Nos. 32019, 32066 | Fla. | May 22, 1963
Lead Opinion
The order of the deputy commissioner awarding compensation to the respondent, Florence Granlund, for the death of her husband was affirmed by the Full Commission, but so much of his order as dealt with insurance payments was reversed. We are now entertaining a petition for certiorari, and a cross petition, to review both features of the matter.
The husband was working at the cashier’s window in the automobile inspection station of the City of Miami when a police officer entered the room and removed his pistol preparatory to cleaning it. The officer appeared to remove all the cartridges, and doubtless thought he had done so, but it eventuated that one of them remained in the weapon. Without arising from his seat the husband took the gun, pointed it at a fellow employee then placed the barrel ■ at his head and pulled the trigger. The bullet the officer had overlooked brought death to the husband. The deputy found that the man was accidentally killed while he was acting within the scope of his employment and that his widow was, therefore, entitled to compensation.
That the employee’s performance was foolhardy is obvious and we think constituted horseplay of such substantial character as to amount to abandonment of his employment. For all practical purposes the man committed suicide though there is no evidence that he deliberately took his own life. The weapon could form no link with his allotted work at the cashier’s window but, on the other hand, was grabbed from a police officer who properly possessed it.
We are importuned to hold that this-case is controlled by our decision in Boyd v. Florida Mattress Factory, Inc., Fla., 128
In the cited case the claimant was an employee and officer of a corporation that maintained a boat which was used to entertain customers. Among the equipment were some cherry bombs used for the purpose of catching minnows. When the boat docked after an unsuccessful fishing trip, the claimant while moving equipment from one place in the boat to another discovered the bombs, which were so constructed that they would explode under water, impulsively lighted the fuse of one and threw it overboard. In the resulting explosion he lost the vision of his eye.
After considering the decisions dealing with deviation, horseplay, and playfulness as related to employment, the court stated that the right to compensation hinged on the element of deviation and concluded that there was no basis in logic or reason to hold that the claimant by “this trifling act vahen taken in conjunction zvith all other acts constiUtíing the conviviality required in this enforced fishing trip, deliberately and substantially stepped outside of his employment * * We have italicized the language which demonstrates some connection between the employment and the foolish prank. In the present case we can find no such relationship.
We, therefore, decline to extend the ruling in the cited case to the one we now consider.
The second phase of the case, involving the propriety of the order of the deputy commissioner requiring the payment by the City of Miami, employer, of $1147.24 which had been remitted to the hospital by the hospitalization insurance carrier, is concluded by our decision that the claim was not compensable.
The writ of certiorari is, therefore, granted, the order of the Full Commission quashed, and the cause dismissed.
Dissenting Opinion
(dissenting).
From the factual aspect detailed in the majority opinion of Mr. Justice THOMAS, I am convinced that no one can say of a certainty whether Granlund came to his death by accident, suicide, horseplay or deviation from the required course. The statute forbids that we presume suicide where there is no convincing evidence of it. The deputy commissioner found that Granlund came to his death by accident while acting in the scope of his employment and that his widow was entitled to recover. The full commission affirmed.
This court has repeatedly held that the Workmen’s Compensation Act should be liberally construed and doubts resolved in favor of the working man. Naranja Rock Co. v. Dawal Farms, Fla.1954, 74 So. 2d 282" court="Fla." date_filed="1954-07-06" href="https://app.midpage.ai/document/naranja-rock-co-v-dawal-farms-1710092?utm_source=webapp" opinion_id="1710092">74 So.2d 282; Parker v. Brinson Construction Co., Fla.1955, 78 So. 2d 873" court="Fla." date_filed="1955-03-25" href="https://app.midpage.ai/document/parker-v-brinson-construction-company-1849629?utm_source=webapp" opinion_id="1849629">78 So.2d 873; Townsley v. Miami Roofing & Sheet Metal Company, Fla.1955, 79 So. 2d 785" court="Fla." date_filed="1955-04-29" href="https://app.midpage.ai/document/townsley-v-miami-roofing-and-sheet-metal-company-1788152?utm_source=webapp" opinion_id="1788152">79 So.2d 785; Alexander v. Peoples Ice Co., Fla.1955, 85 So. 2d 846" court="Fla." date_filed="1955-12-14" href="https://app.midpage.ai/document/alexander-v-peoples-ice-company-1703346?utm_source=webapp" opinion_id="1703346">85 So.2d 846; Bailey’s Auto Ser
When, as in this case, the incidence of Granlund’s death took place within a few seconds by one of several methods and the deputy commissioner found that he came to his death by accident in the course of his employment and there is no showing of error whatever in the deputy’s finding, I can find no better reason to apply the rule approved in the above cited cases. The issues in workmen’s compensation cases do not have to be proven beyond a reasonable doubt or by preponderance of the evidence, but the thing that took place may be presumed from the logical facts. That is what the deputy did in this case and his deduction was a perfectly reasonable one. I would deny certiorari and affirm the full commission.
I, therefore, dissent.
DREW, J., concurs.
Dissenting Opinion
(dissenting).
The decedent, employed as supervisor of a city motor vehicle testing station, received his injury, according to findings of the deputy amply supported by the evidence,, in the following manner:
“On Tuesday, May 23, 1961, the employee was seated working at his desk at the cashier’s window in the City of Miami auto inspection station when a fellow employee, Officer Nagle, entered the room and removed his revolver for the purpose of cleaning same preparatory to an inspection. [Nagle ejected the bullets from the revolver on top of the decedent’s desk, but as subsequent events show all the bullets were not ejected.] At this time, the deceased took the gun from Nagle’s hand, pointed it at fellow employee, Paul B. Meyer, and then put it to his head and shot himself. He did not leave his seat at the desk where he was working and the entire incident consumed only a matter of seconds from beginning to end. The claimant died two weeks later from the effects of the gunshot wound. I find that the wound was accidentally inflicted while the decedent was within the scope of his employment.”
While I recognize that an employee’s participation in horseplay may constitute an abandonment of his employment,
Because the pattern of decisions defining course of employment generally under the Act requires a distinct and deliberate departure to defeat recovery for injuries during working hours,
With reference to the claimant’s cross petition for writ of certiorari directed to that portion of the order of the Commission herein vacating the deputy’s award of hospital expenses in amount of $1,147.24 previously paid by the carrier for a hospitalization insurance policy maintained by joint contribution of employee and employer,
“ * * * We think the deputy erred in this respect and that the Order requiring payment to the widow of this amount would in fact constitute a ‘windfall’ accruing to the widow. The record is clear that the payment to the hospital by the insurance carrier was erroneously made on the assumption that the injury and death of the employee was not the result of an accident arising out of and in the course of the decedent’s employment. As a matter of fact, the hospital insurance policy specifically excludes injuries which were sustained in the line of employee’s duty and if the instant injury of the decedent were to be considered as work-connected, the insurance carrier would not have paid any monies for hospitalization, same being covered under the Workmen’s Compensation Law. Although this amount has been paid, it would not accrue as a benefit to the widow as she has paid out no funds in this respect, but it would be a matter of adjustment between the hospital insurance carrier and the employer. Thus, the deputy’s Order in this respect should be modified by striking therefrom his directive to the employer to pay the widow the amount of $1,147.24. * * *”
The Commission’s position on this point is in my opinion untenable. The provision of the statute
I would grant the writ on claimant’s cross petition, quash the above quoted portion of the order of the Commission and remand the cause for affirmance of the deputy’s conclusion on this point.
TERRELL, J., concurs.
. Oases collected in Larson, Workmen’s Compensation Law, Yol. I, Sec. 23.64.
. The order of the Commission summarizes as follows:
“ * * * Cases such as the one confronting ns are commonly referred to as ‘horseplay’ cases and the Commission has, in several instances, affirmed awards by a deputy commissioner where ‘horseplay’ was involved. For example, see Webb v. Perini, Walsh, Mills & Blythe Bros., 2 FCR 9 (1956), also see Stitz v. City of Tampa (Police Department) Decision No. 2-923. The latter case involved a gunshot wound where a fellow officer unholstered his pistol and in a jocular mood ‘dogged the hammer back’ at which time the pistol discharged into the claimant’s shoulder. The deputy found the accident to be compensable and accordingly, awarded compensation.
“In Sun Insurance Co. v. Boyd, Fla.App.1958, 101 So. 2d 419" court="Fla. Dist. Ct. App." date_filed="1958-02-18" href="https://app.midpage.ai/document/sun-insurance-co-v-boyd-4767046?utm_source=webapp" opinion_id="4767046">101 So.2d 419, a majority of the District Court of Appeal, First District, upheld an award where the deputy commissioner found that the action of the injured employee was an unsubstantial deviation and therefore, his injury was covered by the Workmen’s Compensation Law. Subsequently, the Supreme Court denied certio-rari without Opinion in Sun Insurance Co. v. Boyd, Fla.App. [Fla.] 1958, 104 So. 2d 593" court="Fla." date_filed="1958-06-15" href="https://app.midpage.ai/document/sun-insurance-co-v-boyd-4767887?utm_source=webapp" opinion_id="4767887">104 So.2d 593. In Brannen v. Princeton Farms, Inc., 3 FCR 279 (1958), cer-tiorari denied without Opinion in*834 Princeton Farms, Inc. v. Brannen, Fla.App.1958, 106 So. 2d 240" court="Fla. Dist. Ct. App." date_filed="1958-10-30" href="https://app.midpage.ai/document/appeal-of-fidelity--deposit-co-4768385?utm_source=webapp" opinion_id="4768385">106 So.2d 240, tlie Commission upheld an award of compensation where the deceased employee, during a lull waiting for a rain shower to stop, was banging a 37 millimeter projectile against a water pipe when same exploded killing him. The Brannen case, supra, was cited by our Supreme Court in the case of Boyd v. Florida Mattress Factory, Inc., Fla.1961, 128 So. 2d 881" court="Fla." date_filed="1961-04-12" href="https://app.midpage.ai/document/boyd-v-florida-mattress-factory-inc-1924012?utm_source=webapp" opinion_id="1924012">128 So.2d 881, in which the Supreme Court held that an injury sustained by claimant when he lighted a firecracker was compensable. # $ íf if
. Larson, note 1 supra, Sec. 23.63, citing Wickham v. Glenside Woolen Mills, 252 N.Y. 11" court="NY" date_filed="1929-10-15" href="https://app.midpage.ai/document/matter-of-wickham-v-glenside-woolen-mills-3614136?utm_source=webapp" opinion_id="3614136">252 N.Y. 11, 168 N.E. 446 (employee injured while crossing room to borrow tobacco.)
. Cone Bros. Contracting Co. v. Allbrook, Fla.1943, 153 Fla. 829" court="Fla." date_filed="1943-12-14" href="https://app.midpage.ai/document/cone-brothers-contracting-co-v-allbrook-3394997?utm_source=webapp" opinion_id="3394997">153 Fla. 829, 16 So.2d 61; N & L Auto Parts Co. v. Doman, Fla.1960, 111 So. 2d 270" court="Fla. Dist. Ct. App." date_filed="1959-01-29" href="https://app.midpage.ai/document/n--l-auto-parts-company-v-doman-1829225?utm_source=webapp" opinion_id="1829225">111 So.2d 270; Fla., 117 So. 2d 410" court="Fla." date_filed="1960-01-13" href="https://app.midpage.ai/document/n--l-auto-parts-company-v-doman-1762036?utm_source=webapp" opinion_id="1762036">117 So.2d 410; Naranja Rock Co. v. Dawal Farms, Fla.1954, 74 So. 2d 282" court="Fla." date_filed="1954-07-06" href="https://app.midpage.ai/document/naranja-rock-co-v-dawal-farms-1710092?utm_source=webapp" opinion_id="1710092">74 So.2d 282. Cf. Tucker Taxi, Inc. v. Schofield, Fla.App., 107 So. 2d 188" court="Fla. Dist. Ct. App." date_filed="1958-12-02" href="https://app.midpage.ai/document/tucker-taxi-inc-v-schofield-4768603?utm_source=webapp" opinion_id="4768603">107 So.2d 188, and White v. C. & H. Lyne Foundry & Mach. Co., Fla.1954, 74 So. 2d 538" court="Fla." date_filed="1954-09-03" href="https://app.midpage.ai/document/white-v-c-h-lyne-foundry--machine-co-7406960?utm_source=webapp" opinion_id="7406960">74 So.2d 538, for definitions of intentional injuries and disregard of probable consequence of infraction of safety rules. F.S. Sec. 440.01 et seq., 440.09(3), F.S.A.
. See Florida Appellate Rules, 1962 Revision, Rule 4.5e(3), 31 F.S.A., concerning cross-petitions in proceedings of this nature.
. “Medical services * * * (1) The employer shall furnish to the employee
The record indicates that other objections by the City to the payment in question are raised initially and improperly in its brief here.
. Continental Casualty Co. v. Buchan, Fla.1954, 72 So. 2d 269" court="Fla." date_filed="1954-04-27" href="https://app.midpage.ai/document/continental-cas-co-v-buchan-7406470?utm_source=webapp" opinion_id="7406470">72 So.2d 269.
. Lyng v. Rao, Fla.1956, 87 So. 2d 108" court="Fla." date_filed="1956-05-02" href="https://app.midpage.ai/document/lyng-v-rao-7409157?utm_source=webapp" opinion_id="7409157">87 So.2d 108.
Concurrence Opinion
(concurring).
I agree to the disposition of this case for the reasons announced in the opinion of Justice THOMAS. However, in so doing, I do not concede that there was any employment-related injury in Boyd v. Florida Mattress Factory, Inc., Fla., 128 So.2d 881. I dissented from the Boyd decision for reasons which lead me to concur with the majority here.