Pollock v. Reeves Bros.

Judge WHICHARD

dissenting.

Pollock testified that many of the employer’s facilities were so located that it was “very, very inconvenient” to use commercial airlines, and that he flew his own airplane for that reason. He further testified: that he acquired the single-engine aircraft “so that [he] would have transportation to [his] various business con*203nections,” and that he acquired the twin-engine plane “[t]o have a better airplane to fly on . . . business trips”; that there was a time limit for getting the new FAA numbers painted on the plane, although he did not know what it was; and that the new number had been assigned about two weeks prior to the trip in question. “There is no specific time limit that I know of,” he stated, “but obviously if you are carrying an identification that says one number and the airplane has another number printed on it that is a kind of a problem, so we did want to get it done in due course.”

Finally, and more importantly, Pollock testified that the morning of the accident “was really the only time that we could do this. We could have the airplane out of service . . he stated, “because we wouldn’t be using it for the balance of the week.” In context, the testimony implies that this was the only period during which Pollock knew the plane would not be needed for the employer’s purposes, and that the morning of the accident was the only time during that period when his own business schedule permitted the trip.

The foregoing evidence indicates that Pollock purchased his planes primarily for use in the employer’s business, and that while he was under no definite time constraint to get the new FAA numbers painted on the second plane, he chose the time in question because it was the only suitable time in terms of use of the plane in the employer’s business. I believe that evidence thus could be held to sustain the Commission’s “finding of fact” that at the time of the accident Pollock was “engaged in the discharge of a function which was calculated [to] further indirectly the employer’s business.”

Our Supreme Court has stated:

An appellate court is . . . 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.” (Citations omitted.) In other words, compensability . . . basically turns upon whether the employee was acting for the benefit of his employer “to any appreciable extent” when the accident occurred. (Citations omitted.) 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 *204be given to the employee in accordance with the established policy of liberal construction and application of the Workers’ Compensation Act.

Hoffman v. Truck Lines, Inc., 306 N.C. 502, 506, 293 S.E. 2d 807, 810 (1982). I consider the case, as to Pollock, extremely close. In light of the evidence set forth above, however, and of the Supreme Court’s directive to give the employee the benefit of the doubt in close cases, I would affirm the award.

Even if Pollock were not engaged in promoting the employer’s interests, however, it does not necessarily follow that Beckwith was not. Pollock was Beckwith’s superior in the company. He directed that Beckwith make the trip.1 Beckwith had flown the single-engine aircraft on business trips several times as the pilot in command. He had also flown with Pollock on business trips to the employer’s facilities. Beckwith, therefore, presumably knew that the employer had authorized use of Pollock’s planes for corporate purposes. Pollock clearly had at least apparent authority to direct or request that Beckwith accompany him on a trip relating to the flight readiness of a plane which Beckwith presumably knew would be used for corporate purposes. In these circumstances Beckwith should not be compelled to determine, at his peril, whether the requested activity would place him beyond the ambit of the Workers’ Compensation Act.

Pollock was engaged in the task, arguably personal, of obtaining new identification numbers for his plane. He had discretion to determine whether to perform this task within or without the employer’s working hours. He was not aware of any deadline for securing the new numbers. Beckwith, however, at the direction of his superior, was engaged in the task of securing the return of the superior to the employer’s place of business so that the superior could perform tasks which, for corporate purposes, needed to be performed that day. He could have performed this task only at the time in question; and his performance at that time, because designed to insure the presence of his superior to perform corporate tasks in a timely manner, did have some “reasonable relationship” to the employment and was intended to *205benefit the employer to some “appreciable extent.” See Hoffman, supra. The circumstances of the two employees, and the tasks in which they were engaged, thus properly may be regarded as different.

The following principles set forth by Judge (later Justice) Britt should control the decision here as to the award to Beck-with’s dependents:

To be compensable an accident must arise out of the course and scope of employment. (Citation omitted.) Where the fruit of certain labor accrues either directly or indirectly to the benefit of an employer, employees injured in the course of such work are entitled to compensation under the Work[er’s] Compensation Act. (Citations omitted.)
This result obtains especially where an employee is called to action by some person superior in authority to him .... It appears clear that when a superior directs a subordinate employee to go on an errand or to perform some duty beyond his normal duties, the scope of the Worker’s] Compensation Act expands to encompass injuries sustained in the course of such labor. (Citations omitted.) . . .
The order or request need not be couched in the imperative. It is sufficient for compensation purposes that the suggestion, request or even the employee’s mere perception of what is expected of him under his job classification, serves to motivate undertaking an injury producing activity. So long as ordered to perform by a superior, acts beneficial to the employer which result in injury to performing employees are within the ambit of the act. (Citations omitted.)

Stewart v. Dept. of Corrections, 29 N.C. App. 735, 737-38, 225 S.E. 2d 336, 338 (1976). See also 1A, A. Larson, Law of Workmen’s Compensation Sec. 27.40 (1983) (“When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.”)

I vote to affirm the award to Beckwith’s dependents because I believe the foregoing principles, applied to the facts of this case, make it entirely proper. I vote to affirm the award to Pollock *206because, while of somewhat dubious propriety, I regard it as permissible in light of the directive to give the employee the benefit of the doubt.

. Pollock was asked at the hearing, “Did you direct [Beckwith] to plan for and to make this trip . . . with you?” He responded, “Yes, I guess you would have to say I did.”