Tipper v. Great Lakes Chemical Co.

Decision Date25 July 1973
Docket NumberNo. 43458,43458
Citation281 So.2d 10
PartiesLouis TIPPER, Sr., Petitioner, v. GREAT LAKES CHEMICAL COMPANY et al., Respondents.
CourtFlorida Supreme Court

Steve M. Watkins, of Watkins & Hill, Tallahassee, for petitioner.

Donald O. Hartwell of Hartwell & Hall, and W. K. Whitfield, Tallahassee, for respondents.

ERVIN, Justice.

We have for review by petition for writ of certiorari, a decision of the Industrial Relations Commission which reversed a decision of the Judge of Industrial Claims. We have jurisdiction pursuant to Florida Constitution, Article V, Section 3(b)(3) (1973), F.S.A.

On Sunday, August 8, 1971, a tractor-trailer owned by the employer, respondent herein, and enroute from El Dorado, Arkansas, was involved in a traffic accident in Gadsden County outside of the city limits of Quincy, Florida. The truck was loaded with cylinders of methyl bromide gas, which were damaged as a result of the collision. Deadly gas began escaping from the cylinders immediately following impact.

Sergeant Cecil E. Ellis of the Department of Public Safety of Quincy, Florida, received notification of the accident and he, in turn, notified the office of the Sheriff of Gadsden County and Chief of Police of Quincy, R. D. Edwards. Chief Edwards instructed Sergeant Ellis to contact the claimant, petitioner herein, because of his expertise in the handling of deadly gases as part of his regular employment with Southern Chemical Sales and Service, Inc., of Quincy, Florida (hereinafter 'Southern Chemical'). Louis Tipper, Sr., the petitioner, responded immediately to Sergeant Ellis' call for aid and, after obtaining gas masks, proceeded from his home to the scene of the accident.

Upon arriving at the scene, the claimant found approximately twenty cylinders of methyl bromide scattered over the highway. Some of the tanks were ruptured, posing a threat to the safety of onlookers, who were gathering in the vicinity of the escaping gas. Traffic was backed up for a distance of approximately two miles. Tipper worked in and around the toxic gas for some five or six hours, offering advice and rendering assistance during the clean-up operation. He was finally able to return home at around 1:15 A.M. the following morning, and he then noticed he had chemical burns on his feet.

On Monday morning, August 9, claimant reported to work at his regular employment with Southern Chemical and met Mr. Joe Ford, employed as a safety man with respondent, Great Lakes Chemical Company (hereafter 'Great Lakes'). Mr. Ford expressed concern over Tipper's exposure to the toxic gas and suggested that he 'see a doctor.' Mr. Tipper visited Tallahassee Memorial Hospital, where he was hospitalized for over three weeks and temporarily totally disabled until December 13, 1971.

A claim for workmen's compensation was originally filed by the claimant against Great Lakes, and the Sheriff's Department of Gadsden County, Florida. The Sheriff's Department was dismissed as a party in this cause after the evidence failed to connect the Sheriff's Department with the claimant's work activities. Evidence introduced at the hearings held on November 29, 1971, February 4, 1972, and February 23, 1972, was directed in large part at the issue of whether the claimant was an employee of respondent at the time of the accident. The Judge of Industrial Claims, after reviewing the facts as outlined above, stated the issue and the reason for his conclusions as follows:

'The subject case involved a public emergency situation. It also involved the recruiting of the claimant because of his knowledge and experience in dealing with Methyl Bromide. The precise question presented is whether or not the Chief of Police of the City of Quincy or his designate, had the authority to engage the claimant on behalf of Great Lakes Chemical Company. Under the circumstances of this case, I find that he did.

'I base my conclusions on several grounds: (1) As a police officer, in a public emergency, he had the authority to engage the claimant on behalf of the employer; (2) from the facts, an implied contract of employment was established, which was confirmed the following morning when Mr. Joe Ford of Great Lakes Chemical Company was advised of services rendered by the claimant and told Mr. Tipper to see a doctor; (3) the services rendered by the claimant were beneficial to the employer and advanced his interests.'

The Industrial Relations Commission, upon application for review of the Judge of Industrial Claims' order allowing compensation, reversed that decision and dismissed petitioner's cause. In a lengthy opinion, the Commission conceded that an implied contract of employment was a 'possibility' under certain circumstances, but that the events of August 8, 1971, involving the claimant, would not support such a conclusion as a matter of law. The Commission stated:

'It is to be borne in mind that even as the appellee (petitioner) was employed throughout by Southern Chemical, the accident and the events of August 8 involving this employee occurred in the unincorporated area of Gadsden County, and the appellee was induced to attend the accident and perform his genuinely commendable services by a police officer of the municipality of Quincy--which officer had no obvious jurisdiction in an unincorporated Gadsden County, and no evidence was adduced to support such jurisdiction. Nevertheless, the Judge stated the issue fairly and concluded, without statement of any rationale, that the Chief of Police of Quincy had the authority to hire the appellee in unincorporated Gadsden County for and on behalf of the appellant/employer, Great Lakes Chemical Company. There is no decisional, statutory or textual authority which has been cited to support such congeries of elisions.'

Additionally, the Commission stated that even if there were an implied contract of hire, there was no finding that the claimant was an 'employee' as distinguished from an 'independent contractor.' In support of that argument, the Commission observed that the claimant brought his own materials to the scene of the accident and took no orders from any of respondent's supervisors, who never had the opportunity to know of the claimant's presence at the scene. For these reasons, the Commission ruled that the Judge of Industrial Claims erred as a matter of law in finding the existence of an employment relationship, and accordingly denied petitioner workmen's compensation benefits.

The basic issue in petitioner's cause, which he now asks this appellate body to review and decide, is: Whether the service performed by the claimant for the respondent amounted to an implied contract of employment within the contemplation of, F.S., § 440.02(2), F.S.A.

F.S., Section 440.02(2)(a), F.S.A. provides:

"Employee' means every person engaged in any employment under Any appointment or contract of hire or apprenticeship, Express or implied, oral or written, including...

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