Summary
In Gregory v. McKesson Robbins, 54 So.2d 682 (Fla. 1951), an accountant was sent by his employer to inventory a store in another city. He drove himself there in his own automobile.
Summary of this case from Davis v. Roadway Exp., Inc.Opinion
November 2, 1951.
Appeal from the Circuit Court, Broward County, George W. Tedder, J.
Allen Clements, Miami, for appellant.
Blackwell, Walker Gray, Miami, for appellee McKesson Robbins, Inc.
Wendell C. Heaton, Tallahassee, for appellee Florida Industrial Commission.
Lawrence G. Lally, Miami, for appellees Moore's Drug Store, Inc., and Bituminous Cas. Corp.
Appellant (claimant below) was employed regularly as an accountant with the appellee firm of McKesson Robbins, Inc. On May 26, 1944, appellant upon the direction of his employer left Miami via automobile for West Palm Beach to take inventory in Moore's Drug Store in that City. He was to be compensated by the hour and his automobile expenses were to be paid from the funds of the latter firm, of which appellant was secretary-treasurer. After taking inventory the entire night and up until almost noon of the succeeding day, appellant left to return to Miami. While driving his automobile on a two-lane State Highway proceeding south, approximately two miles south of Hollywood, Florida, he attempted to pass a car going in the same direction. Both of the tires on the left side of appellant's automobile struck certain white cement markers, commonly referred to as "stone mushrooms," causing said tires to blow out. To avoid collision with an oncoming vehicle, appellant swerved the car off the road where it overturned injuring appellant. At the time of the accident he was admittedly proceeding at a speed of some 75-80 miles per hour.
Appellant, who now is employed in the State of Georgia, filed a claim for compensation under the Florida Workmen's Compensation Act. Testimony was taken before the Georgia Industrial Commission by stipulation of the parties. The Florida Deputy Commissioner made the following findings based upon the testimony taken before the Georgia Commission: (1) That claimant at the time of the accident was an independent contractor; (2) that claimant was engaged in a joint adventure, and (3) that the accident resulted from the violation of a safety rule as set forth in Section 320.50, Florida Statutes, 1941, F.S.A., since superseded.
The appellant filed his petition for review before the full Commission of the Florida Industrial Commission, which, after hearing, sustained the order of the Deputy Commissioner denying compensation, but solely on ground (3) above enumerated, to-wit: that claimant had violated a safety rule required by statute. The full Commission expressly overruled the Deputy Commissioner's findings that appellant at the time of the accident was an independent contractor and was engaged in a joint adventure and concluded that appellant sustained the injury as an employee of McKesson Robbins, Inc. The appellant then appealed to the Circuit Court which sustained the order of the full Commission.
The only questions presented for our determination revolve around Section 440.09(3), Florida Statutes 1941, F.S.A., the pertinent portion of which reads: "No compensation shall be payable if the injury was occasioned primarily by [the employee's] willful refusal to use a safety appliance or observe a safety rule approved by the commission or required by statute, and brought prior to the accident to the knowledge of the employee."
This is the first time we have had occasion to construe this particular statutory language. At the threshold we deem it appropriate to observe that the words "and brought prior to the accident to the knowledge of the employee" are of no significance when the statute is not only a general law, penal in character — which everyone is presumed to know — but in this "horseless carriage" age it is actually a matter of common knowledge. Aetna Life Insurance Co. v. Carroll, infra.
The appellant contends that "a safety rule * * * required by statute" does not contemplate a general statute such as Section 320.50, supra, pertaining to excessive speed and reckless driving on the public highways. It is alleged that what is contemplated is not a penal statute designed for the protection of the public generally, but a law specifically designed for the purpose of protecting the employee directly in relation to the scope of his everyday duties in his particular employment, such as certain safety statutes in effect in some states for the protection of workers in mining operations.
A great deal of stress is laid by the appellant on some allegedly significant changes in the wording of Section 440.09(3) supra. Section 9(c), Chapter 17481, Laws of Florida 1935, reads as follows: "No compensation shall be payable if the injury was occasioned primarily by * * * refusal to use a safety appliance or perform a duty required by statute and/or by any rule or regulation of the employer approved by the Industrial Commission and brought prior to the accident to the knowledge of the employee." (Italics supplied.) This Section was amended by Section 9(c), Chapter 18413, Laws of Florida 1937, which is identical with Section 440.09(3), Florida Statutes, 1941, F.S.A., supra. The obvious alteration in the wording of this particular section of the statute is the insertion of the word "wilful" and the superseding of the words "perform a duty required by statute" by the words "observe a safety rule * * * required by statute."
As previously stated, appellant contends that the significance of these changes in our statute is that under the wording "observe a safety rule * * * required by statute" the word "rule" should be limited to statutory provisions which deal exclusively with specific rules designed for the safety of employees while exercising their usual or customary daily duties possibly within the plant or workshop itself. With this contention we are unable to agree. It would border upon absurdity to hold that although an employee must use some degree of care for his own safety while discharging the usual and customary duties devolving upon him in that he may not wilfully fail to use a safety device or observe a safety rule yet be relieved of exercising any care whatsoever for his own safety when he may be designated by his employer to perform some exceptional or extraordinary service requiring him to travel upon the public highways.
The State of Georgia has a statute, Code, § 114-105, very similar to our law as it read in 1935 and the Court of Appeals of that State ruled that the words "duty required by statute" contemplate and include a general statute governing excessive speed on the highways. Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767. We do not feel that the changes in our statute were intended to place on the employer the burden of providing compensation for the employee who wilfully disregards a statute designed both for his own protection and for the protection of the general public. To hold that a general statute regulating the speed and operation of automobiles on the public highways is not a "safety rule * * * required by statute" would open the door to innumerable claims unjustly founded on the proposition that as long as one is careful to observe safety rules while in the course of the regular duties of his employment, he may be as careless as he chooses, indeed be guilty of wilful misconduct, when he may be required to travel on the public highways in the discharge of some special or unusual duty. We cannot be persuaded to give to the statute what we consider to be an unreasonable and injudicious construction.
Deciding as we do that the words "safety rule * * * required by statute" comprehend such a statute as Section 320.50, supra, we must proceed to determine whether the appellant "wilfully" refused to observe the safety rule prescribed by Section 320.50 which reads: "No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the property, or the life or limb of any person; provided, that * * * a rate of speed in excess of forty-five miles per hour on any public highway outside of the corporate limits of any incorporated city or town, of motor driven vehicles weighing less than five thousand pounds, shall be deemed prima facie evidence of reckless driving * * *." Section 320.57 makes the violation of any section of that chapter a misdemeanor.
First, the question of whether the appellant was violating the above statute was one of fact for the Deputy Commissioner to decide and the full Commission to review on the record. The Deputy Commissioner determined as a matter of fact that appellant was violating the aforementioned statute at the time of the accident. The full Commission patently found in the record competent substantial evidence to sustain the finding of fact made by the Deputy Commissioner. The Circuit Court obviously and correctly decided that the full Commission's determination upon review was free from error. Under these circumstances this Court should and does accept such finding of fact.
Second, the question of whether the appellant was "wilfully" failing to observe a safety rule required by statute is likewise to be determined from the facts and circumstances of each particular case. Sloss-Sheffield Steel Iron Co. v. Nations, 236 Ala. 571, 183 So. 871, 119 A.L.R. 1403; Gonier v. The Chase Companies, 97 Conn. 46, 115 A. 677, 19 A.L.R. 83. Here again the "substantial evidence" rule was called into play under similar circumstances and we will not reject the finding of fact made by the Deputy Commissioner, approved after consideration of the "matter upon the record" by the full Commission and affirmed by the Circuit Court.
The mere violation of a statute, ordinance or regulation does not constitute wilful misconduct as a matter of law. Day v. Gold Star Dairy, 307 Mich. 383, 12 N.W.2d 5; Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208; 71 C.J., Workmen's Compensation, Sec. 480, p. 765. Mere negligence and even gross negligence fall short of being wilful misconduct. Aetna Life Ins. Co. v. Carroll, supra; Fortin v. Beaver Coal Co., 217 Mich. 508, 187 N.W. 352, 23 A.L.R. 1153; Ford Motor Co. v. Smith, 283 Ky. 795, 143 S.W.2d 507; 71 C.J., Workmen's Compensation, Sec. 478, p. 761 et seq. Wilful misconduct involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences. Aetna Life Ins. Co. v. Carroll, supra; Gooseby v. Pinson Tire Co., supra; Fortin v. Beaver Coal Co., supra.
The conscious and intentional violation of a penal statute which constitutes wilful misconduct of the employee, is the conscious or intentional doing of an act which violates the statute, though one is not thinking of breaking it. The test of wilful misconduct is not whether one is intending to specifically violate the statute, but whether he consciously intends to do the act which is violative of the statute. To require the employer to show that the employee thought specifically of the statute and then deliberately breached it would almost, if not actually, render the defense of wilful misconduct unavailing. Sloss-Sheffield Steel Iron Co. v. Greer, 216 Ala. 267, 113 So. 271; Aetna Life Ins. Co. v. Carroll, supra.
In Aetna Life Insurance Co. v. Carroll, supra [ 169 Ga. 333, 150 S.E. 211], the claimant was denied compensation for wilfully refusing to "perform a duty required by statute * * * brought prior to the accident to the knowledge of the employee," when he was found to have been killed while driving his automobile in excess of the speed limit at a railroad crossing as prescribed by an applicable statute. The court in determining whether his conduct was "wilful" went on to say, "If conduct ever becomes misconduct, and if misconduct ever becomes willful misconduct, it is when an employee intentionally commits a crime, which results in his injury or death. * * * While generally the mere violation of a statute is negligence, if such statute is a penal statute, and its violation is a crime, the transaction loses its character of negligence, and becomes willful misconduct, within the meaning of our Compensation Act. * * * The master should not be compelled to compensate the employee for his injury, or his dependents for his death, caused by his violation of a criminal statute."
The appellant here was admittedly traveling in his automobile at a speed of 75 to 80 miles per hour for the reason that he was "in a hurry to get home." In light of the above rules we conclude that there was no error in the finding of the Deputy Commissioner, which was affirmed after consideration of the "matter upon the record" both by the full Commission and the Circuit Court, that appellant was wilfully refusing to "observe a safety rule required by statute."
Affirmed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.