Strickland v. Al Landers Dump Trucks, Inc.

• Decision Date: 21 December 1964
• Docket Number: No. 33368,33368
• Citation: 170 So.2d 445
• Parties: Gus P. STRICKLAND, Petitioner, v. AL LANDERS DUMP TRUCKS, INC., Maryland Casualty Company and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 445

170 So.2d 445

Gus P. STRICKLAND, Petitioner, v. AL LANDERS DUMP TRUCKS, INC., Maryland Casualty Company and Florida Industrial Commission, Respondents.

No. 33368.

Supreme Court of Florida.

Dec. 21, 1964.

Rehearing Denied Jan. 28, 1965.

Knight, Smith, Underwood & Peters, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.

O'CONNELL, Justice.

The claimant, Gus P. Strickland, seeks review of an order of the Florida Industrial Commission affirming an order of the deputy commissioner denying his claim for workmen's compensation benefits.

Claimant, the owner-driver of a dump truck, was, at the time of his injury, a hauler with the respondent, Al Landers Dump Trucks, Inc. The respondent appears to be an 'association' of truckers in which members pay an entrance fee and monthly dues presumably for the right to get on the working line.

Earnings were figured once a week by the respondent, and were based on the weight of materials hauled and the distance traveled. From the weekly gross earnings, the respondent deducted its commission, a percentage for automobile liability insurance, and a percentage for workmen's compensation insurance.

At the time of his injury, Strickland was engaged in the hauling of cement being used in the construction of the North-South Expressway in the City of Miami; a job Al Landers Dump Trucks, Inc., had obtained from the road contractor.

During a day of hauling, cement and solid concrete had a tendency to accumulate in the hopper-compartment of the truck. The state road inspectors had given instructions that any loads of cement containing hardened cement or concrete would be rejected; therefore, it was necessary that, before going to work each day, the accumulated particles of hardened cement be removed from each truck. The respondent required each hauler to do this each day.

On August 4, 1961, petitioner finished his hauling and drove his truck home. He began to clean the truck, as was the custom, by beating out the accumulated matter with a sledge hammer and chisel. The complained of injury was sustained when, after climbing out of the truck, Strickland stooped to pick up a water hose in order to wash out the interior of the truck, and started to pull out the tailgate. Upon starting to straighten up, he found that he was unable because of a severe pain in his lower back.

Petitioner testified that he was physically unable to operate his dump truck after the injury, and that he ultimately was forced to sell it. Moreover, because of his physical condition, he could not work regularly at any type of employment. On May 31, 1962, he filed his claim for compensation benefits.

The deputy commissioner's denial of the claim was based on a finding that the petitioner was an independent contractor, and that despite the fact the respondent voluntarily furnished workmen's compensation coverage, the petitioner still was not entitled to compensation benefits, because he was engaged in personal work, and not the work of his employer, at the time of his accident.

The petition before us raises the following issues:

(1) Whether claimant was, at the time of his injury, an independent contractor or an employee

(2) Whether the accident was one arising out of and in the course of employment.

(3) Whether the deputy's finding of average weekly earnings was supported by competent, substantial evidence.

(4) Whether payments should be allowed to petitioner's physician for services rendered.

With respect to the first issue, i. e., whether claimant was an employee or an independent contractor, we accept the deputy's finding that claimant occupied the status of an independent contractor.

Ordinarily this would exclude claimant from the provisions of the Workmen's Compensation Act. But in this case, the respondent voluntarily caused a policy of workmen's compensation insurance to be issued covering claimant. Under the provisions of Section 440.04(3), F.S.A., the acceptance of the policy by the respondent and the writing of it by the carrier constitute a waiver of the exclusion of claimant from the Act and operate to bring the claimant under its coverage.

Having concluded that the claimant is entitled to the benefits of the Act the next issue for decision is whether the claimant's activity at the time of his injury was reasonably related to the performance of his contract with the respondent.

We have not previously been required to decide the scope of coverage of the activities of one who is not an 'employee' within the meaning of the Act, but who is nevertheless entitled to its benefits.

Claimant, although contending in the alternative that his injury occurred within the scope of his employment under the traditional test, argues that the range or scope of the coverage afforded the activities of an independent contractor, who is covered by the Act, is broader than in the case of a true employer-employee relationship.

There is merit to this argument. It would be illogical to determine that one who is in fact an independent contractor,...