Swartzer v. Food Fair Stores, Inc., 33355
| Decision Date | 12 May 1965 |
| Docket Number | No. 33355,33355 |
| Citation | 175 So.2d 36 |
| Parties | Alice Dorothy SWARTZER, Petitioner, v. FOOD FAIR STORES, INC., and the Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Nichols, Gaither, Beckham, Colson & Spence, Lloyd W. Jabara and Robert Orseck, Miami, for petitioner.
Dean, Adams & Fischer, Joseph Anthony Reinert, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.
We are asked to review an order of the Full Commission which affirmed an order of the deputy denying claimant's claim for death benefits under the Florida Workmen's Compensation Act. The facts were stipulated:
Plaintiff's deceased husband had been employed by Food Fair Stores, Inc., in a store located within two miles of his home. His employer wanted to transfer him to a store twenty miles away and the employee agreed only upon the condition that the employer pay him his transportation costs which he estimated as $5.00 per week. The employer accepted this proviso and thereafter he received $5.00 per week out of petty cash with the receipts labelled 'gas ALLOWANCE, WEEK ENDING _____' OR 'TRANSPORTATION, WEEK ENDING _____'. no deductions for social security or withholding were made from these amounts. The employee was killed in a train-car crash while driving from the store to his on his reqular route.
The deputy held that these facts were not within any exception to the 'going and coming' rule and denied the claim. The Full Commission affirmed.
The rule for determining whether or not the particular facts of a case bring it within the going and coming rule or make it an exception thereto was laid down for this jurisdiction by Southern States Mfg. Co. v. Wright, 1 wherein we said:
'Generally it appears that the employer's liability in such cases depends upon whether or not there is a contract between employer and employee, express or implied, covering the matter of transportation to and from work.' 2
Once an obligation to furnish transportation is demonstrated, by whatever means satisfied, then '[t]he hazards of the highway [are] inherent' 3 in the contract of employment and claims arising therefrom are compensable as arising out of and in the course of the employment.
Applying the rule to the facts presented by the instant case, we find a specific contract. The employer agreed to and actually did pay the employee's transportation costs in exchange for the employee's transferring to a store twenty miles away. There was a clear meeting of the minds of the competent parties and a valuable consideration to each. The matter of transportation was the keystone of the contract for the employee's salary remained the same. It is a matter of no moment that the agreement was to pay the cost of the employee's transporting himself in his own car rather than furnishing him with a ride in the employer's vehicle. 4
The argument advanced by the employer in this case is based upon language taken from the opinion in Jacksonville Coach v. Love (1957) Fla., 101 So.2d 361, to the effect that the contract did not subject the claimant to the control of the employer in his journey to and from work and did not extend the coverage of the act to such journey. From this the employer deduces a rule that there can be no coverage where the employer does not control the actual transporting. This is not a legitimate deduction from Jacksonville. Coach. There the employer was a bus company which had entered into a contract with the union which included among the fringe benefits of employment the right of employees and their wives to ride free on any of the company's buses at any time. We held that from this no contract to transport the employees to and from work could be inferred. The gratuity furnished was not directed toward transporting the worker to his place of employment and the fact that the worker might utilize it for this purpose could not make it into an obligation of the employer to this end.
The phrase 'control of the employer' as employed in Jacksonville Coach was a term of art rather than having the literal meaning of actual, physical control. This is made clear in the portion of the...
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