Shelby Mut. Ins. Co. v. Aetna Ins. Co., 39868

CourtUnited States State Supreme Court of Florida
Citation246 So.2d 98
Decision Date31 March 1971
Docket NumberNo. 39868,39868
PartiesSHELBY MUTUAL INSURANCE COMPANY, Workmen's Compensation Carrier for T & R Packing Company, Inc., Petitioners, v. AETNA INSURANCE COMPANY, Workmen's Compensation Carrier for T & R Farms, Respondents.

B. C. Pyle, of Whittaker, Pyle & Wood, Orlando, for petitioners.

Jesse F. Sparks, of Gurney, Gurney & Handley, Orlando, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to the Industrial Relations Commission. The sole question presented is whether the accident, which resulted in the death of Paul Peterson, occurred within the scope of Peterson's regular employment with T & R Packing Company (Carrier, Shelby Mutual) or while Peterson's status was that of a special or loaned employee of T & R Farms (Carrier, Aetna Insurance Company). The dispute is between the two insurance carriers as to the proper carrier to pay the benefits involved. The rights of the decedent's widow and minor children are not directly affected.

Determination of Peterson's status at the time of the accident requires examination of the facts and for this purpose we accept the following findings of fact as stated in the Order of the Judge of Industrial Claims:

'The decedent prior to working at T & R Packing Company Inc., was employed by T & R Farms and was paid an hourly rate. In December of 1968, decedent worked for T & R Farms as a drag line operator which lasted about 2 weeks. When the decedent was working at the farm he worked on a harvesting machine which belonged to T & R Packing Company. When Peterson was transferred to T & R Packing Company from T & R Farms he was paid a salary. The last pay period from T & R Farms was December 22, 1968. From then on decedent was paid by T & R Packing Company, Inc., and except for the day of his accident he had not returned to the farm but had confined his work to the packing house premises. The decedent took orders from Harold A. Scoggins, foreman at T & R Packing Company and at no time did Mr. Scoggins instruct the decedent to do any work at the farm. The decedent, however, was subject to orders from the shareholders and officers of the corporation who were also the partners in T & R Farms.

'On March 1, 1969, the decedent elated over the birth of a son after having 5 girls, informed Mr. Scoggins that he was not going to work on Saturday, March 1st at the packing house but was going to celebrate the happy event. After he had gone to the farm to look for a wrench he owned personally and had left there while working on the harvester which was owned by T & R Packing Company, Inc. (sic) The decedent went to the farm to look for the wrench and while there, Mr. J. A. Tedder, a partner in T & R Farms and a principle (sic) shareholder in T & R Packing Company, Inc., ask (sic) the decedent if he would weld a coalter that had broken out of its hub before he left. Complying with this request the decedent placed the coalter on a 55 gallon drum to weld it and when he stuck the electrode to the coalter the drum exploded. The contents of the drum ignited and burned decedent upon 95% Of his body. He expired the next day.

'There was no exchange of employees between the farm and the packing house or vice versa.'

Based on the foregoing facts, the Judge concluded that the decedent, at the time of the accident, was acting as an employee of T & R Packing Company, Inc., and was not a special or loaned employee of T & R Farms. The Judge, therefore, ordered Shelby Mutual Insurance Company to continue payment of compensation and found no liability on the part of Aetna Insurance Company. The Full Commission affirmed.

Shelby Mutual has petitioned to this Court contending that the Judge and Full Commission have failed to apply the law regarding loaned or special employees as set out in Berrier v. Associated Indemnity Co., 1 and Stuyvesant Corp. v. Waterhouse. 2 In both of those decisions the employee was found to be a loaned or special employee at the time of the accidents there involved. There are factual similarities between those cases and the case before us. However, there are several important distinctions. In both the Berrier and Stuyvesant cases, there was a definite arrangement made between the general and special employers regarding the employees' services, and the employees were aware of these arrangements. In addition, the special employer in each case undertook to pay some compensation for the services rendered by the special employee.

In the instant case there was no arrangement between the farm and the packing house regarding Peterson's services. He was paid his regular wages by T & R Packing House and never received any compensation from T & R Farms for his occasional services to the farm, after his employment by the packing house.

The testimony of Mr. Robert Reedy, one of the owners of both the farm and the packing company, was that when Mr. Peterson happened to be out at the farm, he would, on occasion, he asked to repair something for the farm. There is the following testimony by Mr. Reedy, Regarding who paid for Peterson's work at the farm:

'Q When he, when you sent him, he happened to be out there working (inaudible) and they got him to do something for the farm, did you have the farm to pay him for that or did you just go ahead and pay him his regular salary?

'A We paid him his regular salary. I will say this. He hadn't did too much for the farm, I'll say just occasionally.

'JUDGE: I have a question I'd like to ask. Now, you didn't pay him anything extra for these little doo dads he was doing out at the farm?

'WITNESS: No sir.

'JUDGE: Just paid him his regular salary?

'WITNESS: Yes, sir.'

The testimony is undisputed that Peterson was paid $125.00 per week by the packing company for a five or six day week. On the day of the accident, a Saturday, he was receiving his regular pay from the packing company. Mr. Reedy testified:

'Q Alright, this Saturday, March 1st, he ordinarily would work a six-day week for the salary of $125, is that correct?

'A A five and sometimes six.

'Q Alright, so this Saturday then that the accident happened was merely a day that he took off?

'A That is correct.

'Q And was he instructed that when he got through with that...

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