Bowen v. Keen , 154 Fla. 161 ( 1944 )

On petition for rehearing, it is contended that the terms of employment of J.W. Bowen by appellee, and his duties thereunder were proven, if at all, by mere heresay testimony. The record shows that Cecil Bowen, brother of the deceased, testified that he was present when his brother was employed by Mr. Ott, the then general manager of the business of the appellee, Pendleton Grain Provision Company; that Mr. Ott offered the position to him, which he declined, as he already had a similar position with another concern, and that his brother, who accompanied him, was then, in the presence of witness, offered the same job, and accepted it; that he heard Mr. Ott specify in full what his brother's duties in such position would be, which were to act as a clerk, drive a truck, deliver feed, sell chicks from the hatchery, take orders for feed and operate the chicken hatchery whenever directed to do so; that the work in reference to the hatchery which was kept in continuous operation, required keeping the incubators heated at a certain temperature and was a 24 hour job; that when his brother was called on to run the hatchery his hours of work were unlimited and he was subject to call for such work at any time; that when he was not working on the hatchery, he usually went to work about 8 A.M.; that sometimes he had to work very late at night, and sometimes had to go to work very early in the mornings. This was not hearsay testimony. It was based on what the manager said when he employed his brother and what he knew of his own knowledge. He also testified that on the morning he was killed his brother left home about 7 A.M.

He also testified that when his brother came home the night before he heard him tell his mother that he wanted her to get him off early the next morning, as he was to make two trips to Thomasville, Georgia, and that when he left the next morning he was on his way to Thomasville, though he had to go by the store to get the truck.

Mrs. Bowen, the mother of the deceased, testified without objection that on Monday night her son worked at the hatchery, and that when he came home on Tuesday night, being the night before he was killed, he told her to get him off early the next morning, as he had been told to get up early and make two trips to Thomasville, and that she did get him off the next morning before 7 o'clock. This was February 25, 1942, and we can take judicial notice that on that date 7 o'clock, E. S. time, in Tallahassee, is nearly an hour before daybreak.

While no objection was made to the above testimony by Mrs. Bowen, we think it was admissible. The rule is quite generally recognized that the statements of a deceased person as to the purpose and destination of a trip or journey he is about to make are admissible. Many courts hold that such statements are a part of the res gestae. See 3 Jones on Evidence, Section 1120. This question is thoroughly treated in an annotation in 113 A.L.R. 268, et seq., and beginning on page 300 of the same annotation a number of cases are cited wherein such testimony was held admissible in actions brought under workmen's compensation or employers' liability statutes.

The general subject is very well treated in 31 C.J.S., page 988-9, sections 239-240, and 32 C.J.S., pages 19 to 54, sections 403-421, but section 412, page 35, 32 C.J.S. is quite apt here. It says that "a declaration of fact which, although antecedent in point of time, is preliminary or immediately preparatory to the main fact may be received where it tends to illustrate or give character to the act in question." See also 22 C.J., 260. Of course, in order for a statement of this nature to be admissible as a part of the res gestae it must be a spontaneous utterance of the mind while under the influence of the transaction or event. 32 C.J.S., 45. In 20 Am. Jur., 578, it is said: "Statements by a person since deceased as to the purpose or destination of a trip he is about to make may be proved in many instances as part of the res gestae, when properly connected with the act of departure."

Tested by the applicable principles of law, the testimony of the mother and brother of the deceased, above referred to, was admissible.

Now, as the rule which exempts an employer from liability under workmen's compensation acts when the employee is going to and from his regular work. Our view is that this rule applies in general to employees who have fairly regular or fixed hours of work; where they usually go to work at a certain time and quit at a certain time; or where they have at least fairly regular hours of work. Outside of those hours, they are complete masters of their time. But, as stated in our original opinion, the evidence in this case does not show that this young man had any fixed or regular hours of work, either as to the time he should be at the store or warehouse in the mornings or when he should leave in the afternoon or evenings. He frequently had to work very late at night without any extra pay, and when he was running the hatchery he had to stay at the warehouse night and day. Appellee's counsel very fairly stated in their brief that:

"He was a truck-driver and general assistant in the warehouse and in field work. The whole period of time was not required for his duties and did not cover all twenty-four hours a day every day in the week; it covered only the hours in the day that were devoted to the activities in which he was engaged."

In the petition for rehearing, some complaint is made because in our original opinion we said that appellees could have contradicted the alleged hearsay testimony of Cecil Bowen as to the terms of employment by calling the employer or manager to the stand, but that this was not done. Counsel say, and we do not doubt them in the slightest degree, that the owner of the business knew nothing about any such agreement and that the then manager had left his employe and his whereabouts were unknown. So the statement in our opinion which is now objected to, while based on a natural inference, is withdrawn.

The petition for rehearing also calls our attention to section 90.05, F.S. 1941, but we do not think that statute is applicable in this case.

Taking the admissible testimony as a whole, we reach the same conclusion arrived at in our original opinion to the effect that the deceased had no fixed or regular hours of work and was really subject to call; that while he usually went to his work about 8 A.M., he was, at the time he was killed, carrying out the orders of his employer, in furtherance of a mission in his employer's interest, which orders required him to leave his home at a much earlier hour than usual, and that when he was accidentally run over and killed he was actually engaged in his employer's business. Therefore, the accident which caused young Bowen's death "arose out of and in the course of his employment."

Petition for rehearing denied.

BUFORD, C.J., CHAPMAN and ADAMS, JJ., concur.

TERRELL, THOMAS and SEBRING, JJ., dissent.