Studdard v. Phoenix Indemnity Co. , 79 Ga. App. 467 ( 1949 )

The judge of the superior court erred in affirming the award denying compensation.

DECIDED JUNE 1, 1949. REHEARING DENIED JUNE 22, 1949. Mrs. Wesley R. Studdard, widow, and Gregory Studdard, minor son of deceased, filed a claim for compensation with the State Board of Workmen's Compensation against Southern Airways Incorporated, and Phoenix Indemnity Company, insurance carrier, for the death of her husband, Wesley R. Studdard, resulting from injuries received from an airplane crash while allegedly in the employ of Southern Airways Incorporated. Dependency, accident and injury resulting in decedent's death were admitted by counsel for defendants, but it was denied that the deceased was an employee of defendant at the time of the accident and that the injury arose out of and in the course of the employment. The undisputed evidence adduced on the hearing before a single director was as follows: that on the day of the accident the deceased was employed by the defendant as a flight instructor, his name appearing on the payroll of defendant company as such; that he received as his only compensation $4 per hour for dual flight instruction of students; that among his other duties were ground instruction, storage of defendant's planes, and acting as charter pilot to accompany defendant's planes on cross-country charter flights; that the deceased was subject to call 24 hours a day; that on August 27, 1948, John R. Banks, a student enrolled in defendant's commercial pilot training course, rented or chartered a four-place Beachcraft Bonanza plane owned by defendant airways from J. F. Potts, defendant's general manager, at the rate of $15 per hour to fly to Dallas, Texas and pick up the wife of John R. Banks and return to Atlanta; that in the arrangement for the rental of said plane between Banks and defendant's manager, it was required by the defendant that one of the pilots of the defendant company accompany this plane on the trip to Dallas since this particular type of plane was never rented to a customer without one of defendant's pilots accompanying same because of its horsepower, speed, and flying characteristics; that on this trip it was expressly understood between the manager Potts and the deceased that he would receive no pay or expense money for making this trip; that defendant's agents did not direct deceased to make this flight but that one of defendant's pilots or instructors would have had to go along as required by the defendant's policy when this type of plane was chartered; that if the deceased instructor or any other of defendant's pilots refused to go on a large number of charter flights his services would no longer be retained; that defendant's agent placed the deceased in charge of the plane during this trip; and that on said flight both Banks and the instructor were killed in an airplane crash near Emory, Texas.

Approximately three weeks after the accident, Henry S. Knight, insurance adjuster for defendant insurance carrier, obtained sworn written statements from Potts, general manager of defendant airways, and Hornsby, chief pilot. Potts' statement was substantially: that the deceased was an employee and instructor of defendant; that the flight in question was a charter flight and had no connection with the defendant's training program; that the deceased was to receive no pay for making this flight; that he did not direct the deceased to make this flight. Hornsby's statement was to the effect: that deceased was an instructor of defendant company; that the flight in question was strictly extra-curricular and was in no way connected with Banks' course of instruction; that he did not direct deceased to make the trip; that charter trips, such as this one, were a part of the regular business of the defendant and that an instructor is required to go along when this type of plane is chartered.

On the hearing of the case Potts testified: that the deceased was an instructor and charter pilot; that an instructor was required to accompany this type of plane on a charter flight; that the deceased was placed in charge and had control over the plane on this trip; and that this flight was a training flight as well as a charter flight. Hornsby testified that the deceased was an instructor and was also used as a charter pilot; that one of the instructors had to make this trip; that the deceased and Banks were to receive credit for solo time on this trip in connection with the training program; that Mr. Potts approved the flight and that the deceased was under Potts' supervision in making this trip; and that he (Hornsby) had no control over the deceased after the plane left the airport in Atlanta.

The single director found in favor of the claimant and granted compensation. This award was set aside by a two-to-one decision of the board and claimant appealed to the Superior Court of Fulton County. That court affirmed the finding of the board, denying compensation, and the claimant excepted. There are two questions presented for adjudication: (1) Was the deceased an employee of the defendant within the meaning of the Workmen's Compensation Act at the time he met his death? (2) Did deceased's death occur as the result of an injury arising out of and in the course of his employment?

The defendant contends that the board was authorized to disregard the testimony of the witnesses, Potts and Hornsby, and accept their written statements as true because of the contradiction by the witnesses on the hearing as to the nature of the flight, whether it was for training purposes in addition to being a charter flight, as they testified on the hearing, or strictly a charter trip having no connection with the defendant's training program, as was shown by their written statements. Conceding for the sake of argument that the board was authorized to disregard the testimony of the two witnesses and believe their sworn statements, we, still, are of the opinion that the remaining undisputed evidence demanded, a finding for compensation. Defendant argues that from the evidence the board was authorized to find that the deceased occupied a status of a volunteer or special employee of the student Banks on this trips and that at the time of his death he was not in the employ of the defendant, and, therefore, the injury could not have arisen out of and in the course of his employment. The defendant bases this argument on the evidence adduced from the sworn statements of the two witnesses, Potts and Hornsby, to the effect: (1) that this was a charter trip and had no connection with flight training, (2) that the deceased was not directed by his employer to make this trip, (3) that the defendant's agent expressly informed the deceased he would receive no compensation from the defendant for making this trip.

As to the first contention, we are of the opinion, under the facts of this case, that it is immaterial whether or not this charter flight was made in connection with the training program. Hornsby's sworn statement was to the effect: "The charter trips are part of the regular business of Southern Airways Incorporated, and it is always a part of the charter contract to have one of our instructors in each Bonanza [plane] that goes out on a chartered flight." Therefore, one of the deceased's regular duties in addition to flight instruction was to make charter trips, and the fact that this trip had no connection with flight training would not remove the deceased from the status of an employee engaged in his regular duties to one of volunteer or special employee of the student Banks.

Defendant's second contention that defendant's agents did not direct the deceased to make the trip, and that, therefore, it could be inferred that the deceased acted as a volunteer or special employee of Banks and not as an employee of the defendant, likewise, is untenable. One of the necessary incidents to the relationship of employer-employee is the right of control or direction over the employee. If the right of control be conclusively shown to exist, then evidence to show the actual exercise of control or the absence of it, becomes wholly immaterial. It is the right of control, and not the fact of control, which is decisive. Bentley v. Jones, 48 Ga. App. 587, (173 S.E.2d 737); Pennsylvania R. Co. v. Barlion, 172 Fed. 2d, 710; Liberty Mutual Insurance Co. v. Boggs (Tex.Civ.App.), 66 S.W.2d 787. The fact that the defendant's agents did not expressly direct the deceased to make the flight does not raise an inference that the deceased volunteered to go solely for his own personal benefit or as special employee of Banks, especially in view of the fact that the undisputed evidence showed that at the time of the accident a contract of employment existed between the deceased and defendant; that the deceased was subject to call 24 hours a day; that this charter flight was a regular part of defendant's business and the policy of the defendant company required an instructor to accompany this type of plane on a charter flight. We are of the opinion that the evidence conclusively showed that the defendant had the right to direct the deceased to make this flight and whether it did in fact is not controlling. Furthermore, the undisputed testimony of the unimpeached witness, I. Q. Ball, present Vice-President and General Manager of defendant was: "Now, to go or not to go on a flight is not ever mandatory; we never demand that a pilot go on a flight; he can turn down any flight he so desires, but obviously if we have a pilot that refuses to go on a large number of flight or a large percent of flights when asked to go on, we simply get some other pilot to work for us." This testimony further strengthens the existence of the right of control and direction by defendant over the deceased. Defendant also contends that the testimony of the chief pilot Hornsby to the effect that he had no control over the plane after it left the airport is sufficient to show that the element of control which is essential to employer-employee relationship is lacking. This contention is likewise without merit. This testimony was a conclusion, not based on the facts disclosed by the record. This testimony of Hornsby was explained by his subsequent testimony: "After they left the filed the only way I could stop it would be by notifying C A radio on to have them return but if they were sitting up there and didn't have it turned on that particular station at the time, there is no way I could have them return." This testimony discloses the physical impossibility under the circumstances of enforcing control, but in no way does it negative the existence of the right of control.

Defendant's third contention that the deceased was expressly informed that he would receive no compensation from the defendant for this trip did not authorize a finding that the deceased was a volunteer or special employee of Banks. The evidence showed that the deceased had other duties in addition to flight instruction, such as storage of planes and ground instruction, for which he received no direct remuneration; that charter flights were a regular part of defendant's business; that the duties of defendant's instructors, in addition to flight instruction, consisted of accompanying such flights; that if the deceased had not made the flight some other pilot of defendant would have had to go; that the defendant was to receive $15 an hour for the rental of this plane. The evidence demanded a finding that the deceased was not a volunteer or special employee of Banks; that he made this flight in the interest of the defendant's business. Even if the deceased had entered into an agreement with Banks whereby Banks was to pay him for this trip, this would not sever the employer-employee relationship between the deceased and defendant. "Notwithstanding the mere fact that the mission may have two objectives, service as intended by the contract of employment, and also some personal objective of the employee, an injury sustained by an employee under such circumstances is an injury arising out of and in the course of the employment and is compensable." Travelers Insurance Co. v. Bailey, 76 Ga. App. 698 (47 S.E.2d 103). See also Hartford Accident Indemnity Corp. v. Welker, 75, Ga. App. 594 (44 S.E.2d 160).

We, therefore, conclude that the undisputed evidence demanded a finding that the deceased was an employee of the defendant at the time of his death; that at the time and place of the accident the deceased was in the performance of the defendant's business, namely, as an accompanying pilot on one of defendant's charter flights and that the injury was one peculiar to his employment as a charter pilot, and therefore, the accident arose out of and in the course of his employment.

The court erred in affirming the award denying compensation.

Judgment reversed. Sutton, C. J., and Parker, J., concur.