Central Air Conditioning Co. v. Garren, 39493

• Decision Date: 23 September 1970
• Docket Number: No. 39493,39493
• Citation: 239 So.2d 497
• Parties: CENTRAL AIR CONDITIONING COMPANY and Continental Insurance Company, Petitioners, v. Edgar J. GARREN and the Industrial Relations Commission, Respondents.
• Court: Florida Supreme Court

Page 497

239 So.2d 497

CENTRAL AIR CONDITIONING COMPANY and Continental Insurance Company, Petitioners, v. Edgar J. GARREN and the Industrial Relations Commission, Respondents.

No. 39493.

Supreme Court of Florida.

Sept. 23, 1970.

Carl E. Jenkins, of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for petitioners.

Richard A. Sicking, of Kaplan, Dorsey, Sicking & Rodenberg, Miami, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

ROBERTS, Justice.

Claimant-Edgar Garren was employed by petitioner-Central Air Conditioning Company to install and construct air conditioning equipment. Normal working hours were from eight o'clock A.M. to four-thirty P.M. but Garren was on call twenty-four hours a day, seven days a week. He was furnished to truck for transportation in the event he was needed in an emergency and the employer paid the insurance and operating expenses.

On the day of the accident, which precipitated these proceedings, the employee finished work at approximately three-fifteen P.M. and requested use of the truck to go to a service station to see about his personal automobile. Later he went to the Veteran of Foreign Wars Club, waited until almost eight P.M. for his friend to finish a game of pool and then started home in the company truck with the friend. While driving on the same route he normally took home from his job with the employer he was involved in an accident and sustained injuries.

Upon application for workmen's compensation the Judge of Industrial Claims denied compensation on the theory that the employee was on a personal mission, subject to the 'coming and going' rule and his activities were not in furtherance of employer's business. On review the Industrial Relations Commission, with one member dissenting, reversed and order of the Judge of Industrial Claims holding, inter alia, that the record indicated the accident of respondent-Garren came within the exceptions enunciated in Nicolasi v. Sparagna, 135 N.J.L. 131, 50 A.2d 867:

'The general rule is that injuries sustained by a workman while going to and returning from his place of work are not considered as arising out of and in the course of his employment. But injuries sustained by the workman while he is provided with transportation when going to or returning from his work are considered as arising out of his employment When such transportation is the result of an express or implied agreement between the employer and his workman, or when it has ripened into a custom to the extent that it is incidental to and part of the contract of employment, or when it is with the knowledge and acquiescence of the employer, or when it is the result of a continued practice in the course of the employer's business, and which practice is beneficial to both the employer and employee.' (Emphasis supplied.)

We have carefully examined the record and briefs, have heard oral argument and quote with approval the dissenting opinion of Commissioner Nelson:

'A careful review of the record leads me to believe that there is competent substantial evidence to support the findings of the judge that the claimant's unfortunate accident did not arise out of and in the course of his employment.

'It is important to note that the only witness testifying as to the factual matters in this claim was the claimant himself. He frankly admitted that he had not the slightest doubt his travels...