Pollock v. Reeves Bros., Inc., 534A84

• Decision Date: 02 April 1985
• Docket Number: No. 534A84,534A84
• Parties: Warren N. POLLOCK, Employee, and Barbara S. Beckwith, Widow, Barbara S. Beckwith, Guardian Ad Litem for Marnie Beckwith and Katie Beckwith, Minor Children of Peter O. Beckwith, Deceased, Employee, Plaintiffs, v. REEVES BROTHERS, INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendants.
• Court: North Carolina Supreme Court

Page 282

328 S.E.2d 282

313 N.C. 287

Warren N. POLLOCK, Employee, and Barbara S. Beckwith, Widow Barbara S. Beckwith, Guardian Ad Litem for Marnie Beckwith and Katie Beckwith, Minor Children of Peter O. Beckwith Deceased, Employee, Plaintiffs, v. REEVES BROTHERS, INC., Employer Liberty Mutual Insurance Company, Carrier, Defendants.

No. 534A84.

Supreme Court of North Carolina.

April 2, 1985.

Caudle & Spears by Lloyd C. Caudle and Richard S. Guy, for plaintiff-appellant Barbara S. Beckwith.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Philip R. Hedrick and Martha W. Surles, for defendants-appellees.

MARTIN, Justice.

The issue dispositive of this action for workers' compensation benefits is whether Peter O. Beckwith (Beckwith) suffered injuries by accident arising out of and in the course of his employment with defendant Reeves Brothers, Inc. (Reeves). We find that the accident did arise out of and in the course of Beckwith's employment, and therefore we reverse the decision of the Court of Appeals.

Warren N. Pollock (Pollock) was injured and Peter O. Beckwith was killed when a plane owned and piloted by Pollock crashed en route from Commerce, Georgia to Charlotte, North Carolina. The two men had flown to Commerce in separate private airplanes so that they could return to North Carolina in one plane while Federal Aviation Administration (FAA) registration numbers were painted on the other plane.

A deputy commissioner of the Industrial Commission made the following findings of fact which were subsequently adopted by the full Commission:

1. Warren N. Pollock (Pollock) was on 9 March 1982 and is still first vice president of defendant employer and president of defendant employer's Curon Division which is the North Carolina Division of the company. The deceased employee, Peter O. Beckwith (Beckwith), was manager of defendant employer's foam operation and vice president of the company. He worked directly under Pollock. Defendant employer manufactured various items including polyurethane foam. Defendant employer's North Carolina operations were located in Cornelius and the company had operations in various parts of the United States and in Canada.

2. Pollock owned and had owned since 1978 a Cessna 210 which was a single-engine aircraft. Pollock was a pilot and would pilot the plane for pleasure and for business purposes when necessary. Defendant employer paid Pollock $2,500.00 per year plus all gasoline for the use of the 210. Pollock maintained and hangared such aircraft at his own expense.

3. Sometime prior to March 1982 Pollock purchased a Piper Aztec which is a twin-engine aircraft. Pollock put the aircraft in the name of a partnership consisting of he and his wife. Pollock intended to sell his 210 aircraft and use the Aztec for company business purposes as well as for pleasure. The Aztec had a greater flight range and could be used for flights to Canada and other more distant places. The Aztec was maintained and hangared at Pollock's expense or at the expense of the partnership consisting of he and his wife.

4. Approximately two weeks prior to 9 March 1982 the Federal Aviation Authority assigned new numbers to Pollock's Aztec. Pollock desired to have the new numbers painted on the aircraft and decided to fly it to Commerce, Georgia, to have the work done on the plane.

5. Beckwith was also an airplane pilot and his pilot's lessons had been paid for by defendant employer when Beckwith was working for such defendant in Canada prior to 1981. Beckwith would from time to time make business associated flights in Pollock's aircraft and on occasions he would accompany Pollock on business trips by airplane. Beckwith on occasions also leased an aircraft for pleasure trips.

6. Pollock and Beckwith had a busy business schedule during the week of 9 March 1982. However, Pollock decided to work in between his business schedule a trip to get the numbers painted on his Aztec in Commerce, Georgia, or to at least leave the plane in Commerce to have the painting done. He decided to work in a trip to carry the Aztec to Commerce around his company work schedule on the morning of 9 March 1982. Being aware that Beckwith was a pilot, Pollock asked Beckwith to fly the 210 aircraft to Commerce while Pollock piloted the Aztec to Commerce. After arriving at such destination Pollock would leave the Aztec and return with Beckwith in the 210 to North Carolina where they would be able to continue with their business during the day and the ensuing week. Therefore on 8 March 1982 Pollock asked Beckwith to accompany him on such trip to Commerce, Georgia, on the morning of 9 March 1982. Beckwith stated that he preferred to take a practice flight in the 210 on 8 March 1982 before undertaking the flight to Georgia on the next day. Therefore, on the afternoon of 8 March 1982 Beckwith and Pollock did take a practice flight in the 210.

7. On the morning of 9 March 1982 Beckwith and Pollock left North Carolina and flew to Commerce, Georgia, with Pollock flying his Aztec and Beckwith flying the 210. After arriving at Commerce they left the Aztec to have the new letters painted on such plane. They then checked the 210 and left for the return flight to North Carolina. Upon obtaining an altitude of approximately 2,500 feet the engine quit. Pollock attempted to turn the plane around and go back to Commerce but was unable to do so. He then attempted to make an emergency landing in a field but hit trees going into the field and the plane crashed. Pollock and Beckwith had left North Carolina at approximately 8:00 a.m. and the return flight commenced at approximately 10:00 a.m. with the expectation of being back in their office between 11:00 a.m. and 12:00 noon.

After the full Commission reviewed the deputy commissioner's order, it made the following additional findings of fact:

8. The gasoline for the flight from North Carolina to Georgia was purchased by Pollock by use of the employer's credit card. Such flight was for the purpose of taking Pollock's Aztec to Georgia in order to have the new numbers painted on the plane. Neither Pollock nor Beckwith had any personal business to transact in Georgia, and the sole purpose of the trip was a maintenance tank [task] connected with operation of the Aztec. Pollock paid for the maintenance of both aircraft from his own funds, including the funds received from the employer for use of his planes as set out in Finding of Fact 2.

9. At the time complained of, Pollock and Beckwith were engaged in the discharge of a function which was calculated [to] further indirectly the employer's business. The accidents sustained by them arose out of and in the course of their employment.

10. Barbara S. Beckwith married Peter O. Beckwith on August 5, 1961 and, at the time complained of, was living with and dependent upon him for support. The two minors named in the caption were minor children of the deceased on the date of his death and the widow and said minors are entitled to all benefits due by reason of his death.

Based upon the foregoing findings the full Commission concluded as a matter of law that:

1. On the occasion complained of, the employees sustained an injury by accident arising out of and in the course of their employment. GS 97-2(6); Clark v. Burton Lines, 272 N.C. 433 ; See also Marks' Dependents v. Gray, 167 N.E. 181.

2. Barbara S. Beckwith and her two minor children were the sole whole dependents of Beckwith and are entitled to all compensation due by reason of his death. GS 97-38.

The Commission thereupon awarded workers' compensation benefits to both plaintiffs. Defendants appealed to the Court of Appeals where a divided panel reversed the full Commission's opinion and award. Plaintiff Beckwith appeals the decision of the Court of Appeals pursuant to N.C.G.S. 7A-30(2). ¹

As this Court stated in Hoffman v. Truck Lines, Inc., 306 N.C. 502, 506, 293 S.E.2d 807, 809-10 (1982), it is a well settled rule that

"[w]hether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner's findings in this regard, we are bound by those findings." Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). An appellate court is, therefore, justified in upholding a compensation award if the accident is "fairly traceable to the employment as a contributing cause" or if "any reasonable relationship to employment exists." Kiger v. Service Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963). In other words, compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer "to any appreciable extent" when the accident occurred. Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E.2d 596, 600 (1955). Such a determination depends largely upon the unique facts of each particular case, and, in close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers' Compensation Act. See Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976); Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930). With these principles in mind, we proceed to examine the individual merits of the case presently before us.

Defendants except only to finding of fact 9, a portion of finding of fact 8, and conclusion of law 1. Therefore we are bound by all other findings of fact and need determine only if those findings to which exception was taken are supported by competent evidence of record and, if so, whether the Commission's findings of fact support its conclusions of law. Based on our review of the record and the able arguments of counsel, we have concluded that the findings of fact made by the Industrial Commission to which defendants except are supported by competent evidence and that its conclusions of law are supported by its findings of...