Levine v. Builders Aluminum Stone Co.

• Decision Date: 26 May 1966
• Docket Number: No. 34526.,34526.
• Parties: Milford LEVINE, Petitioner, v. BUILDERS ALUMINUM STONE CO. and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

186 So.2d 26

Milford LEVINE, Petitioner, v. BUILDERS ALUMINUM STONE CO. and the Florida Industrial Commission, Respondents.

No. 34526.

Supreme Court of Florida.

April 27, 1966.

Rehearing Denied May 26, 1966.

L. Barry Keyfetz and Kaplan, Ser & Dorsey, Miami, for petitioner.

Ernest H. Eubanks, of Maguire, Voorhis & Wells, Orlando, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents

BARNS, PAUL D., Justice

Petitioner here was a claimant against the respondent Builders Aluminum Stone Co. before the Florida Industrial Commission. The Full Commission reversed an award to the claimant by the Deputy Commissioner whereupon claimant-petitioner seeks review by certiorari; we find error and quash the order of the Commission.

The only evidence presented was the testimony of claimant. Claimant was employed as a salesman by his employer, Builders Aluminum Stone Co. Claimant lived in Miami and had been in Jacksonville on his employer's business for about one week prior to his accident. Mr. Cowan and Mr. Stern, the owners and officers of the corporation, had also been in Jacksonville on business during this time.

Claimant intended to fly back to Miami the evening of November 8, 1962. However, prospective customers were contacted that evening, resulting in the consummation of a sale and the flight to Miami was missed. Mr. Stern, an officer of the corporation was anxious to return to Miami that evening. The Deputy Commissioner found that the claimant suffered an accident and injury arising out of and in the course of his employment and based his award upon claimant's testimony which he recapitulated as follows:

"Claimant testified that he had no particular territory to cover; that he worked all over the state; that about the time of the alleged accident he was working namely in the Duval, Volusia, Brevard, Counties area; that the principal office of the employer was in Jacksonville, Florida; that claimant had been in Jacksonville working the week of the alleged accident and was intending to fly to Miami to see his family over the weekend and to return to the Volusia County area on Monday.

"Claimant testified that he had a car in Miami and one in Jacksonville; that due to his consumating a sale the evening prior to the accident, he was late in returning to the Jacksonville office and claimant, as well as Mr. Sidney Stern and Mr. Marvin Cowan, missed the flight to Miami, Florida; that Mr. Stern, principal officer of the employer corporation, was anxious to get to Miami and decided that he, Mr. Cowan, and the claimant would drive to Miami in Mr. Cowan's car. Mr. Cowan, to the claimant's knowledge, was also an officer of the employer corporation; that about 1:30 A.M. on November 9, 1962, claimant was driving Mr. Cowan's automobile, pursuant to Mr. Stern's instructions; that Mr. Stern...