Bisson v. Winnipesaukee Air Serv., Inc.

• Decision Date: 27 May 1940
• Citation: 13 A.2d 821
• Parties: BISSON v. WINNIPESAUKEE AIR SERVICE, Inc., et al.
• Court: New Hampshire Supreme Court

13 A.2d 821

BISSON

v. WINNIPESAUKEE AIR SERVICE, Inc., et al.

Supreme Court of New Hampshire. Belknap.

May 27, 1940.

Transferred from Superior Court, Belknap County; Young, Judge.

Proceeding under the Employers' Liability and Workmen's Compensation Act by Anne K. Bisson, administratrix, for death of George E. Bisson, opposed by the Winnipesaukee Air Service, Incorporated, and another. Claimant and the Phcenix Indemnity Company excepted, and the case was transferred.

Judgments for the plaintiff.

Petition, for compensation under the employers' liability and workmen's compensation act (P.L. 178). Trial by the court.

The plaintiff's intestate was killed while working on an amphibian airplane at Moosehead Lake in Maine on August 28, 1937. The petition was originally brought against the Winnipesaukee Air Service. Later the Phcenix Indemnity Company was made a party defendant. Subject to the plaintiff's exception, the petition was dismissed as to the Winnipesaukee Air Service, and the Presiding Justice entered a decree for the plaintiff against the Phcenix Indemnity Company. A motion to set aside this decree was denied subject to the Indemnity Company's exception. Exceptions were also taken to the admission and exclusion of evidence.

George E. Bisson, the plaintiff's intestate, was a licensed airplane mechanic. He was in the general employ of Pynn & Brown, Inc., at Laconia, as a repair man and automobile mechanic but, by an arrangement between Pynn & Brown and the Winnipesaukee Air Service, he worked for the latter company whenever that company required his services. The Air Service had its base, so called, at The Weirs, about six miles distant from the Pynn & Brown garage.

On August 26, 1937, employees of the Air Service transported a party by airplane from The Weirs to Mt. Kineo in Maine. At the beginning of the return trip, the plane, before leaving the water, struck a ledge in Moosehead Lake and became submerged. Notice of the accident was given Thomas Rice, president of the Air Service corporation, who called Pynn & Brown by telephone and "gave instructions that Mr. Bisson was to go to Maine at once with Floyd Miller in another of the company's planes and remain there and assist under Miller's directions in raising the plane and reconditioning it."

These instructions were followed, and Miller and Bisson arrived at Moosehead Lake that afternoon. The following day, with the aid of local help, the plane was brought ashore. Rice, who had come on from Boston to inspect the plane, ordered the work to proceed, with Miller in charge. The next day Bisson, while attempting to start the motors, "presumably jumped into line with one of the propellers, was struck by a blade and instantly killed."

Although the Air Service had accepted the provisions of the employers' liability and workmen's compensation act, it denied liability on the ground that the decedent was not in its employ and because the accident did not occur in this state. The Phcenix Indemnity Company, insurer of the Air Service under a policy of employers' liability insurance, disclaimed coverage on the ground that the decedent was not an employee of the Air Service and because the sums paid for his services, not being paid directly to him, could not be considered in computing the amount of the premium. On these issues the court made the following findings and rulings:

"Mr. Thomas Rice was the president and substantially the owner of the Air Service. He was also the owner of a majority of the capital stock of Pynn & Brown. * * * Mr. Bisson was about the only competent mechanic to work on air planes and the arrangement between the two companies was that whenever his services were needed Pynn & Brown would be notified and Mr. Bisson would report at the base or wherever required. For convenience the account of Bisson's time was kept by Pynn & Brown and he was paid by that company at the same rate whether employed for the Air Service or for them, namely seventy cents per hour. For such time as he was working for the Air Service Pynn & Brown charged that company ninety cents per hour. * * * There was no evidence that Bisson's name appeared on the payroll of the Air Service or that that company ever paid him personally anything for services, all payments being made through Pynn & Brown, who charged the extra for bookkeeping and handling the account. This arrangement continued from the time Bisson went to work for Pynn & Brown in May until his death the following August, during which time he worked for the Air Service * * * a little less than one-fourth of the time. * * *

"Bisson's employment by Pynn & Brown was with an understanding that the Air Service should have the first call upon his services. From the time that he reported at The Weirs for the trip to Maine he was under the direction and supervision of the Air Service up to the time of the accident. That company furnished him transportation, paid his expenses, directed what was to be done and how the work was to be done, and the court is of the opinion and so finds that he was in the employ of the Winnipesaukee Air Service, Inc., at the time he was killed, but the court understands that the New Hampshire compensation statute then had no application to 'workmen outside of the state,' and so rules as a matter of law the petition should be dismissed as to the Winnipesaukee Air Service, Inc.

"The plaintiff's right to recover against the Phoenix Indemnity Co. depends upon...