Aetna Casualty & Surety Co. v. Fulmer
Aetna Casualty & Surety Co. v. Fulmer
Opinion of the Court
Mrs. Margree Lucas Fulmer filed a claim for
The evidence adduced at the hearing is, for the most part, uncontradicted, and from this evidence the following appears: Fulmer was a flight instructor at the Statesboro airport for the Augusta School of Aviation, and although operations at Statesboro were ordinarily in charge of a brother of the owner of the school, this brother was absent at the time of the accident, and Fulmer was in charge of operations and had authority to determine when to fly and to use the airplane which crashed and burned, causing his death around 11 p. m. on January 20, 1948. His authority was limited to the extent that he had no authority to use an airplane in violation of the rules and regulations of the school and of the CAA. About 7:30 p. m. on the evening of the accident, Fulmer and three companions, Clarence Stafford, Harry Tucker, and Harold Sapp, went to Cecil’s Nightclub in Sapp’s automobile. They remained at the nightclub for about 30 minutes, and while there they consumed, between the four of them, a pint of whisky. After leaving the nightclub they went to Sapp’s home, obtained a fifth [of a gallon] of whisky, and drank about half of it, and returned to the nightclub, where they drank the rest of it. Stafford drank less than the others. Between 10 and 10:30 p.m. someone suggested that they go to the airport, which they did, in Sapp’s automobile. There were two cases of beer in the automobile at the time. After their arrival at the airport Sapp remained in front of an office building at the airport and began working on his automobile, and Fulmer, Stafford, and Tucker took an airplane out of the hangar and taxied by the place where Sapp was working on his automobile. Sapp, noticed that Fulmer was in the pilot’s seat, that Stafford was in the co-pilot’s seat, and that Tucker was in the rear seat of the three-seated airplane. Stafford was a student of the
For an injury to be compensable under the provisions of the Workmen’s Compensation Law it must be occasioned “by accident arising out of and in the course of the employment.” Code, § 114-102. An accident arises out of the employment, within the meaning of the law, when it arises because of it, as when the employment is a contributing proximate cause, or where the accident and resultant injury can be seen to have followed as a natural incident of the work and to have been contemplated by a person reasonably familiar with the entire situation, and it arises in the course of the employment, within the meaning of the law, when it occurs within the period of the employment at a place where the employee reasonably may have been engaged in fulfilling the duties of his employment, or in doing something incidental thereto, and the burden of proof is upon the claimant to show the concurrent existence of the above conditions, that is, that it arose out of and in the course of employment. Hughes v. Hartford Accident & Indemnity Co., 76 Ga. App. 785 (47 S. E. 2d, 143); Harper v. National Traffic Guard Co., 73 Ga. App. 385, 387 (36 S. E. 2d, 842); Aetna Casualty & Surety Co. v. Honea, 71 Ga. App. 569 (31 S. E. 2d, 421); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786). Findings of fact by the board, if supported by any competent evidence, are, in the absence of fraud, conclusive and binding on the courts. Code, § 114-710. Still, where there is no conflict in the evidence and but one legal conclusion can be reached therefrom, and that is, that the accident causing the injury to the claimant did not arise out of and in the course of the employment, an award by the board granting compensation must be set aside by the court on proper appeal. Aetna Casualty & Surety Co. v. Honea, supra; Gay v. Aetna Casualty & Surety Co., 72 Ga. App. 122 (33 S. E. 2d, 109). An injury to an employee while on a trip for his own private pleasure is not compensable. United States Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823 (5 S. E. 2d, 9). Where an employee is found dead
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 w.as 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.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code (Ann. Supp.), § 24-3501), requiring that the full court consider an^ case in which one of
Judgment reversed,, with direction.
Dissenting Opinion
dissenting. We are of the opinion that the board was authorized to find in favor of compensation. There is no use to cite authority for the proposition that if there is any evidence authorizing the findings of the board this court cannot interfere. The majority base their ruling on the theory that the evidence demanded a finding that the trip was for pleasure exclusively, based on the testimony of witness Sapp. Sapp testified that from what was said ‘the trip was a pleasure trip. In a court of law the answer would have been objectionable as a conclusion. The board had a right to rule and did rule on the validity of Sapp’s conclusion. The board explicitly rejected the testimony and showed in the award that the testimony was a conclusion. In this view the board had ample evidence on which to base the award.
Reference
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- ÆTNA CASUALTY & SURETY CO. Et Al. v. FULMER
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