Jacksonville Coach Co. v. Love

• Decision Date: 31 July 1957
• Citation: 101 So.2d 361
• Parties: JACKSONVILLE COACH COMPANY, Employer, and United States Casualty Company, Carriers, Petitioners, v. Lennon Brinson LOVE, Employee, and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 361

101 So.2d 361

JACKSONVILLE COACH COMPANY, Employer, and United States Casualty Company, Carriers, Petitioners, v. Lennon Brinson LOVE, Employee, and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

July 31, 1957.

Rehearing Denied April 14, 1958.

Barnes, Barnes, Naughton & Slater, Thomas W. Barnes and Claude K. Slater, Jacksonville, for petitioners.

John E. Mathews, Jr., Jacksonville, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.

O'CONNELL, Justice.

Petitioners, Jacksonville Coach Company, employer, and United States Casualty Co., carrier, seek to have reviewed the order of the full commission affirming the order of the deputy commissioner, wherein the respondent Lennon Brinson Love was held to have sustained an injury arising out of and in the course of his employment.

The employer operates the city bus system in Jacksonville. Claimant was employed by the company as a mechanic in its repair shop located on the west side of Riverside Avenue. On the morning of July 19, 1955 he left his home, walked about two blocks, and boarded a Jacksonville Coach Company bus at a regular bus stop. The bus, which he boarded at 7:00 o'clock a. m., was a regularly scheduled bus operated by the company for the general public along a reqular route. At about 7:15 a. m. the bus stopped at a regular bus stop at the intersection of Riverside Avenue and McCoy Street. Claimant and the other passengers descended from the bus. The employer's office and shop were directly across Riverside Avenue from the bus stop. Claimant and another employee started to cross Riverside Avenue, whereupon claimant was struck by a passing automobile and suffered injury thereby.

Claimant was a member of the International Association of Machinists, a labor union. By a contract of employment, negotiated by the union, claimant and other employees who were members of the union, as well as their wives, were entitled to free transportation on all lines of the employer in the City of Jacksonville at all times. Article Six of this contract reads as follows:

'Sec. 1. Free transportation shall be furnished all employees who are members of this Union upon presentation of proper credentials on all routes in the city. Employees who have been in the service of the Company for one (1) year or more shall be entitled to free transportation on all routes presently operated by the Company.

'Sec. 2. The wives of all employees covered by this agreement shall also receive free transportation on all City lines.'

The Business Agent of the Union testified that the passes provided for under the contract 'were considered a fringe benefit just the same as vacations, shift premiums and the like.' The Deputy Commissioner in his order found that the free transportation was available to the holders of such passes regardless of the purpose for which the employee was riding the bus.

Claimant, who had been employed by the company since 1928, was in the habit of riding the bus to work about four mornings per week. About once a week he would drive his own automobile to work. When traveling by bus, he would arrive at the shop around 7:15 a. m., whereupon he would change his clothes, spend a few minutes talking to fellow employees, and commence work at 8:00 a. m. Were he to take a bus subsequent to the 7:00 a. m. one he would arrive too late to commence work at 8:00 a. m. On the morning of the accident the claimant had utilized the transportation facility of the employer free of charge to himself, as provided in Article Six of the contract of employment mentioned above.

Upon sustaining the injury in the public street outside the company's shop, claimant sought compensation from his employer. Both the employer and its carrier, petitioner here, controverted the claim. A deputy commissioner conducted hearings which established the foregoing facts. On May 3, 1956, he entered his order concluding claimant had sustained an injury, by accident, arising out of and in the course of his employment by petitioner, the Jacksonville Coach Company.

The full commission on October 18, 1956 entered its order affirming the deputy's order.

It is the general rule that the hazards encountered by empoyees while going encountered by employees while going work are not ordinarily incidental to the employment. Hence, an employee injured on such a journey is generally not protected by the Workmen's Compensation Act, F.S.A. § 440.01 et seq. Povia Bros. Farms v. Velez, Fla.1954, 74 So.2d 103; Blount v. State Road Dept., Fla.1956, 87 So.2d 507. There are, however, many exceptions to the general rule, as pointed out by this Court in the Blount and Povia cases, supra. We said in the Povia case that one exception is where the 'going and coming' journey is made in transportation furnished by the employer as a part of the employment contract.

We must determine here, as in the Povia case, whether or not the provisions of Article Six of the contract of employment between the union and the employer constitute an agreement by the employer to furnish the claimant transportation to and from work so as to bring this case within the abovementioned exception to the 'going and coming' rule. If we find that there was such an agreement we then must determine whether the occurrence of the accident was incidental to such transportation.

The deputy commissioner and the full commission both felt that the opinion of this Court in the Povia case controls this case.

In the Povia case this Court, 74 So.2d at page 105, speaking through Mr. Justice Hobson said.

* * * It was established that the transportation was customarily furnished by the employer for those employees who did not have other transportation available, and an understanding existed between employer and employee that the truck would be at the loading point, or in the general loading area, at a reasonably certain time in the morning of a working day.'

This Court clearly decided that there was an agreement, express or implied, that the employer would transport the employee to and from work.

Mr. Justice Hobson then reasoned, as did the court in Flanagan v. Webster & Webster, 1928, 107 Conn. 502, 142 A. 201 that the stopping of the truck by the driver thereof was an invitation to the claimant to board the truck at that time and place, given by the driver of the truck in behalf of the employer and that such invitation constituted an order of the employer to the employee to board the truck at the place where it had been stopped.

In the Povia case we held that from the time the employee began to cross the road, in response to the implied order of the driver of the truck, he was engaged in an attempt to fulfill an order of his employer, and that the coverage of the Workmen's Compensation Act commenced from the time he started to cross the road.

It is clear then that this Court in the Povia case first determined that the employee was acting pursuant to an order of the employer, and had submitted himself to the authority and control of the employer under the relationship of employer and employee, before it concluded that the accident was incidental to the transportation of the employee to and from work by the employer.

The most difficult question involved in the Povia case was not whether there was an agreement to transport the employee to and from work, but was where does the outer edge of the cloak of coverage of the act fall in a case such as this.

It is to be noted that this Court restricted the scope of its decision in the Povia case to the particular facts therein by saying, 74 So.2d on page 105

'* * * We do not intend to lay down a broad principle herein, but rather we shall, as we must, restrict the scope of our inquiry and the...