Feltner v. Southern Bell Tel. & Tel. Co., 42470

• Decision Date: 07 March 1973
• Docket Number: No. 42470,42470
• Parties: Marcia K. FELTNER, Petitioner, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY and the Industrial RelationsCommission, Respondents.
• Court: Florida Supreme Court

Page 530

274 So.2d 530

Marcia K. FELTNER, Petitioner, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY and the Industrial RelationsCommission, Respondents.

No. 42470.

Supreme Court of Florida.

March 7, 1973.

Lloyd W. Jabara of Jabara & Richard, Miami, for petitioner.

Eugene L. Heinrich, of McCune, Hiaasen, Crum, Ferris & Gardner, Ft. Lauderdale, and Kenneth H. Hart, Jr., Tallahassee, for respondents.

ERVIN, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Industrial Relations Commission which sustained a decision of the Judge of Industrial Claims.

Petitioner-claimant is the widow of the deceased employee, Robert M. Feltner, Jr., who was employed as a switchmen for the Southern Bell Telephone & Telegraph Company (hereinafter referred to as Southern Bell). His duties included the maintenance of telephone switching equipment and his normal working hours were from 8:00 A.M. to 5:00 P.M. at the employer's central office. Equipment malfunction was not limited to these hours, however, and for this reason Felton, and other members of his six-man switching group, often received a 'call-out' after they returned home in the evening. The employer maintained a list whereon each member of the switching group appeared in an order dependent upon the amount of overtime he had worked during the immediately preceding period. When a breakdown occurred, the switching foreman would contact the employee with the least accumulated overtime and request him to report to the site of the malfunction, which was usually the central of office location. ¹

On the evening of February 9, 1970, at approximately 8:45 P.M., Feltner was at home, having completed his regular workshift that day at 5:00 P.M., when he received a call-out from his foreman. He was asked to report to the central office and correct an equipment malfunction. Approximately fifteen minutes later, while driving his own vehicle over the most direct route to the employer's place of business, Feltner was involved in a fatal automobile accident.

The issue before the Judge of Industrial Claims and, in turn, the Industrial Relations Commission, was whether the accidental death arose out of and in the course of employment. See § 44.02(6), F.S.A. The Judge of Industrial Claims apparently relied heavily on testimony presented by Southern Bell's foreman in finding as a fact that the decedent was not 'required' to accept an overtime call-out:

'Neither decedent nor any other member of the group was required to 'on-call' while off duty or required to 'report in', advise as to his whereabouts or to give any reason for refusing to accept an overtime 'call-out'.'

The Industrial Relations Commission quoted the above language in its order and likewise denied the claimant compensation. The Commission reasoned that since the decedent was not 'on-call,' he was not excepted from the exclusionary 'going and coming' rule which denies compensation for injuries received while traveling to and from one's place of employment. See, e.g., Fidelity & Casualty Co. of N.Y. v. Moore, 143 Fla. 103, 196 So. 495 (1940). Although the Commission did not cite authority for what it referred to as Florida's 'on-call exception' to the going and coming rule, there are several instances where we have granted compensation for accidents that occurred while the employee was performing services additional to those contemplated by his day-to-day work schedule. Cf. Bowen v. Keen, 154 Fla. 161, 17 So.2d 706 (1944); Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941).

In Bowen the employee's duties included the solicitation and sale of feed and other articles of merchandise for the grain company where he worked. 8:00 A.M. 'with exceptions' was the established hour at which he normally began his daily work routine. On the evening of February 24, 1942, his employer 'directed' that he return to the place of business early the next morning, obtain a truck, and make two trips in behalf of his employer. Accordingly, he arose approximately an hour earlier, and was on his way to obtain the truck when he was struck down and killed at around 7:00 A.M. on the highway between his home and the employer's place of business. After reviewing at length numerous decisions both within and without Florida that dealt with the going and coming rule, we held that the death of that employee did arise out of and in the course of his employment.

'While it may be true that the instructions given by the employer to his employee on the previous night 'to come to work earlier', standing alone as a single instruction as to the day's work, may not have subjected the employee to greater or different hazards of risk than ordinarily when beginning work at 8 o'clock, but the instructions were more...