Opinion
May 26, 1950.
Appeal from the Circuit Court for Hernando County, F.R. Hocker, J.
Shackleford, Farrior, Shannon Stallings, Tampa, for appellant.
Joseph E. Johnston, Jr., Brooksville, for appellee.
Plaintiff-appellee filed suit in the court below to recover for personal injuries alleged to have been sustained by reason of the negligence of defendant-appellant's employee. The cause went to trial on the issues of not guilty and the contributory negligence of the plaintiff, and on the further issue made by defendant's plea that "at the time alleged in said declaration the plaintiff was an employee of said defendant, which said defendant was required by the law of Florida to maintain workmen's compensation coverage and was in all respects under the coverage of said statute, and that the injuries complained of arose out of the employee's course of employment with said defendant." It was shown during the trial that plaintiff had been offered and had refused to accept workmen's compensation in the amount of $22 per week. The jury found for the plaintiff, assessing his damages at $500, final judgment was entered, and appeal has been perfected from such final judgment.
The sole question argued on this appeal is whether or not the plaintiff was the employee of the defendant within the meaning of the Workmen's Compensation Act, F.S.A. § 440.01 et seq., the defendant contending that the evidence showed, as a matter of law, that the plaintiff was so employed by him.
The question whether an injured workman occupies the status of employee, so as to bring him within the coverage of the statute, is ordinarily one of fact. It is only where the facts are conceded or undisputed, and there is no dispute as to the inferences to be drawn therefrom, that their legal significance is a matter of law to be determined by the court.
The facts, as shown by the evidence, are in substance as follows: The plaintiff, a carpenter, was employed by one Fred Lewis as a helper on a job of constructing a small bathroom for defendant at defendant's summer camp. Lewis told the defendant he was hiring plaintiff as his helper, and defendant said it was "all right." The defendant testified that the camp was maintained in connection with his garage business, for entertainment purposes, and that he carried workmen's compensation insurance covering the employees in his business. The plaintiff and Lewis were paid on an hourly basis, but had no regular hours of work nor any set time for completing the job. As stated by defendant, "Sometimes they would go down there early in the morning and go fishing and work a few days and maybe go down the next day and work two or three hours." The plaintiff had worked a total of four and one-half days at the time of his injury — three and one-half days during his first week of work for which he was paid by Lewis "out of his own pocket," and one day during his second week, which was the day before he was injured. The wages for this last day were collected by plaintiff's wife from the defendant.
The evidence as to the control over the work by the defendant was meager. The plaintiff and the defendant did not testify as to this, and Lewis testified only that he was hired by Rogers (the defendant) to do the job, that the defendant told him "what he wanted" and that "he left a good bit up to us."
It is our opinion that the inferences deducible from the evidence were such that it cannot be said that the plaintiff, as a matter of law, was the employee of the defendant.
No error having been shown, the judgment of the court below should be and it is hereby
Affirmed.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.