Fernando Fernandez v. Consolidated Box Co., 40667

• Decision Date: 09 June 1971
• Docket Number: No. 40667,40667
• Parties: Fred FERNANDO FERNANDEZ, Petitioner, v. CONSOLIDATED BOX COMPANY et al., Respondents.
• Court: Florida Supreme Court

Page 434

249 So.2d 434

Fred FERNANDO FERNANDEZ, Petitioner, v. CONSOLIDATED BOX COMPANY et al., Respondents.

No. 40667.

Supreme Court of Florida.

June 9, 1971.

Rehearing Denied July 6, 1971.

Joseph L. Thury, of Antinori, Cazin, Cohen & Thury, Tampa, for petitioner.

Calvin A. Pope and William W. Fernandez, of Pope & Burton, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

CARLTON, Justice.

In this Workmen's Compensation case, the determinative issue is whether or not the claimant-petitioner was on company property when he was assaulted. The Judge of Industrial Claims ruled that a portion of city street had been utilized by Consolidated Box Company sufficiently to constitute 'quasi-company property,' and that an assault on claimant occurring on the street gave rise to a compensable claim. The Full Commission reversed, with one member dissenting. Through our opinion today, we reverse the Commission and reinstate the Order of the Claims' Judge.

Consolidated Box's premises were intersected by a small section of city street, which was used in part as a company parking lot. On the night of January 24, 1969, after punching out on the timeclock, claimant walked over to the intersecting street where his car was parked. He found that the tires were slashed. As he attempted to change one of the tires, he was assaulted and shot.

A claim for compensation was filed on the theory that the incident occurred while claimant was still on company property. Consolidated Box and its carrier resisted the claim with the argument that the 'going and coming' rule applied. See generally, Alpert Florida Workmen's Compensation Law, § 8:2; I Larson Workmen's Compensation Law, § 15.

The Judge of Industrial Claims ruled in favor of claimant after making the following findings:

'(a) The undersigned believes the testimony of the Employee and other Coemployees in that they considered Horatio Street, a street between two parts of the premises of the Employer, as part of the Employer's premises, in that it had been used completely by the Employer for its materialmen for loading and unloading and other attendant and collateral benefits for the Employer.

'(b) That the pictures in evidence placing the Employee's automobile within one-half foot of the building on Horatio Street clearly puts this automobile partially on the Employer's property, in that the Employer had introduced a survey in evidence showing that the west side of the building on horatio Street, that being the warehouse, was 3.1 feet from the right-of-way called Horatio Street owned by the City of Tampa and the distance from the right-of-way, or Horatio Street and the building line on the east side of the building was 1.75 feet. The survey further conclusively proved that the platform and steps on the east side of the building had definitely encroached upon Horatio Street, and that further, the little building that housed a compressor and which was built subsequent to the accident was 6 8 feet and encroached on Horatio Street some 5 to 6 feet.

'(c) The testimony of the Employer and its Vice-President clearly showed that the small section of Horatio Street separating two parts of the premises, or two buildings or warehouses of Consolidated Box, had been in effect taken over by the Employer and that they had paved large sections or ramps across Horatio Street in order for their forklift...