Sargent v. Raymond F. Sargent, Inc.

• Decision Date: 22 September 1972
• Docket Number: SARGENT-W
• Citation: 295 A.2d 35
• Parties: Violaidow of Raymond F. Sargent (Employee-Fatal) v. RAYMOND F. SARGENT, INC. and/or The Employers' Liability Assurance Corporation, Ltd.
• Court: Maine Supreme Court

Page 35

295 A.2d 35

Viola SARGENT-Widow of Raymond F. Sargent (Employee-Fatal) v. RAYMOND F. SARGENT, INC. and/or The Employers' Liability Assurance Corporation, Ltd.

Supreme Judicial Court of Maine.

Sept. 22, 1972.

Silsby & Silsby, by Herbert T. Silsby, II, Ellsworth, for plaintiff.

Mahoney, Desmond, Robinson, & Mahoney by David C. Norman, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

Viola Sargent, widow of Raymond F. Sargent (Raymond), seasonably filed a petition with the Industrial Accident Commission alleging that her deceased husband met his death in an accident arising out of and in the course of his employment with Raymond F. Sargent, Inc. (Company), the Commission awarded compensation and the Company appealed from the pro forma decree of the Superior Court approving the action taken by the Commission.

The only issue is whether Raymond's death in an airplane crash during the process of landing on a wilderness lake (Harrington Lake), Raymond being the pilot, arose out of and in the course of his employment. It is conceded that the Company owned the airplane, used it for business purposes, and that Raymond's employment, at least in part, requiired him to serve as pilot.

The hearing commissioner, on the facts before him, found that although when Raymond 'started his landing approach at Harrington Lake, he deviated from the course of his employment,' the 'deviation was insubstantial' and, therefore, 'compensation is not to be denied.' The appellants urge that the Commissioner was in error in ruling that the deviation was insubstantial' and bottoms the appeal on the theory that, as a matter of law, Raymond 'was outside of the course of his employment when he sustained his fatal injuries.'

As we view the case, and basic to our ultimate decision, it is necessary to determine whether the Commissioner was correct in ruling that there had been a deviation from the course of employment by the decedent at the time of the fatal accident.

We begin our discussion, prior to a detailed analysis of the facts, with a recitation of the general legal principles involved.

By its own terms the Workmen's Compensation Act (39 M.R.S.A. § 1 et seq.) demands of the Industrial Accident Commission that, 'in interpreting this Act it shall construe it liberally and with a view to carry out its general purpose.' 39 M.R.S.A. § 92.

Our Court has said, '(i)n dealing with the Workmen's Compensation Act, its provisions must be liberally construed in favor of the workman and those dependent upon him.' Kirk v. Yarmouth Lime Co. and Travelers Insurance Co. (1940), 137 Me. 73, 74, 15 A.2d 184, 185.

Additionally, the Petitioner, being Raymond's widow, is entitled to the benefits of 39 M.R.S.A. § 64-A, which provides:

'In any claim for compensation, where the employee has been killed, or is physically or mentally unable to testify, there shall be a rebuttable presumption that the employee received a personal injury by accident arising out of and in the course of his employment, that sufficient notice of the injury has been given, and that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another.'

We have recently considered the purpose served by this presumption, and concluded that it did not operate to shift the ultimate burden of proof from the claimant to the employer, but is a procedural device casting on the employer only the burden of going forward with evidence. We said in Metcalf v. Marine Colloids, Inc. (Me.1972), 285 A.2d 367, 368:

'If and when evidence is produced which is believed by the Commission and which makes it as probable that the presumed fact did not exist as that it did exist, the presumption has fulfilled its procedural task and thereupon disappears from the case. If, however, such evidence is not produced, the presumtpion persists and compels a decision on the issue of compensable accident favorable to the petitioner. See Hinds v. John Hancock (Mutual Life) Ins. Co. (1959) 155 Me. 349, 364, 155 A.2d 721.'

Relating this rule to the facts before us, Mrs. Sargent is entitled to the presumption that her husband's death was caused by an accident which arose out of and in the course of his employment. Absent rebuttal testimony making it as probable, in the mind of the fact finder, that the fatal accident did not so arise and was not so caused as it is probable that it did, she becomes entitled to an award. ¹

While this Court is bound by the factual findings of the Commissioner, unless they are clearly erroneous, and has no right to substitute its own appraisal of the facts, the law does permit a review of factual conclusions based on inference.

"But the inferences which the commissioner draws from proved or admitted circumstances must needs be weighed and tested by this court. Otherwise it cannot determine whether the decree is based upon evidence or conjecture.

In other words, the court will review the commissioner's reasoning, but will not, in the absence of fraud, review his findings as to the credibility and weight of testimony.' . . ..'

Stanely v. Petroleum Tank Service, Inc. (Me.1971), 284 A.2d 280, 281.

This brings us to the vital question: Was the finding of 'deviation' (whether or not insubstantial) from the attempted landing on Harrington Lake a pure factual conclusion, or was it an inference drawn from 'proved or admitted circumstances'? To resolve this, we must, of necessity, examine the facts in detail.

The Company, of which Raymond was the President, was engaged in the construction business. Adelbert Sargent (Adelbert), Raymond's brother, was an occasional Company employee and was also the caretaker of camps located on Harrington Lake, property in which the Company had no ownership or interest.

The Company owned, and used for business purposes, a Cessna airplane which was flown on floats, and which was usually piloted by Raymond, although occasionally by Adelbert, also a pilot. Whatever hazards are inherent in flying an airplane designed to be flown off and onto water were incidental to Raymond's employment. These hazards would naturally include the surface conditions of the water on which the plane lands, whether rough, calm, choppy, smooth or 'glassy.' There was no evidence introduced from which a finding could be made that landing an airplane on water, whatever the surface conditions might be, posed any unusual or overhazardous problems to this particular aircraft. Nor was there any evidence from which it could be found that Raymond's capabilities as a pilot were limited by surface conditions, whatever they might be.

The Company had entered into a construction contract with the Bangor Hydro-Electric Company to make structural repairs to a dam (Lock Dam) on Chamberlain Lake, ² some 125 air miles due north of Ellsworth. Although Adelbert met his death in the accident, his relationship with the Lock Dam project was preserved in the record by the testimony of Kenneth Cosseboom, Chief Engineer of the Bangor Hydro-Electric Company. The Engineer was instructed by the Company's president, Raymond, to deal with Adelbert on such problems as might arise during the construction period and he did so.

Edward R. Sargent, the Company Treasurer, described the project manager as 'actually two people . . . my uncle Adelbert and my father, Raymond Sargent.' Although Adelbert was not listed on the Company payroll at the time of the fatal accident, the Treasurer testified that Adelbert occasionally flew the Company plane 'to help in Company business' and, relating to the Lock Dam project, 'I know he left Ellsworth for there and he came back with records of things that had happened there, so I assume he went there and returned.'

Mr. Cosseboom testified that on October 28, 1966, he met, by pre-arrangement, at Lock Dam with both Adelbert and Raymond 'to see if the work had been completed,' both Sargents participating in the 'close out' conference. To keep this appointment the Engineer himself had been flown to Lock Dam by a Bangor Hydro-Electric Company airplane.

On the day prior to the fatal accident, Adelbert, using the Company plane, had flown one Wilbur Ricker to the camps at Harrington Lake for the purpose of 'closing up.' Mr. Ricker was hired to do this by Adelbert, who was 'general caretaker of the camps.' Although Mr. Ricker preferred to do this work on October 28th and 29th, at Adelbert's urging and to 'help him out,' he agreed to do so on the 27th and 28th. Why these particular dates would 'help out' does not appear in the record. However, it was prearranged that Mr. Ricker would be picked up by plane on the 28th and returned to his home.

Mrs. Sargent and the Company Treasurer both testified that Raymond left Ellsworth on the morning of October 28th in the Company plane, and that his destination was Lock Dam.

The Sargent plane landed on Harrington Lake on the morning of the 28th, made a brief visit, and left for Lock Dam. The record does not disclose whether Raymond or Adelbert was acting as pilot on this occasion, but the visit only lasted 'probably 15 minutes' because 'Raymond was anxious and said (to Adelbert), let's get going.'

The Sargent brothers arrived at Lock Dam 'around 9 or 9:30,' stayed 'about an hour and a half' and then left for Greenville, some fifty-five miles distant southerly, for motor repairs to the airplane, returning and landing in less than two hours. Who the pilot was on the trip to Greenville and return is not disclosed.

One Donald Grindle, a Company employee, had been working at the construction site and was the surviving passenger in the airplane at the time of the fatal accident. From him we learn that the plane, piloted by Raymond, left Lock Dam 'about 4 o'clock,' made a stop at 'Telos' (another area of Chamberlain Lake) to pick up some 'gasoline cans,' and proceeded on to Harrington Lake.

Mr. Grindle described the...