Opinion
No. 8310IC812
Filed 4 September 1984
Master and Servant 55.4 — workers' compensation — personal and business use of employee's airplane — accident while maintaining airplane An employee who owned an airplane which he maintained and kept for his personal use as well as for use when traveling for his employer was not injured by accident arising out of and in the course of his employment while he was returning from Georgia after having flown the airplane there to have new numbers painted on it even though the employer reimbursed the employee for part of the expense of maintaining the aircraft and paid for the gasoline used on the trip. Nor did the death of a second employee who had gone to Georgia to bring the first employee back to this State arise out of and in the course of his employment although he made the trip at the direction of his superior in the employer's company.
APPEAL by defendants from order of North Carolina Industrial Commission entered 13 April 1983. Heard in the Court of Appeals 3 May 1984.
Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by W. F. Maready, Robert J. Lawing, and Michael L. Robinson, for plaintiff appellee Warren N. Pollock.
Lloyd C. Caudle and Richard S. Guy for plaintiff appellee Barbara S. Beckwith, individually and as Guardian Ad Litem.
Hedrick, Feerick, Eatman, Gardner and Kincheloe, by Philip R. Hedrick and Martha W. Surles, for defendant appellants.
Judge WHICHARD dissenting.
This appeal involves the question of whether an injury and a death are compensable under the Workers' Compensation Act. The evidence upon which the Hearing Commissioner made his decision showed that on 9 March 1982, Warren N. Pollock was a first vice-president of Reeves Brothers, Inc. and president of its Curon Division. Peter O. Beckwith was vice-president of the company. Pollock was a pilot and owned a single-engine aircraft which he used for his own purposes and for business purposes for Reeves. Pollock maintained the plane and Reeves paid him $2,500 per year plus payments for gasoline for his use of it while traveling for Reeves. Sometime prior to March 1982 Pollock purchased a twin-engine aircraft. He intended to sell his single engine aircraft and use the twin-engine plane.
Approximately two weeks before 9 March 1982 the Federal Aviation Authority assigned new numbers to the twin-engine aircraft. Pollock decided to fly the twin-engine plane to Commerce, Georgia on 9 March 1982 to have the new numbers put on the aircraft. He asked Beckwith to fly the single-engine plane to Georgia on that date with the intention that the two men would return home in it while the numbers were being put on the twin-engine plane. The gasoline used for the flight was charged to Reeves. While the two men were returning from Georgia the single-engine plane crashed. Pollock was injured and Beckwith was killed.
The Hearing Commissioner found facts based on the above evidence. He also found what he denominated a fact that neither Pollock nor Beckwith had any business of Reeves to conduct on the trip and that neither was engaged in any function which was calculated to further either directly or indirectly Reeves' business. He found they were on a business trip connected with the maintenance of the twin-engine aircraft. He concluded that neither man sustained an injury arising out of and in the course of employment and denied compensation
The plaintiffs appealed to the Full Commission which stated "We are of the opinion that the employees on the occasion complained of were engaged in an activity which they were authorized to undertake and which was calculated to indirectly benefit the employer." It substituted what it called findings of fact that neither Pollock nor Beckwith had any personal business to transact in Georgia and they were engaged in the discharge of a function which was calculated to further indirectly the business of Reeves. It concluded the two men were in accidents that arose out of and in the course of their employment. The Full Commission reversed the Hearing Commissioner and awarded compensation in both cases. The defendants appealed.
The facts in this case are not in dispute. The question is whether Pollock or Beckwith's heirs are entitled to workers' compensation for injuries and death in an accident that occurred while they were returning from a trip to have numbers put on an airplane which was owned by Pollock, and which he used while traveling on business for Reeves. The Hearing Commissioner's finding that neither man was engaged in any function which was calculated to further Reeves' business and the Full Commission's finding that they were so engaged were conclusions based on the undisputed facts. We hold that the Hearing Commissioner was correct in his conclusion and reverse the Full Commission.
We have not, found a case which governs this case but we do not believe we should hold that when a person owns an airplane which he maintains and keeps for his personal use as well as for use when traveling for his employer, he is protected by workers' compensation while he is doing something to maintain the airplane and not doing anything else to promote the employer's business. We believe this is so although the employer reimburses him for a part of the expense of maintaining the aircraft and pays for the gasoline used on the trip. We do not, believe that the Workers' Compensation Act was intended to cover accidents which occur while an employee is repairing his own property which he uses for himself and for his employer.
We receive some help from Hoffman v. Truck Lines, Inc., 306 N.C. 502, 293 S.E.2d 807 (1982). In that case, the plaintiff leased his tractor-trailer to the defendant-employer. He was injured while repairing the tractor at a time when it was stopped while on a trip for the employer. Our Supreme Court said the plaintiff wore two hats, one as lessor and one as employee. Because the injury occurred while he was performing a duty as an employee, the accident was compensable. We believe an inference from this case is that if the accident had occurred while the plaintiff was not on a trip or using the truck for the employer, the accident would not have been compensable. This would be so although the repair of the truck would have been of some benefit to the employer.
We believe that for an activity of an employee to be held to be of some benefit to the employer so that an accident while engaged in that activity is compensable, it must be an activity as an employee. An accident during the repair of a truck as a lessor and not as a lessee would not have been compensable in Hoffman. In this case, although it may have been of some benefit to Reeves to have the correct numbers on the aircraft, we do not believe Pollock was acting as an employee in having the numbers put on the aircraft. It was his aircraft and he was doing what was necessary to maintain it for flight. This would not be a benefit to Reeves for workers' compensation purposes.
If Pollock was not promoting his employer's business, then neither was Beckwith. Although Beckwith may have made the trip at the direction of his superior at Reeves, this would not make the trip compensable because it was no more for the benefit of Reeves than was the trip by Pollock. Burnett v. Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939) and Hales v. Construction Co., 5 N.C. App. 564, 169 S.E.2d 24 (1969).
We reverse and remand for an order denying both claims.
Reversed and remanded.
Judge HILL concurs.
Judge WHICHARD dissents.