Leeds v. City of Miami

• Decision Date: 22 June 1960
• Parties: Arnold P. LEEDS, Petitioner, v. CITY OF MIAMI and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 474

122 So.2d 474

Arnold P. LEEDS, Petitioner, v. CITY OF MIAMI and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

June 22, 1960.

Rehearing Denied July 18, 1960.

Joseph C. Brannen and Edward Schroll, Miami, for petitioner.

Olavi M. Hendrickson and James J. McVeigh, Miami, for respondent City of Miami.

Paul E. Speh and Burnis T. Coleman, Tallahassee, for respondent Florida Industrial Commission.

PER CURIAM.

This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs to review the order of the Florida Industrial Commission in said cause bearing date December 14, 1959, and the petitioner having failed to show that the essential requirements of law have been violated, it is ordered that said Petition be and the same is hereby denied.

THOMAS, C. J., and ROBERTS, DREW, THORNAL and O'CONNELL, JJ., concur.

TERRELL and HOBSON, JJ., dissent.

TERRELL, Justice (dissenting).

This is a petition for certiorari to review an order of the Florida Industrial Commission reversing a compensation order of the Deputy Commissioner and dismissing the petitioner's claim.

The Deputy Commissioner made the following findings of fact:

'2. That the claimant filed a claim for all compensation benefits under the Workmen's Compensation Act of Florida [F.S.A. § 440.01 et seq.], alleging essentially that he received an injury by accident arising out of and in the course and scope of his employment on August 21, 1958, while employed as a detective sergeant with the City of Miami Police Department. The employer controverted the claimant's claim alleging essentially that the claimant had not sustained an injury by accident arising out of and in the course and scope of the claimant's employment with the said employer.

'3. That on the date of the within accident the claimant was the assistant supervisor for the Records and Identification Bureau of the Police Department of the City of Miami and was temporarily acting as head of that department because the head supervisor, Robert Volmer, was on vacation. As temporary head of this department the claimant was furnished with a City-owned vehicle and was subject to call twenty-four hours a day; that it was the custom and practice for department heads to keep their City-owned vehicles in their possession twenty-four hours a day after said vehicles had been assigned to them, and the claimant, acting in such temporary capacity as aforementioned had such a vehicle assigned to him under said conditions.

'4. That on the day of the within accident the claimant had driven the City-owned vehicle assigned to him to the University of Miami in Coral Gables, Florida, for the purpose of attending a class at said University, for which the said claimant was enrolled; that after said class the claimant, while driving the City-owned vehicle, was involved in an automobile accident in the City of Coral Gables, Florida. At the time of the said accident the claimant was driving to his employer's Police Station to conduct an inspection pursuant to a written order of the employer's Police Chief.

'5. That there were only two witnesses who testified at the hearing on the captioned matter; to wit, the claimant and Chief Youell, who testified on behalf of the employer.

'6. That Chief Youell testified that the employer's department heads, who were assigned City-owned vehicles as aforesaid and who were on twenty-four hours' call, had no express permission to drive these vehicles outside the City limits of the City of Miami, but further testified that through custom and practice they did, and that by virtue of being on twenty-four hours' call they must present themselves when called, regardless of where they were, and this was the reason the said department heads were furnished vehicles by the employer.

'7. That the undersigned Deputy Commissioner finds that the claimant received an injury by accident arising out of and in the course and scope of his employment with his said employer, in that the said claimant was on twenty-four hours a day call, and at the time of the within accident was returning to the employer's police station pursuant to a written order of the employer's police chief.'

On appeal to the full Commission, the following findings of fact were made and entered, on the basis of which it reversed the order of the Deputy Commissioner:

'We can find no authority for excluding the policemen from the 'personal mission rule' and by the same token, we are unable to locate authority which would extend the 'employer's vehicle rule' to purely personal missions. Mr. Larsen, in his Treatise on Workmen's Compensation Law, at Section 17.10, points out the reason for extending the scope of employment to travel in the employer's vehicle. Mr. Larsen states, viz.:

"The simple justification for this holding is that the employer has himself expanded the range of the employment and the attendant risks. He has, in a sense, sent the employee home on a small ambulatory portion of the premises * * *.'

'Certainly the employer in the instant cause did not send the claimant on a personal mission to the University to attend classes nor did it call the employee to return to work following the conclusion of the University class. In the instant cause, the employee departed from the employer's premises on a personal errand and then commenced to return to the original point of departure.' (Emphasis supplied.)

The full Commission concluded that this case comes within the rule pronounced in Fidelity & Casualty Co. of New York v. Moore, 1940, 143 Fla. 103, 196 So. 495, and N. & L. Auto Parts Co. v. Doman, Fla.App.1959, 111 So.2d 270, to the effect that an employee who leaves the employer's premises or employment to perform a personal errand is not entitled to compensation for an accident until such time as the employee returns to the point of departure.

It is first contended by petitioner that findings of the full Commission, viz. (1) that claimant was authorized to use the city-owned vehicle to travel to and from work and (2) that the employee did not call claimant to return to work following conclusion of the University class, were in addition to and contrary to the findings of fact made by the Deputy Commissioner and were not authorized.

As to fact number one, if the full Commission meant to hold that the petitioner was authorized to use his vehicle in going only to and from work, this holding definitely is contrary to the findings of the Deputy. That there is ample evidence in the record to support the Deputy is demonstrated by the following pertinent excerpts from the testimony of Chief Youell:

'A. I do not think any of our supervisors can ever come to us and say we have told them to use a car for their own private purposes, to go shopping, to the show, to dinner, to the University or anything of that nature in a City vehicle. We have not authorized that, but by the same token, we have never had a written policy that says you may not do it. There would be a tremendous amount of don't do's, although we probably could and out of this we may have and nail it down and say flatly this car you will use to go only home and back. That we have not done. We always felt our supervisors had enough integrity to use the car along the lines which I have outlined.

* * *

* * *

'Q. In other words, there is no specific 9:00 to 5:00 hours? A. No. When I say he is in charge of the bureau it is his responsibility to operate that bureau around the clock. He has people working for him on the morning shifts, the afternoon shifts and the night shifts. If he deems it necessary to come down at 3:00 o'clock in the morning to see how his bureau is running, we expect him to do so and we furnish him a car for that purpose.

* * *

* * *

'A. He is responsible seven days a week around the clock for his particular unit.

* * *

* * *

'Q. Divorcing the City car from the question, assuming he was in his own car, would the same thing apply? A. It brings up a question which I frankly do not know how to answer. A supervisor such as his job is a 24-hour-a-day thing. He practically makes his own decisions in regards to when he is needed at the station. We do not make them, that is his responsibility. If he deems he has to come back down there at 10:00 or 11:00 o'clock at night, we do not question him about it. That is his own responsibility to do it.'

That it is the sole duty of the Deputy to make findings of fact and decide the credibility of witnesses is too elementary to discuss. It is also clear that neither the full Commission nor this court is authorized to substitute...