City of Miami v. Granlund

• Citation: 153 So.2d 830
• Decision Date: 22 May 1963
• Docket Number: 32066,Nos. 32019,s. 32019
• Parties: CITY OF MIAMI, Petitioner, v. Florence GRANLUND et al., Respondents. Florence GRANLUND, widow of Charles H. Granlund, deceased, and Administratrix of his Estate, Petitioner, v. CITY OF MIAMI and the Florida Industrial Commission, Respondents.
• Court: United States State Supreme Court of Florida

Page 830

153 So.2d 830

CITY OF MIAMI, Petitioner, v. Florence GRANLUND et al., Respondents.

Florence GRANLUND, widow of Charles H. Granlund, deceased, and Administratrix of his Estate, Petitioner, v. CITY OF MIAMI and the Florida Industrial Commission, Respondents.

Nos. 32019, 32066.

Supreme Court of Florida.

May 22, 1963.

Rehearing Denied June 21, 1963.

Robert D. Zahner, City Atty., and Anthony F. Paterna, Asst. City Atty., for City of Miami, petitioner-respondent.

Harold C. Knecht, Miami, for Florence Granlund, Widow of Charles H. Granlund, respondent-petitioner.

Burnis T. Coleman and Patrick H. Mears, Tallahassee, for Florida Industrial Commission, respondent.

THOMAS, Justice.

The order of the deputy commissioner awarding compensation to the respondent, Florence Granlund, for the death of her husband was affirmed by the Full Commission, but so much of his order as dealt with insurance payments was reversed. We are now entertaining a petition for certiorari, and a cross petition, to review both features of the matter.

The husband was working at the cashier's window in the automobile inspection station of the City of Miami when a police officer entered the room and removed his pistol preparatory to cleaning it. The officer appeared to remove all the cartridges, and doubtless thought he had done so, but it eventuated that one of them remained in the weapon. Without arising from his seat the husband took the gun, pointed it at a fellow employee then placed the barrel at his head and pulled the trigger. The Bullet the officer had overlooked brought death to the husband. The deputy found that the man was accidentally killed while he was acting within the scope of his employment and that his widow was, therefore, entitled to compensation.

That the employee's performance was foolhardy is obvious and we think constituted horseplay of such substantial character as to amount to abandonment of his employment. For all practical purposes the man committed suicide though there is no evidence that he deliberately took his own life. The weapon could form no link with his allotted work at the cashier's window but, on the other hand, was grabbed from a police officer who properly possessed it.

We are importuned to hold that this case is controlled by our decision in Boyd v. Florida Mattress Factory, Inc., Fla., 128 So.2d 881. There is similarity in the two factual situations in that both reflected recklessness on the part of the employees, but we think there is sufficient dissimilarity to justify different conclusions.

In the cited case the claimant was an employee and officer of a corporation that maintained a boat which was used to entertain customers. Among the equipment were some cherry bombs used for the purpose of catching minnows. When the boat docked after an unsuccessful fishing trip, the claimant while moving equipment from one place in the boat to another discovered the bombs, which were so constructed that they would explode under water, inpulsively lighted the fuse of one and threw it overboard. In the resulting explosion he lost the vision of his eye.

After considering the decisions dealing with deviation, horseplay, and playfulness as related to employment, the court stated that the right to compensation hinged on the element of deviation and concluded that there was no basis in logic or reason to hold that the claimant by 'this trifling act when taken in conjunction with all other acts constituting the conviviality required in this enforced fishing trip, deliberately and substantially stepped outside of his employment * * *.' We have italicized the language which demonstrates some connection between the employment and the foolish prank. In the present case we can find no such relationship.

We, therefore, decline to extend the ruling in the cited case to the one we now consider.

The second phase of the case, involving the propriety of the order of the deputy commissioner requiring the payment by the City of Miami, employer, of $1147.24 which had been remitted to the hospital by the hospitalization insurance carrier, is concluded by our decision that the claim was not compensable.

The writ of certiorari is, therefore, granted, the order of the Full Commission quashed, and the cause dismissed.

O'CONNELL, CALDWELL and HOBSON (ret.), JJ., concur.

THORNAL, J., concurs specially.

TERRELL and DREW, JJ., dissent with opinions.

THORNAL, Justice (concurring).

I agree to the disposition of this case for the reasons announced in the opinion of Justice THOMAS. However, in so doing, I do not concede that there was any employment-related injury in Boyd v. Florida Mattress Factory, Inc., Fla. 128 So.2d 881. I dissented from the Boyd decision for reasons which lead me to concur with the majority here.

TERRELL, Justice (dissenting).

From the factual aspect detailed in the majority opinion of Mr. Justice THOMAS, I am convenced that no one can say of a certainty whether Granlund came to his death by accident, suicide, horseplay or deviation from the required course. The statute forbids that we presume suicide where there is no convincing evidence of it. The deputy commissioner found that Granlund came to his death by accident while acting in the scope of his employment and that his widow was entitled to recover. The full commission affirmed.

This court has repeatedly held that the Workmen's Compensation Act should be liberally construed and doubts resolved in favor of the working man. Naranja Rock Co. v. Dawal Farms, Fla.1954, 74 So.2d 282; Parker v. Brinson Construction Co., Fla.1955, 78 So.2d 873; Townsley v. Miami Roofing & Sheet Metal Company, Fla.1955, 79 So.2d 785; Alexander v. Peoples Ice Co., Fla.1955, 85 So.2d 846; Bailey's Auto Service v. Mitchell, Fla.1956, 85 So.2d 228; Great American Indemnity Co. v. Williams, Fla.1956, 85 So.2d 619; Webb v. Perini, Walsh, Mills & Blythe Bros., 2 FCR 9 (1956); McCall v. Motor Fuel Carriers, Fla.1945, 155 Fla. 854, 22 So.2d 153; McKinney v. State ex rel. Ersoff, Fla.1955, 83 So.2d 875.

When, as in this case, the incidence of Granlund's death took place within a few seconds by one of several methods and the deputy commissioner found that he came to his death by accident in the course of his employment and there is no showing of error whatever in the deputy's finding, I can find no better reason to apply the rule approved in the above cited cases. The issues in workmen's compensation cases do not have to be proven beyond a reasonable doubt or by preponderance of the evidence, but the thing that took place may be presumed from the logical facts. That is what the deputy did in this case and his deduction was a perfectly reasonable one. I would deny certiorari and affirm the full commission.

I, therefore, dissent.

DREW, J., concurs.

DREW, Justice (dissenting).

The decedent, employed as supervisor of a city motor vehicle testing station, received his injury, according to findings of the deputy amply supported by the evidence, in the following manner:

'On Tuesday, May 23, 1961, the employee was seated working at his desk at the cashier's window in the City of Miami auto inspection station when a fellow employee, Officer Nagle, entered the room and removed his revolver fro the purpose of cleaning same preparatory to an inspection. [Nagle ejected the bullets from the revolver on top of the decedent's desk, but as subsequent events show all the bullets were not ejected.] At this time, the deceased took the gun from Nagle's hand, pointed it at fellow employee, Paul B. Meyer, and then put it to his head and shot himself. He did not leave his seat at the desk where he was working and the entire incident consumed only a matter of seconds from beginning to end. The claimant died two weeks later from the effects of the gunshot wound. I find that the wound was accidentally inflicted while the decedent was within the scope of his employment.'

While I recognize that an employee's participation in horseply may constitute an abandonment of his employment, ¹ I think the claim in this case was properly determined on the basis of the rule applied in several such cases arising previously in this jurisdiction ² and expressed in the opinion of this Court in Boyd v. Florida Mattress Factory, Inc., Fla.1961, 128 So.2d 881. The right to compensation turns on the question of deviation from the course of employment, the extent and duration of which may, as in Boyd and the case at bar, resemble the deviations that are discharged as insubstantial in other instances of transitory departures. ³

Because the pattern of decisions defining course of employment generally under the Act requires a distinct and deliberate departure to defeat recovery for injuries during working hours, ⁴ and because the instrumentality causing injury in this case was itself more closely connected withd the employment than in Boyd, supra, adherence to the rule of insubstantial deviation in the situation at bar is in may opinion required. The petition of the employer City for writ of certiorari in my judgment should be denied.

With reference to the claimant's cross petition for writ of certiorari directed to that portion of the order of the Commission herein vacating the deputy's award of hospital expenses in amount of...