NATIONAL SURETY CORP.
v.
WINDHAM ET AL. (TWO CASES)
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
National Surety Corp. appeals two judgments against it on an automobile liability policy issued to a drunk contractor who hired a 16-year-old boy named Windham to drive him to a sanitarium. The Florida Supreme Court held that Windham was an independent contractor rather than an employee, and therefore was not excluded from coverage under the policy's employee exclusion clause.
Windham was an independent contractor, not an employee, and therefore covered under the policy. The court held that the right to control—not actual control—is determinative, and the contract contained no terms establishing control over Windham. The court additionally held that even if the relationship constituted master and servant, only regular employees (not casual or incidental employees) fall within the policy's exclusion clause.
“It is the right of control, not actual control or actual interference with the work, which is significant in distinguishing between an independent contractor and a servant”
Establishes the legal standard for determining employee status versus independent contractor status.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA contractor, while drunk in Live Oak, agreed to pay 16-year-old Lawrence Windham $25 and provide return bus fare to drive him to a sanitarium in Seal…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Exclusion Clause Interpretation cases and more on FLexlaw
MILLEDGE, Justice.
A building contractor, finding himself drunk in Live Oak and desiring to get to a sanitorium in Sealy Springs, Alabama, in order to obtain an alcoholic cure, agreed to pay a 16 year old boy named Windham $25 and his return bus fare to transport the contractor in his own car to the sani-torium. The boy’s father consenting, the trip started. On the way the contractor, who had been asleep in the back seat, awoke and in a drunken attempt to climb over the seat and seize the steering wheel, caused the car to collide with a truck, hurting Windham.
Two judgments were obtained against National Surety Corporation, one in Su-wannee County and one in Jackson County, on the proposition that Lawrence Wind- ljam, a minor, came within' the scope of an automobile liability policy issued by the appellant to the contractor. The part of this policy pertinent to this case, reads as follows:
“This policy does not apply: * * * (d) under coverages A & C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law * * * ”,
The appellant contends that Windham was an employee of the insured (not domestic) and, therefore, not within the terms of the policy. This contention seems to be based on these facts: The contractor told Windham to drive fast; once on the trip he told Windham to stop; he paid the boy some .money and furnished a return bus ticket; and that Windham understood that he was subject to the contractor’s orders.
We think that Windham was an independent contractor, rather than an employee. It is the right of control, not actual control or actual interference with the work, which is significant in distinguishing between an independent contractor and a servant, as the appellant has pointed out. 27 Am.Jur. 486.
The statement of Windham, a boy of 16 when the accident happened, that he “understood” that he was subject to the contractor’s orders, has no significance. The latter’s right to control depends upon the terms of the contract of employment of transportation. This contained nothing about control. The contractor cannot remember his conversation with Windham about the transaction other than that he was to pay $25 and the bus ticket “to deliver me to Sealy Springs”. His condition, which was the necessity for the trip, shows that he was incapable of directing the manner of the driving and to “control” the operation. If he had been so capable he didn’t need Windham at all. In fact, he wouldn’t have had any reason to go to Sealy Springs. The contractor was merely human cargo, incapable of rational direction, but capable of causing trouble, as drunk persons frequently are. Before the accident, the contractor, in order to relieve himself, asked Windham to stop the car. Small children, on a journey, do the same. The manner in which the accident was caused, is the very antithesis of control. It is significant that the purpose of the trip had nothing to do with the contractor’s business.
Even if the relationship here, is considered that of master and servant, we think that the judgments are correct. The contract of insurance should be construed most favorably to the insured. Only regular employees as distinguished from casual or incidental employees, are within the exclusion clause of the insurance contract. Daub v. Maryland Casualty Company, Mo.App., 148 S.W. 2d 58.
While there were no conflicts in the evidence, there were several inferences which could be drawn from the facts. It was the duty of the judge in each case to do this. It is unnecessary to cite authority for the proposition concerning the weight to be given, on appeal, to the finding of fact by the trial judge. Both judgments, the one decided by Judge Welch in Jackson County, and the one decided by Judge Rowe in Suwannee County, are correct.
Affirmed.
ROBERTS, C. J., and HOBSON and DREW, JJ., concur. TERRELL, THOMAS and MATHEWS, JJ., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Cantor v. Robert Cochran & the Fla. Indus. Comm'n, 184 So. 2d 173 (Fla. 1966)…es. The Supreme Court, however, held them to be employees. “(h) Whether or not the work is a part of the regular business of the employer.” It is obvious that it was. For the relevance of this point, see National Surety Corp. v. Windham, Fla.1954, 74 So. 2d 549, where one of the decisive factors in determining that the relationship was that of independent contractor was that the services to be performed were outside the sphere of the alleged employer’s regular business, “(i) Whether or not the parties bel…
-
Nat'l Auto. Ins. Ass'n v. Brumit, 98 So. 2d 330 (Fla. 1957)…ow is clearly within the language of the insurance contract. This being so and that construction being the one most favorable to the insured, we find that the conclusion of the Chancellor must be approved. National Surety Corp. v. Windham, Fla.1954, 74 So. 2d 549; New York Life Insurance Co. v. Kincaid, 136 Fla. 120, 186 So. 675. This rule has been announced so many times that additional supporting citations would be superfluous. Before concluding we wish to state that we have not considered and do not here…
-
Griffin v. Speidel, 179 So. 2d 569 (Fla. 1965)…a Griffin, contends that the decision of the District Court of Appeal, Second District, reported as Griffin v. Speidel, Fla.App.1964, 167 So. 2d 882, is in conflict with the decision of this court in National Surety Corporation v. Windham, Fla.1954, 74 So. 2d 549. We find conflict between these decisions. Although, the principal conflict arises out of obiter dictum in the latter case, such is, nevertheless, adequate to invoke this court’s certiorari jurisdiction. Sunad, Inc. v. City of Sarasota, Fla.1960, 12…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence