Fulmer v. Aetna Cas. & Sur. Co.

• Decision Date: 20 November 1951
• Docket Number: No. 2,No. 33578,33578,2
• Citation: Fulmer v. Aetna Cas. & Sur. Co., 68 S.E.2d 180, 85 Ga.App. 102 (Ga. App. 1951)
• Parties: FULMER v. AETNA CASUALTY & SURETY CO. et al
• Court: Georgia Court of Appeals

Page 180

68 S.E.2d 180

85 Ga.App. 102

FULMER v.AETNA CASUALTY & SURETY CO. et al.

No. 33578.

Court of Appeals of Georgia, Division No. 2.

Nov. 20, 1951.

Rehearing Denied Dec. 5, 1951.

Syllabus by the Court.

Under all the facts and circumstances of this case the State Board of Workmen's Compensation was authorized to find from the evidence that the claimant's husband met his death at a time and place where he might reasonably have been expected to be in the performance of his duties as a flight instructor of the defendant Augusta School of Aviation, and that presumptively his death was caused by an accident which arose out of and in the course of his employment.

Henry J. Heffernan, Augusta, for plaintiff in error.

Martin, Snow & Grant, Macon, for defendants in error.

MacINTYRE, Presiding Judge.

This is the second appearance of this case in this court.When the case was here before this court, in a divided opinion, held: 'Under the evidence and the law applicable thereto, the claimant in this case failed to carry the burden of ultimately proving as a fact that her husband was killed by an accident arising out of and in the course of his employment.The only reasonable conclusion to be derived from the uncontradicted evidence is that Fulmer was killed in an airplane accident while piloting an airplane of his employer which he had authority to use at the time, if in compliance with certain flying rules and regulations, but which was being used solely for his own personal pleasure and that of his companions, and not while he was engaged in fulfilling the duties of his employment, or in doing anything incidental thereto.Under the evidence a finding for the employer and the insurer was demanded as a matter of law.It follows that the judge of the superior court erred in affirming the award granting compensation.The judge of the superior court is directed to remand the case to the State Board of Workmen's Compensation for further proof and consideration.'Aetna Casualty & Surety Co. v. Fulmer, 81 Ga.App. 97, 101, 57 S.E.2d 865, 868.

The evidence adduced upon the second hearing of the case, upon its remand to the State Board of Workmen's Compensation by this court, sufficiently supplemented the evidence adduced upon the first hearing, which has been summarized in Aetna Casualty & Surety Co. v. Fulmer, supra, to authorize the Board's finding that the claimant's husband met his death by an accident arising out of and in the course of his employment.

In the earlier decision, this court observed that Fulmer was in complete charge of operations at the flying school when Mr. Boshears, an official of the school, was absent, and had authority to determine when to fly and use the airplane which crashed and burned, causing Fulmer's death on the night of January 20, 1948.Stafford, who was also in the plane when it crashed, was a student of the flying school; and, under his program of training, was supposed...