Sweat v. Allen

• Decision Date: 28 January 1941
• Citation: 145 Fla. 733,200 So. 348
• Parties: SWEAT, Sheriff, et al. v. ALLEN.
• Court: Florida Supreme Court

200 So. 348

145 Fla. 733

SWEAT, Sheriff, et al. v. ALLEN.

Florida Supreme Court

January 28, 1941

Rehearng Denied February 26, 1941.

En Banc.

Proceeding under Workmen's Compensation Act by Ray F. Allen claimant, opposed by Rex Sweat, as Sheriff of Duval County Florida, employer, and U.S. Casualty Company, insurance carrier. From an award for claimant, employer and the insurance carrier appeal.

Judgment reversed and cause remanded for appropriate proceedings in accordance with opinion.

BROWN C.J., and THOMAS, J., dissenting. Appeal from Circuit Court, Duval County; Miles W. Lewis, judge.

COUNSEL

George A. Pierce and Samuel Kassewitz, both of Jacksonville, for appellants.

Carlton C. Arnow, of Jacksonville, and T. Franklin West, of Milton, for appellee.

OPINION

PER CURIAM.

This appeal presents the ultimate question of whether or not Ray F. Allen, the appellee and claimant, is entitled to the benefits of the Workmen's Compensation Act, Ch. 17481 Acts of 1935, as amended by Ch. 18413, Acts of 1937.

By the nature of his employment, the claimant, a deputy sheriff, was subject to being called to duty at any hour of the day or night by notification from one of his fellow employees or the sheriff, his employer, for which he was paid a straight salary per month regardless of the number of hours he worked. Under his contract, it was shown that his employer could assign him to any task in the line of law enforcement at his pleasure.

The evidence discloses that claimant was first assigned, upon becoming a deputy sheriff, to be an assistant jailer with hours of work from 7 p. m. to 7 a. m. until he was notified to assume other duties. It developed that on several occasions, in addition to this regular assignment, the appellee was called upon to assist in apprehending prisoners who had escaped jail and also to serve various papers for the office.

Prior to January 3, 1938, Allen was reassigned. His so-called regular duties, however, remained those of assistant jailer, but his hours of work were changed to begin at 7 a. m. and end at 7 p. m. While he was walking from his home to a bus line upon the public street shortly after 6 a. m. on the morning of the 3rd enroute to the county jail to begin performance of his regular duties, he was struck by a dairy truck and sustained severe injuries therefrom. Gangrene developed in the left leg, which finally required its amputation below the knee.

Appellee's claim for compensation was denied by the Florida Industrial Commission after an investigation, upon the ground that the injuries sustained by him did not 'arise out of,' his cmployment. The case was then appealed to the Circuit Court which reversed the Commission's order, and entered an original award allowing Allen $18 per week from January 3, 1938, to and including October 1, 1938, as compensation for temporary total disability, and also the sum of $18 per week from October 1, 1938, for a period of 125 weeks as compensation for the loss of the foot or as permanent partial disability. The award included the maximum allowance for medical expenses, less a credit of $400 which the claimant had received from a third party, the owner of the dairy truck. From this award the employer, Rex Sweat, and his insurance carrier appeal.

Our statute requires that an injury must both 'arise out of' and be 'in the course of' the employment in order to be compensable. § 2(5) of the Act, supra. We have said that 'for an injury to arise out of and in the course of one's employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.' Or, an injury is compensable if it occurs 'within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.' Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496.

The authorities all seem to hold that, as a general rule, injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment. Voehl v. Indemnity Ins. Co. of North America, 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245. Many exceptions have been engrafted upon this rule, and several cases have attempted to enumerate those instances where the rule is inapplicable. As we view the question, however, the criterion of its applicability depends upon the nature and circumstances of the particular employment, and 'no exact formula can be laid down which will automatically solve every case.' Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 154, 68 L.Ed. 366, 30 A.L.R. 532.

The case at bar is not that of an ordinary workman going to work; for by the very nature of the service the claimant performed, he was continuously intrusted with certain duties, namely, to protect the peace and safety of the community and apprehend those guilty of its violation. His personal life was subservient at all times to call of official service; he was, so to speak, on guard twenty-four hours a day, with no increase in salary in proportion to the time devoted. This high duty of the office rested upon the claimant and was a part of his employment notwithstanding the fact that he was immediately assigned as the jailer, for the word 'employment', as used in the Workmen's Compensation Act, refers to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964.

As shown by the record, the claimant's employment did require him to be upon the street upon occasion. And while he was not there in response to an order on the morning of his injury, he was within his employment for he was still charged with a duty or task connected therewith. We do not believe it would be denied or controverted that the injury arose out of and in the course of claimant's employment had he on that occasion been attempting to arrest a drunken driver and been run down. Yet, there is the same 'causal connection' of the employment to the injury between the facts in the illustration and those in the case at bar.

To us, the conclusion that claimant's injury arose out of and in the course of his employment is inescapable, and is sustained in other jurisdictions. In the case of Maror and Aldermen of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, compensation was awarded to the widow of a policeman whose hours of patrol duty were from moon to midnight, and who was struck by a car while on his way home shortly after midnight. And, it was held that the death of a policeman, assigned primarily to guard a particular colliery, was compensable although the fatal injury occurred in a motor car collision while deceased was on his way home after completing his regular assignment. Healey v. Hudson Coal Co., 130 Pa.Super. 462, 198 A. 684.

The case of Fidelity & Casualty Co. of New York v. Moore, supra, relied upon by appellant, is distinguishable from the case at bar, for in that case the deceased employee was engaged upon a personal mission when the accident occurred, and was neither fulfilling any of the duties of his employment nor engaged in doing anything incidental to it.

The appellant insists, however, that even if the accident arose out of and in the course of the claimant's employment no claim for compensation can be allowed under section 39(a) of the Act, supra, because the claimant executed a release to the third party who injured him and received a settlement therefor.

Section 39(a) of the Compensation Act, supra, provides that 'if on account of a disability or death, for which compensation is payable under this Act, the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect by giving notice to the employer and the Commission in such manner as the Commission may provide, to receive such compensation or to recover damages against such third person. This notice must be given within thirty days from the date of the accident.'

The evidence shows that the employer was notified of the accident the day it happened. On January 11, 1938, nine days thereafter, his report of the injury was filed with the Industrial Commission. The insurance carrier also filed its notice to controvert the claim on that day, basing the denial of liability upon the ground that the injury did not arise out of and in the course of the claimant's employment. Nowhere is it shown that claimant gave any notice of an election as required by the Act. He did, however, execute the release heretofore mentioned on May 12, 1938, and the carrier contends that the effect of this release constituted an election and thereby their right of subrogation as provided for in the Act was extinguished so that the employee can not now claim compensation.

The term 'elect', as used in section 39, does not have the meaning which it frequently has of indicating a choice between two inconsistent remedies. This is apparent from the whole tenor of the Act, for one of its paramount purposes is to insure, that an employee, injured while engaged in his employment, receives an amount equal in any event to that contemplated therein. It makes no difference whether the injury was received as a result of the employer's negligence or that of a third person not under the Act. In the latter instance, however, the Legislature has preserved the employee's common law right of action against the third...