Continental Turpentine & Rosin Corp. v. Palmer, 30871

• Decision Date: 03 May 1961
• Docket Number: No. 30871,30871
• Parties: CONTINENTAL TURPENTINE & ROSIN CORPORATION, S. C. Grantham, and Bituminous Casualty Corporation, Petitioners, v. Edd PALMER and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 409

129 So.2d 409

CONTINENTAL TURPENTINE & ROSIN CORPORATION, S. C. Grantham, and Bituminous Casualty Corporation, Petitioners, v. Edd PALMER and the Florida Industrial Commission, Respondents.

No. 30871.

Supreme Court of Florida.

May 3, 1961.

Rodney Durrance and Calvin A. Pope, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, W. C. O'Neal, of Gray, Chandler, O'Neal & Carlisle, Gainesville, for petitioners.

W. N. Avera, of Scruggs, Carmichael & Avera, Gainesville, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

O'CONNELL, Justice.

Edd Palmer, respondent, was successful in obtaining a compensation award for medical benefits and for temporary total disability relating to an injury received on November 19, 1958. This petition for writ of certiorari to review such order of the Industrial Commission was filed by his employer, Continental Turpentine & Rosin Corporation, and its carrier, Bituminous Casualty Corporation.

The employer, hereinafter referred to as Conturps, was engaged in the business of the extraction and processing of resin and the manufacturing of products derived from resin. It utilized tree stumps as a source of resin. Its plant was located in Dixie County, Florida, in the community of Shamrock, which is adjacent to Cross City. Conturps would lease land containing such stumps and have its employees remove the stumps therefrom and transport them to its plant. Respondent was so engaged and while at one time in these proceedings it was contended he was an independent contractor it is at this stage uncontroverted that he was an employee of Conturps. Therefore the question of whether the respondent was an independent contractor or employee is not before us.

Conturps leased a field containing tree stumps located some 90 miles from the plant and the adjacent town of Cross City, respondent's home. Its arrangement with respondent and similar employees called for their going in their own equipment to the field, getting a load of stumps, and bringing the load to the plant. At the plant the load was weighed and they were compensated according to the weight of the load delivered. The only control exercised by Conturps over respondent and the other employees in the same occupation was that such employees were required to strip or 'clean up' one field before proceeding to another. In other words, the employer controlled the situs of operations. Respondent was assigned no quotas to fulfill and was free to haul as many or as few loads as he wished.

As noted, respondent and the other similar employees furnished their own equipment. It was necessary that they furnish all gas, maintenance, upkeep, and repairs to their equipment, since the employer was not obligated to do so. Respondent owned two Chevrolet trucks, one International truck, and a tractor. The two Chevrolet trucks were being purchased by him from a third person under a retained title contract and Conturps had a security interest therein. Conturps had no such interest in the International.

One of the Chevrolet trucks became disabled because of a burned out motor and was parked off the employer's premises somewhere in the woods. On the day prior to the accidental injury herein involved respondent drove his International truck to the leased field and loaded it with stumps. Enroute to Conturps' plant one of the tires of the International truck had a blowout. By shifting his load, respondent completed his haul without changing the tire. After unloading at the plant in Shamrock, he left the International truck at a gasoline filling station in nearby Cross City.

The next day, November 19, 1958, respondent used his other Chevrolet truck in making another haul of stumps from the leased field to Conturps' plant, which he reached at about 1:30 or 2:00 P.M.

After unloading, respondent did not proceed to return to the filed for the purpose of making another haul. Instead, he proceeded to the spot where the first mentioned Chevrolet truck was parked and removed its tires, which were in good condition. Then, he drove to the filling station in Cross City at which he had left his International truck for the purpose of replacing its tires, including the damaged one, with the good tires from the other Chevrolet.

Respondent entered an agreement with the filling station operator to have the tires changed at a reduced rate in exchange for his assistance in the actual labor. While he was engaged in such labor, between 5:00 and 6:00 P.M., a tire 'exploded' and respondent suffered therefrom a fractured leg. He was temporarily and totally disabled a period of some months, up until July 1, 1959. At that time he reached maximum medical recovery with no permanent disability.

The deputy made a finding that respondent was an employee of Conturps and not an independent contractor, in view of the fact Conturps had the unrestricted power to terminate his services at will, with or without cause. He found that the truck respondent was working on was one used in the performance of his duties. The deputy concluded that:

'* * * He was merely putting the truck into condition for use in the employer's business. It appears, and I so find, that there is a causal connection between the injury and the employment of the claimant, and therefore, the claimant's injury arose out of and in the course of his employment with Continental.'

It is noted that the deputy also remarked that the injury happened while respondent was repairing a vehicle used in the performance of his duties 'and during the usual hours of employment.' This no doubt was based upon respondent's testimony that normally he would leave his home in the morning no later than 4:00 A.M. in order to go to work and it would sometimes be 8:30 or 9:00 at night before he got back, although usually in would be between 5:00 and 7:00 P.M. Respondent also testified that sometimes he would make two trips a day to and from the filed being used by Conturps, depending on its distance from the plant. However, the deputy found that because of the long distance from the plant to the field being used at the time of the accident (90 miles) respondent could make only one load a day when hauling from such site.

The full commission affirmed the deputy as to his finding that the accident arose out of and in the course of his employment, commenting that:

"There is no dispute in the testimony,' says the Deputy Commissioner, 'that the claimant was required to furnish, maintain, and keep in running order his trucks used to transport stumps.' Therein lies the crux of the entire case.'

This, then is a case wherein the employee was required to use his own trucks in his employer's business and it was his responsibility to keep such in operating order. On the day of the injury he completed in the afternoon his labor of hauling stumps and left the employer's premises. Some three or four hours later, in a public garage, he was injured in the repair of one of the trucks used in the hauling of stumps for the employer. While he was obligated to keep his vehicles in running order, he was not instructed by the employer to perform the necessary repair work himself. He could, as he sometimes did, employ others to perform such repairs. Further, it appears that in the instant case he attempted to employ the filling station operator to make the repairs for him, but due to the pressure of business at the station it became more convenient for him to assist in such repair, in exchange for a reduced charge. The employer had no control over the premises of the filing station and thus was in no position to direct or supervise the repairs or to take any steps to reduce the hazards thereof. The employer actually could not require respondent to repair this particular vehicle as he possessed at least one other truck capable of accomplishing the employer's business. Further, it could be questioned whether the employer, had it had actual knowledge of the repair being attempted, would have approved such, for respondent took good tires from a truck in which the employer had a security interest, depreciating its value, to place upon his own vehicle, enhancing its value accordingly.

This Court has never ruled on the express point presented. In Glasser v. Youth Shop, Inc., Fla.1951, ...