Zipperer v. Peninsular Life Insurance Co.

235 So. 2d 473, 1970 Fla. LEXIS 2747
CourtSupreme Court of Florida
DecidedMay 20, 1970
DocketNo. 39079
StatusPublished
Cited by4 cases

This text of 235 So. 2d 473 (Zipperer v. Peninsular Life Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zipperer v. Peninsular Life Insurance Co., 235 So. 2d 473, 1970 Fla. LEXIS 2747 (Fla. 1970).

Opinion

DREW, Justice.

James Zipperer and Henry Bennett were insurance agents employed by Peninsular Life Insurance Company. They customarily worked as a team. One witness testified that the most common practice of such salesmen in that area was working in the evenings after the dinner hour.

On September 30, 1965, Zipperer visited a customer at the Porthole, a bar and grill located in Ormond Beach west of the truck route bypassing Ormond Beach, Holly Hill and Daytona Beach. The customer was not there but Zipperer made arrangements with the owners to see him the next night, October 1, some time after 8:00 p. m.

On the following evening Zipperer picked up Bennett in his car to visit the customer at the Porthole and other clients of the two salesmen.1 After leaving the Bennett home they visited a customer at J. M. Fields Department Store, leaving there between 8:30 and 9:00 p. m. with the agreement that they would return either later that evening or the next day. Prior to leaving the client at Fields they told [474]*474him that they had more' customers to see in Bunnell (a town a little more than twenty miles north), and that therefore they would probably not see him again until the next day. About thirty minutes later the two salesmen arrived at the Porthole to discuss with the proprietor a sale of group and hospital insurance but, after some time, were told to come back the following morning for a further discussion. They left the bar between 9:30 and 10:00 p. m. There is no evidence as to exactly where the agents were headed but there is evidence in the record that they had a client they desired to visit by the name of Vaness a few miles north of the Porthole. In any event, the next time the car in which they were travelling was observed was about 10:45 p. m. headed south on U.S. #1 near the intersection of the truck route with said highway. U.S. #1 is a divided highway leading to Bunnell about sixteen miles north. There are no towns or built-up area between the intersection and Bunnell. There was testimony that the car was going at a high rate of speed when it passed the eyewitness, and that the road was wet from a recent rain. One mile south of the intersection the car skidded and overturned killing both salesmen and a sailor. The accident occurred at 10:45 p. m.

There can be no doubt that the salesmen were in the course of their employment when they were last seen at the Porthole bar. The decision here turns upon the question of whether the legal effect of the evidence requires the conclusion that sometime between the time they left the Porthole and the time of the accident they departed from their employment and were pursuing a purely personal mission unrelated thereto.

The Judge of Industrial Claims denied compensation, apparently on the theory that because there was no evidence establishing that the activities of the salesmen after they left the Porthole bar were in the course of their employment, he was therefore compelled to deny compensation. The concluding paragraphs of his Order with respect to this matter are as follows:

“The undersigned further finds that at about 10:45 P.M. on the same evening, the decedents were involved in an accident while traveling at an excessive rate of speed as they traveled south on U.S. 1; that the activities of the decedents from the time they left the Porthold [sic] until the time of the accident are unknown; that there are cut offs from U.S. 1 shortly south of the scene of the accident where, by turning west, the decedents could have returned by a direct route to the Porthole or, by turning east, they could have proceeded by a direct route to the home of Mr. Bennett.
“The accident occurred at about 10:45 P.M., as set forth above, an unusually late hour for a business call unless prearranged and there was no evidence of any such arrangements. The decedents were on U.S. 1 traveling at a high rate of speed with a sailor whose destination was unknown, as was the decedent’s. The undersigned finds that the speed which the decedents were traveling was in excess of 65 miles per hour, thus violating a safety rule which resulted in their deaths.
“Therefore, the undersigned is compelled to find that the decedents, James F. Zipperer and Henry Bennett, did not meet their deaths as the result of an accident arising out of and in the course and scope of their employment with the Peninsular Life Insurance Company on October 1, 1965. To find that they were en route to see some other client would be to indulge in conjectural speculation which is supported only by inferences.” [R — pp. 85-86]

The Full Commission affirmed the Order of the Deputy, one member dissenting.

We quote with approval the dissenting opinion of Commissioner Lightsey:

“I am constrained to dissent for the reason that I do not believe the judge of [475]*475industrial claims has properly applied the law to the circumstances of this case. To my mind this cause is governed by the basic ‘dual-purpose rule’ which was clearly and succinctly enunciated by Judge Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), wherein the judge stated, in part:
‘ * * * If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk (emphasis supplied).’
“It is clear to me that the deceased employees started out upon their insurance rounds and to do so they had to travel. Therefore, the work of the employees during the night of October 1, 1965, is governed by the above quoted rule. I find nothing in the record that leads me to believe that the deceased employees had deviated from their employment. It is common knowledge that most insurance men make their rounds at night when they can talk to both husband and wife regarding insurance problems. Such activity is certainly to the benefit of the employer. To my mind when they left home and started out on their evening rounds they were doing the employer’s business and continued doing it until they returned home. The mere fact that they had picked up a hitchhiker did not operate so as to deny them workmen’s compensation benefits. The burden is on the employer to prove that the employee has deviated from his employment. This the employer and carrier failed to do. See Hinton v. Sandstron, Decision No. 2-1595, dated May 18, 1966.
“In Section 18, Volume I of Larson’s Workmen’s Compensation Law the rule as to dual-purpose trips is stated as follows :
‘§ 18.00 Injury during a trip which serves both a business and personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.’

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Bluebook (online)
235 So. 2d 473, 1970 Fla. LEXIS 2747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zipperer-v-peninsular-life-insurance-co-fla-1970.