Pixley v. Packer Pontiac Co.

• Citation: 131 So.2d 721
• Decision Date: 30 June 1961
• Docket Number: No. 30999,30999
• Parties: Dale Wendal PIXLEY, Petitioner, v. PACKER PONTIAC COMPANY, Corporate Group Service, Inc., and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 721

131 So.2d 721

Dale Wendal PIXLEY, Petitioner, v. PACKER PONTIAC COMPANY, Corporate Group Service, Inc., and Florida Industrial Commission, Respondents.

No. 30999.

Supreme Court of Florida.

June 30, 1961.

Welsh, Cornell, Pyszka & Carlton, Miami, for petitioner.

Berson, Barnes & Inman, Orlando, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

DREW, Justice.

Petitioner seeks to review an order of the full commission reversing an order of the deputy commissioner and dismissing claim of petitioner for compensation and medical benefits provided by the Florida Workmen's Compensation law.

The pertinent facts appear in the compensation order of the deputy commissioner, the germane portions of which appear in the footnote. ¹

The deputy commissioner found the claimant's departure from the premises of his employer for a matter of moments was 'so insubstantial as not to constitute a deviation from his employment and that the employee's departure was for the ultimate benefit of the employer whose interest would be served by the fact that rush work was to be completed as a result of the employee's willingness to work overtime' and thereby sustained claimant's contention that the injury was one arising out of and in the course of his employment.

The keystone of the reversal of the full commission is contained in the following sentence: 'The employee herein left his work on a purely personal mission to move his car to another location and while he was engaged in this personal mission he sustained the injuries which are the subject of his claim.'

Our review here is confined to a determination of whether the full commission was ultra fines mandati in its action.

We again point out that the full commission, as stated in, among other cases, Wiedman v. Daryl Products Corporation, Fla.1961, 127 So.2d 448, 450, is not authorized to make findings of fact:

'The full commission, while it has the statutory obligation to affirm, reverse, modify or remand, must do so, so far as factual matters are concerned, on the basis of the findings of facts of the deputy and not on the separate substituted findings of its own.' ²

The full commission relies on the case of Alan Wright Funeral Home, Inc. v. Simpson, Fla.1957, 93 So.2d 375 in support of its order. We cannot agree that the instant case is in conflict with Simpson. On the contrary, it is clearly distinguishable. In Simpson 'the deputy commissioner found 'as the time of the accident claimant not crossing the street in response to a call nor was he under the direction of his employer. His duties for the day had been completed and he was free to go where he pleased as long as he left word at the funeral home of his whereabouts.' (Emphasis added) Nevertheless the deputy commissioner held that the injuries sustained in the accident were compensable and his order was affirmed by the full commission.' (text page 376.)

The wrong conclusion of law was drawn by the deputy in Simpson from the evidence submitted to him. This is clearly apparent from the following observation in the opinion:

'We have never held, or intimated, that 24 hour call duty afforded a blanket of coverage to an employee without regard to his activity at the time of injury.'

In the instant case the full commission fell into error by issuing its ukase that the finding of the deputy was not supported by competent substantial evidence and finding as a matter of fact that the employee left his work on a purely personal mission when the deputy found, as a fact, that his actions were for the ultimate benefit of his employer, a conclusion supported by the kind and quality of evidence required by our decisions. ³ The separate substituted finding of the full commission was without the scope of its jurisdiction and was as erroneous as the legal determination there was no competent substantial evidence to support the legal conclusion of the deputy commissioner.

The petition for writ of certiorari is granted and the order of the full commission is quashed with directions to the full commission to reinstate the order of the deputy commissioner. In such order it shall allow claimant's counsel reasonable fees for his services in this cause before the full commission.

It is so ordered....