a) The extent of control which, by the agreement, the master may exercise over the details of the work.'

The record established that the claimant was to report for work at 5 a.m. and remain until 3 p.m.; that when the claimant wanted time off he arranged for a substitute and secured petitioners' approval; that claimant had no choice as to the customers he would assist.But the most telling factor establishing control was that petitioners fired the claimant without giving rise to a cause of action for breach of contract.As was said in Goldstein v. Gray Decorators, Inc., Fla.1964, 166 So.2d 438, andLindsey v. Willis, Fla.App.1958, 101 So.2d 422: 'The power to fire is the power to control.'

See also1 Larson, Workmen's Compensation Law § 44.35 which states:

'The power to fire is the power to control.The absolute right to terminate the relationship without liability is not consistent with the concept of independent contractor, under which the contractor should have the legal right to complete the project contracted for and to treat any attempt to prevent completion as a breach of contract.'

'(b) whether or not the one employed is engaged in a distinct occupation or business.'

Here the claimant was occupied in loading groceries as contrasted with such distinct occupations as plastering or plumbing, for example.

'(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.'

No...