Warg v. City of Miami Springs

• Decision Date: 09 June 1971
• Docket Number: No. 40264,40264
• Court: Florida Supreme Court
• Parties: John C. WARG, Petitioner, v. CITY OF MIAMI SPRINGS et al., Respondents.

Page 3

249 So.2d 3

John C. WARG, Petitioner, v. CITY OF MIAMI SPRINGS et al., Respondents.

No. 40264.

Supreme Court of Florida.

June 9, 1971.

Bernard H. Butts, Hialeah, for petitioner.

Thomas C. Britton and Alan Dimond, Asst. Dade County Atty., Miami, for respondents.

McCAIN Justice.

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission. The sole issue presented for our consideration is whether claimant Warg's injury arose out of and in and course of his employment. The Full Commission reversed the affirmative ruling of the Judge of Industrial Claims on this issue. In our judgment and reversal was error and the compensation order of the Judge of Industrial Claims should have been sustained.

The facts are not disputed. At the time of the accident, claimant was a policeman employed by the City of Miami Springs as a detective. His duties involved every facet of police work including investigation, reports, arrests, and the power to issue traffic citations. His regular hours of duty were from 8:00 A.M. to 4:00 P.M. but he was on 24 hour call and did on occasion work overtime. He was paid a flat salary and did not receive overtime pay for work performed in excess of 40 hours. He was required to carry a gun at all times.

The accident occurred shortly after 4:00 P.M. while claimant was driving home from work in his personal automobile by the most direct route. Approximately 12 blocks from the Police Station, but within the city limits of the City of Miami Springs, ¹ another vehicle, attempting to make a left turn, cut in front of claimant's car, causing the accident. Claimant, although injured in the collision, assisted the Police at the scene in a limited manner and had the power to charge the party at fault with a citation.

The general rule in Florida, as in most other states, holds that 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. This is commonly referred to as the 'going and coming' rule. See Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495 (1940), and Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941).

This Court established an exception to the 'going and coming' rule in Sweat v. Allen, Supra. In that case claimant was a deputy sheriff, performing the functions of a jailer with specific hours of employment but subject to call at all other hours. He was injured while walking on the public street from his home to the bus line shortly after 6:00 A.M., about an hour before commencement of his regular hours of work but while on his way to begin the performance of his duties. In disposing of the contention that the jailer was not protected by the provisions of the Act, we said:

'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...