Magarian v. Southern Fruit Distributors

• Decision Date: 29 April 1941
• Parties: MAGARIAN v. SOUTHERN FRUIT DISTRIBUTORS et al.
• Court: Florida Supreme Court

1 So.2d 858

146 Fla. 773

MAGARIAN v. SOUTHERN FRUIT DISTRIBUTORS et al.

Florida Supreme Court

April 29, 1941

Appeal from Circuit Court, Orange County; Frank A. Smith judge.

Tilden hays & Walker, of Orlando, for appellant.

E. W & R. C. Davis, of Orlando, for appellees.

BUFORD, Justice.

On appeal we review order of the Circuit Court made on review of an order of Florida Industrial Commission denying compensation to claimant under our Workmen's Compensation Act, Acts 1935 c. 17481, § 1 et seq., as amended by Acts 1937, c. 18413, § 1. The Commission denied compensation on the finding that claimant was not injured while in the course of his employment and that he was an independent contractor and not an employee.

The Circuit Court found contrary to the finding of the Commission as to the injury occurring in the course of the employment and in this finding of the Court we concur and, indeed, see no room for question. But the Circuit Court agreed with the Commission holding claimant to be an independent contractor and therefore, not entitled to award compensation, and affirmed the order of the Commission.

So the only question we have to determine is whether or not claimant was an employee or an independent contractor.

The employment was seasonal and had continued over the citrus-fruit shipping season for a number of years. Claimant's duties were to locate, inspect and buy citrus fruit for Southern Fruit Distributors throughout the packing and shipping season under the direction and instructions of the managers of Southern Fruit Distributors. He had no authority to use his independent judgment in determining whether or not he would buy any certain fruit, nor as to the time when any certain fruit should be bought and delivered to his principal. These decisions were entirely with the Southern Fruit Distributors. The employment did not require the consumption of his éntire or full time during the season, but it was his duty to give his time and talent to the performance of his duties in this regard as and when it was required in the employer's behalf and to then go where and do what the employers required in this behalf and to locate purchaseable and suitable fruit crops and to advise the employer of the location, ownership and condition of such crops, that the employer might be advised of the availability of fruit if and when it should be desired to purchase the same. The fruit was sold by the producer to and paid for by the employer. The compensation paid claimant was a sum equal to 1 cent per field box for all fruit which was bought by and delivered to the employer through the service rendered in this behalf by the employee under the direction of the employer.

The record shows that at the very time claimant was injured he was acting directly under and in accordance with the directions of the employer in the discharge of his duties within the purview of his employment.

We cannot see wherein the method of determining the amount of compensation to be paid the employee has any controlling effect in this case. His authority and duties were not different from what they would have been had he been paid a salary of a stated amount per month or per week to do just what he was required to do under otherwise identical conditions.

The terms of employment were such that either party could have terminated it at any time without cause except the desire to do so and without liability to the other by reason of so doing.

The employment was within the course of trade and business of the employer.

Paragraph 2 of Sec. 2 of Chapter 17481, Acts of 1935, was amended by Chapter 18413, Acts of 1937, to read as follows: '(2) The term 'employee' means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors whether lawfully or unlawfully employed, but excluding independent contractors and excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.' Thereby the exclusion of 'persons who receive for their services a commission or percentage on the business or work done, notwithstanding any drawing account or minimum guaranty that may be agreed upon' was eliminated and the Act thereby became applicable to such employees.

In Restatement of the Law, Agency, Sec. 220, we find:

'220. Definition.

'(1) A servant is a person employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control.

'(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

'(b) Whether or not the one employed is engaged in a distinct occupation or business;

'(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

'(d) the skill required in the particular occupation;

'(e) whether the employer or the workman supplies the instrumentalities tools and the place of...