Jaquette Motor Co. v. Talley, No. 31126

CourtUnited States State Supreme Court of Florida
Writing for the CourtHOBSON; THOMAS; McLANE
Citation134 So.2d 238
Docket NumberNo. 31126
Decision Date01 November 1961
PartiesJAQUETTE MOTOR COMPANY and Corporate Group Service, Inc., Petitioners, v. Anna L. TALLEY and the Florida Industrial Commission, Respondents.

Page 238

134 So.2d 238
JAQUETTE MOTOR COMPANY and Corporate Group Service, Inc., Petitioners,
v.
Anna L. TALLEY and the Florida Industrial Commission, Respondents.
No. 31126.
Supreme Court of Florida.
Nov. 1, 1961.

Page 239

Jones, Adams, Paine & Foster and Paul C. Wolfe, West Palm Beach, for petitioners.

Dean Tooker, Stuart, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

HOBSON, Justice.

The petitioner herein, who is the employer, seeks review by certiorari of an order of the Florida Industrial Commission which affirmed an award of compensation by the Deputy Commissioner to the dependent widow of the deceased employee.

In November, 1957, the deceased employee was employed by the Florida East Coast Railway as a bridge tender at an average weekly wage of $66. His hours of employment were from 10:00 P.M. until 6:00 A.M. He was concurrently employed by petitioner Jaquette Motor Company as a used car salesman at an average weekly wage of $45.42. The accident which subsequently proved fatal to the employee arose out of and in the course of the latter employment. On November 25, 1957, the deceased was, incidental to his duties as a used car salesman, driving a used car from his employer's lot in Fort Pierce to another lot in Stuart, Florida. While en route to Stuart, the car had a blowout. While attempting to change the tire, the deceased suffered a heart attack which resulted in his hospitalization and subsequent death in April, 1958. It appeared from the evidence that in July, 1953, the deceased suffered an acute coronary thrombosis. This attack resulted in permanent heart damage.

The foregoing facts are not in dispute and the petitioner makes no contention before this court that the 1957 attack was not a result of an accident arising out of and in the course of employment.

The first issue with which we are presented arises out of the fact that the deputy based his award of compensation on a combination of the earnings of the deceased from both the petitioner, Jaquette Motor Company, and the Florida East Coast Railway.

Petitioner relies on Section 440.09(2), viz.:

'No compensation shall be payable in respect of the disability or death of an employee of a common carrier by railroad or express company engaged in intrastate, interstate or foreign commerce.'

It is petitioner's contention that in light of this section it is improper to include in the computation of average weekly wages the earnings from employment by the Florida East Coast Railway.

We are compelled to agree. This is a case of first impression in this state although an analogous situation was presented to the District Court of Appeal, Second District in the case of Wilson v. City of Haines City, Fla.App., 97 So.2d 208. In that case the claimant was self-employed as an electrical contractor and store operator with an income from these enterprises in excess of $12,000 a year. He also served as a voluntary fireman for the City of Haines City. He received $1 for each fire attended and for each practice drill. He received an injury in the course of his employment as a voluntary fireman. The issue was whether he was entitled to compensation based only on his earnings as a voluntary fireman or whether his income from self-employment should also be included in computing the rate of compensation. The court held that the deputy was correct in refusing to combine the wages of the claimant as a voluntary fireman with his earnings as an independent contractor. The rationale of the decision was...

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13 practice notes
  • Iley v. Linzey, No. 87-312
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1988
    ...can be included in AWW should be applied to the seasonal worker provision in section 440.14(1)(c). Cf. Jaquette Motor Co. v. Talley, 134 So.2d 238 Page 1363 We recognize that a number of decisions have treated wages earned in concurrent employment excluded from coverage under the act as not......
  • Wal-Mart Stores v. Campbell, WAL-MART
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 1997
    ...(Fla. 3d DCA 1958); Wilson v. City of Haines City, 2 FCR 361, approved, 97 So.2d 208 (Fla. 2d DCA 1957). In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court quoted the "reasonably and fairly" language of section 440.14(3), now designated section 440.14(1)(d), and no......
  • Vegas v. Globe Sec., No. 91-3417
    • United States
    • Court of Appeal of Florida (US)
    • November 22, 1993
    ...may only be accomplished by resort to the case law of three decades focusing upon this very statute. In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court looked at the 1957 version of section 440.14, which was identical to the portion of section 440.14(1)(a), Florida......
  • Evans v. Florida Indus. Commission, No. 34535
    • United States
    • United States State Supreme Court of Florida
    • February 1, 1967
    ...there is a pre-existing diseased condition. United Electric Co. v. Myers, Fla.1961, 134 So.2d 7; Jacquette Motor Co. v. Talley, Fla.1961, 134 So.2d 238; Victor Wine & Liquor, Inc. v. Beasley, Fla.1961, 141 So.2d 581; Henderson v. Sol Walker & Co., Fla.1962, 138 So.2d 323; Le Forgeais v. Erw......
  • Request a trial to view additional results
13 cases
  • Iley v. Linzey, No. 87-312
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1988
    ...can be included in AWW should be applied to the seasonal worker provision in section 440.14(1)(c). Cf. Jaquette Motor Co. v. Talley, 134 So.2d 238 Page 1363 We recognize that a number of decisions have treated wages earned in concurrent employment excluded from coverage under the act as not......
  • Wal-Mart Stores v. Campbell, WAL-MART
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 1997
    ...(Fla. 3d DCA 1958); Wilson v. City of Haines City, 2 FCR 361, approved, 97 So.2d 208 (Fla. 2d DCA 1957). In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court quoted the "reasonably and fairly" language of section 440.14(3), now designated section 440.14(1)(d), and no......
  • Vegas v. Globe Sec., No. 91-3417
    • United States
    • Court of Appeal of Florida (US)
    • November 22, 1993
    ...may only be accomplished by resort to the case law of three decades focusing upon this very statute. In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court looked at the 1957 version of section 440.14, which was identical to the portion of section 440.14(1)(a), Florida......
  • Evans v. Florida Indus. Commission, No. 34535
    • United States
    • United States State Supreme Court of Florida
    • February 1, 1967
    ...there is a pre-existing diseased condition. United Electric Co. v. Myers, Fla.1961, 134 So.2d 7; Jacquette Motor Co. v. Talley, Fla.1961, 134 So.2d 238; Victor Wine & Liquor, Inc. v. Beasley, Fla.1961, 141 So.2d 581; Henderson v. Sol Walker & Co., Fla.1962, 138 So.2d 323; Le Forgeais v. Erw......
  • Request a trial to view additional results

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