Moody v. Baxley

• Decision Date: 17 December 1946
• Parties: MOODY et al. v. BAXLEY et al.
• Court: Florida Supreme Court

28 So.2d 325

158 Fla. 357

MOODY et al. v. BAXLEY et al.

Florida Supreme Court

December 17, 1946

Appeal from Circuit Court, Nassau County; Bayard B. Shields judge.

Paul E Speh, of Jacksonville, for appellant E. L. Moody.

Marks Marks, Holt, Gray & Yates, of Jocksonville, for appellant Hartford Accident & Indemnity Co.

R. H Duncan, of Jacksonville, and Raymond E. Barnes, of Tallahassee, for appellees.

BUFORD, Justice.

This is a suit under the Workmen's Compensation Act. The employer owned and operated a restaurant which was operated under the name of Humpty Dumpty. L. M. Moody, a brother of the employer, was employed as manager of the Humpty Dumpty Restaurant. Baxley the employee, and claimant, was employed by the employer as a cook at the restaurant, but, in addition to his work as cook, helped do the buying of the supplies for the restaurant and was a general helper. The employee's hours for work in the restaurant were from 8:00 o'clock in the morning until 4:00 o'clock in the afternoon, six days a week. He was not employed to work on Sundays. He was frequently called upon to work at other times and when he did so was paid overtime for the additional hours he worked. Regardless of the work which he did, he was paid from the restaurant funds.

The employer owned a farm which was located in Nassau County. At the time of the accident nothing was being produced at the farm to be used in the restaurant. On the particular day preceding the night on which the accident occurred the employer had instructed his brother, the manager, and Baxley, the employee, to go that night to the farm and install a lock on a door which had been broken into. On this trip the accident occurred and Baxley was seriously injured.

Baxley's regular time to get off from his work on that day was 4:00 P.M. but he continued working at the restaurant and helping at odd jobs and purchasing supplies for the restaurant until he left with the manager, at the direction of the employer, to go on the trip on which he was injured.

Baxley's pay was $35.00 per week, but if he worked more than eight hours a day he was paid for overtime.

Baxley filed claim for compensation under Chapter 440, Fla. Statutes 1941 (same F.S.A.). The Deputy Commissioner made an award in favor of the plaintiff. On appeal the award was affirmed by the full Commission and on appeal from that order to the Circuit Court the award was affirmed. Thereupon appeal was perfected to this Court.

The appellant contends that the employee did not sustain injury by accident arising out of and in the course of his employment.

We may say here that if the injury was compensable by the employer, the liability attaches to the carrier.

Section 440.38, Fla.Statutes 1941 (same F.S.A.), inter alia, provides:

'440.38. Security for Compensation.

'(1) Every employer shall secure the payment of compensation under this chapter--(a) by insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state, or * * *.' So, when a carrier assumes to insure the payment of compensation by the employer, it is bound to pay whatever may be lawfully adjudged against the employer. In cases of this sort the courts have not been in harmony as to the liability of the employer but, after studying the case, our conclusion is that the case of Metzger et al. v. Koefler et al., 205 Wis. 339, 235 N.W. 802, comes nearer being in point with the case here under consideration than any other which has come to our attention, and we believe that the conclusion reached in that case was correct. In that case the facts appear to have been as follows: Koefler, the deceased employee, was employed by one Metzger as a painter in Metzger's business which was that of a painting contractor. Metzger directed his foreman to take some men and move furniture from Metzger's city home to his summer home. He directed the foreman to take the men and do this work after the regular working hours. The deceased employee was one of those selected by the foreman to assist in doing this work. While engaged in moving the furniture Koefler was injured and as a result died of said injuries. The...