Jaquette Motor Co. v. Talley, 31126

• Citation: 134 So.2d 238
• Decision Date: 01 November 1961
• Docket Number: No. 31126,31126
• Parties: JAQUETTE MOTOR COMPANY and Corporate Group Service, Inc., Petitioners, v. Anna L. TALLEY and the Florida Industrial Commission, Respondents.
• Court: United States State Supreme Court of Florida

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.

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 that since an independent contractor is not an 'employee' coming under the provisions of the Workmen's Compensation Act, then the earnings resulting from self-employment should not be included as a basis for compensation under the Act. The analogy to the instant case is clear, for just as an independent contractor does not come within the terms of the Workmen's Compensation Act so also is the employee of a railroad excluded therefrom. It is true, of course, that the death of the employee herein terminates his earnings from the railroad as well as those which he received from the covered employment. However, this fact does not justify our expanding the provisions of the act beyond those situations which it was intended to cover. Section 440.14, F.S.A., regarding determination of pay, clearly supports this holding:

'(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said thirteen weeks.' (Italics supplied.)

Sub-section (2) of Section 440.14 provides an alternative method of computing the wage basis if the claimant has not worked in 'such employment during substantially the whole of thirteen weeks immediately preceding the injury.' In such event the wages of a similar employee in the same employment shall be used to determine the wage base. Sub-section (3) of the same section provides 'if either of the foregoing methods cannot reasonably and fairly be applied the full time weekly wages of the injured employee shall be used, except as otherwise provided in subsection...