It is suggested on petition for rehearing that this Court failed and omitted to consider certain facts appearing in the transcript and the legal authorities cited in the appellant's briefs. The agreement made with deceased, Walter Forehand, in the State of Georgia by John P. Duane, Superintendent of the Manly Construction Company, did not bind the construction company to return Walter Forehand to the State of Georgia, it is contended, but it was optional with the construction company whether or not Forehand would be returned to the State of Georgia or would be retained a reasonable time prior to deciding whether or not the Manly Construction Company would retain Walter Forehand or would give him permanent employment in the State of Florida. That the Manly Construction Company exercised its option within the State of Florida to return Walter Forehand to the State of Georgia and when the construction company exercised its said option not to give Walter Forehand permanent employment in the State of Florida, but to return him to Georgia, then a mutual and binding agreement was established between the construction company and Walter Forehand within the State of Florida which was to be performed by transporting Walter Forehand from Leesburg, Florida, to his home in the State of Georgia *Page 297 and that he was killed in Georgia when the Florida agreement was being executed, and for this reason the award should be reversed.
We have for the second time carefully considered and examined the several authorities cited to sustain this view appearing on page 21, 22 and 23 of the brief filed March 31, 1941.
The answer to this contention is two fold: (1) the cited authorities cannot be followed by this Court when Section 3 of Chapter 18412, Acts of 1937, specifically provides that compensation shall be due and payable under the provisions thereof: if the contract of employment was made within the State of Florida; (b) if the employer's place of business is within the State of Florida; (c) or if the residence of the employee is within the State of Florida; (d) if when an accident happens while the employee is elsewhere than within the State of Florida . . . the Florida statute controls rather than the several authorities cited; (2) we are unwilling to follow and place upon the testimony as to the agreement of the parties the construction and interpretation as contended for by counsel for appellants. Mr. Duane employed Walter Forehand to drive a truck loaded with machinery from Pinehurst, Georgia, to Leesburg, Florida, and was to pay him the sum of $3.00 per day, plus the cost of meals and lodging from Pinehurst to Leesburg, and agreed if certain building materials had reached Leesburg that further employment would be supplied, but if the materials had not arrived he would be returned to his home in the State of Georgia. The materials had not arrived and Walter Forehand was being transported home and was killed a few miles from Mystic, Georgia, his home. If the materials had arrived, other *Page 298 employment was to have been supplied, otherwise no further employment.
It is next contended by counsel for appellants that this Court overlooked and failed to consider that it was the legal duty and obligation of the construction company to return Walter Forehand over the most direct and practicable route from Leesburg, Florida, to Mystic, Georgia, his said home; that transportation should be by bus or common carrier, but that the method selected by the construction company being by private truck, under the circumstances created and established a new agreement entered into between the parties within the State of Florida and for this reason the Florida Industrial Commission under the statutes of Florida had jurisdiction and could make an award to the widow, although Walter Forehand was killed in the State of Georgia while enroute to his home from Leesburg, Florida.
The agreement made in Georgia for Walter Forehand to drive the loaded truck to Leesburg failed to stipulate the manner of transportation on the return trip to his home. We are unable to read into the agreement that the return trip was to be made by the most direct and practicable route by bus or other common carrier, but the parties on arriving at Leesburg learned that the materials had not arrived and knew that future employment was not available. When these facts became known the construction company took the employees from Leesburg to Ocala where they spent the night, and next day they accepted transportation in a private truck supplied by the superintnedent to their home in Georgia. The agreement was to return them to Georgia if the future employment was not available. *Page 299
We are unable to find in the testimony the contention of counsel for appellant that the contract was entered into between the parties in the State of Florida, but it clearly sustains the holding that the agreement was entered into between the parties in the State of Georgia, whereby they were to receive $3.00 per day and meals and lodging while driving the trucks from Georgia, to Leesburg, Florida, and be returned to their homes in Georgia by the construction company. It was agreed further that Walter Forehand was to be given employment at Leesburg provided certain named materials or equipment had arrived and Forehand, anticipating the possible employment, took with him some extra clothing. We cannot find in the record any testimony to sustain a holding that the contract of employment was made or entered into within the State of Florida and that the Industrial Commission of Florida has jurisdiction of the controversy. The testimony is that the contract was made by the parties in the State of Georgia and that Walter Forehand was killed in the State of Georgia.
The petition for rehearing is denied.
BROWN, C. J., WHITFIELD and BUFORD, J. J., concur.