Neuman v. Shelbourne Grand Hotel

• Decision Date: 23 January 1945
• Citation: 20 So.2d 677,155 Fla. 491
• Parties: NEUMAN v. SHELBOURNE GRAND HOTEL et al.
• Court: Florida Supreme Court

20 So.2d 677

155 Fla. 491

NEUMAN v. SHELBOURNE GRAND HOTEL et al.

Florida Supreme Court

January 23, 1945

Rehearing Denied Feb. 23, 1945.

Appeal from Circuit Court, Dade County; George E. Holt, Ross Williams, and Paul D. Barns, Judges.

Julius F. Parker and Millard Caldwell, of Caldwell &amp Parker, all of Tallahassee, Harry A. Gair, of New York City and Rosenhouse & Rosenhouse, of Miami, for appellant.

Blackwell Walker & Gray, of Miami, for appellees.

BROWN, Justice.

This is an appeal from the judgment of the Circuit Court in and for Dade County affirming the order of the Florida Industrial Commission denying appellant a compensation award for injuries sustained while an employee of the Floridian Hotel in Miami Beach Florida, which Hotel is owned and operated by the appellee Shelbourne Grand Hotel.

The Deputy Commissioner found that the claimant, appellant here, was an employee of the Hotel at the time of the accident, and that the she sustained a serious and disabling injury by reason of said accident, but he further found that the accident did not arise out of and in the course of her employment.

The testimony showed that claimant had been a hostess for the Floridian Hotel for nine years and that her room in the Hotel and her meals were furnished her in part consideration for her services. Her duties included the meeting of newly arrived guests, introducing guests to each other, arranging card games and other social activities between the guests, taking care of patrons who were ill and getting a doctor for them when necessary, acting as a companion to those of the guests that desired one, creating conversation at the dining table, arranging parties, and generally seeing to it that the guests of the Hotel had all the social activities as well as consideration for their welfare and comfort that first class tourist hotels generally afford. She also did shopping for patrons of the hotel who would ask for that accommodation. In order to carry out her duties her room was furnished with a telephone just as the guests' rooms were, and her services as a hostess were made available to the guests whenever needed. She had frequent calls over the telephone, some times late at night, and had no regular hours of work but was subject to call at any time. As to the accident, and the way it happened, claimant testified as follows:

'Q. And what happened? A. I was shopping for some of the guests in the afternoon and I came back to my hotel and I was going to take a shower, which I always do--a bath, which I always do before I get dressed to do the rest of my duties. The operator called me and told me that one of the guests didn't feel good in a certain room and I should please go there, which I always do.

'Q. The operator of the hotel called you? A. Yes.

'Q. And told you to go take care of another guest? A. That wasn't feeling well.

'Q. You had done that before? A. Oh yes; that was one of my duties.

'Q. Then what happened? A. I was all undressed, so I figured instead of taking a bath I would take a shower. I took a shower. While I was under the shower the telephone rang and as I turned around to get out in a hurry to answer it I slipped. There was no mat on the tub.

'Q. You fell? A. I fell.

'Q. And you hurt yourself? A. That's right.'

On cross-examination her testimony on this point was practically the same, except that she stated that she did not know who was calling the second time, as she could not get to the phone but she thought the operator was probably calling her again.

Part of her testimony on cross-examination was as follows:

'Q. Then as you completed your bath the phone rang again? A. As I turned off the shower the phone rang; as I turned around to get a towel that is when I slipped.

'Q. On the second phone call. A. Yes. The towel was on the end of the tub by the bath there and there was a basin right next to the tub unless you come down on--I guess that's where I must have hurt myself so badly, I don't remember after that very much.'

If this testimony was true, claimant was entitled to an award of compensation. It was her duty to answer phone calls when she was in her room and when the phone rang the second time and she turned to answer it, and while so doing slipped and fell in the bath tub, this accident certainly arose out of and in the course of her employment. But the deputy commissioner did not credit this testimony of the claimant, the appellant here, because some time before this testimony was given, she had made certain statements in which she did not mention the telephone calls. She had told Dr. Jenkins, the Hotel physician who was called to her aid almost immediately after the accident, that she had slipped and fallen while taking a shower and that she had made similar statements to Dr. D. Ward White and Dr. Shevlin. These statements were made on March 21st and 22nd and May 18th of 1942, and she gave the adjuster for the carrier a few days after the accident happened a written statement in which she again said that:

'I was taking a shower in my bath room. The shower comes into the tub and I was standing in the tub under the shower when I slipped and fell. There was no mat in the tub.'

Several months after the accident, after she had been in hospitals in Miami Beach and in New York, the latter being her home State, she filed a claim in the Department of Labor of the State of New York and advised the Florida Industrial Commission that she was doing so, due to the doubt as to the jurisdiction, but that she wished to preserve her right under the Florida Compensation Act. In the claim filed in New York in response to one of the questions in the questionnaire, 'How did the accident happen?' Claimant wrote:

'Took shower; no mat in tub. Slipped and fell, sustaining severe injuries.'

After reciting the above matters, the deputy commissioner stated his conclusion as follows:

'Thus, on five different occasions before trial, claimant clearly reported and said that she fell while taking a shower. At the first hearing, she gave a different version, testifying that she fell after taking a shower and while hurrying to answer the telephone in her room.

'After consideration of all the evidence and testimony relating to the aforesaid question two, the undersigned Deputy Commissioner is of the opinion, and so finds, that claimant fell while taking a shower and not while she was proceeding to answer the telephone or making preparation therefor.'

It will be noted that the Deputy Commissioner does not take the position that her testimony on the trial was in contradiction of her previous statements to the doctors and the insurance adjuster. His position seems to have been that because she testified on the trial to certain details connected with the accident which she did not theretofore mention, her testimony as to these additional details was not worthy of belief.

Doubtless the average employee thinks that if he is accidentally injured during the time of his employment he is entitled to workmen's compensation, and that all he or she has to do is to state what the accident actually was and the immediate injuries sustained. We see no real inconsistency in the various statements made by the claimant. It is true in one place she said she fell shile taking a shower and in another she said she fell immediately after turning off the shower and in her first statement she said that...