Phoenix Indemnity Co. v. Industrial Accident Commission

EDMONDS, J. The Industrial Accident Commission awarded a death benefit to the widow of Marion Robert Hamilton, who was killed when the airplane he was flying crashed into a power line. By writ of review, Phoenix Indemnity Company, the insurance carrier of his employer, challenges the commission’s jurisdiction to make the award.

The findings of the commission are attacked by the insurer upon the sole ground that there is no evidence whatever tending to prove death arising out of employment, as required by section 3600 of the Labor Code. Although the accident may have occurred during the course of Hamilton’s employment, the argument runs, it did not arise out of such employment. More specifically, the act of Hamilton in taking his daughter for a ride was personal in nature, the employer loaned the plane to him for personal use, and the venture was not reasonably incidental to his employment.

The evidence showing the scope of Hamilton’s employment and the use of the plane at the time of the accident is quite brief. He was employed by Herbert Weggers, doing business as Weggers Airplane Seeding and Dusting Company. In addition to providing crop dusting and seeding service, Weggers [858]offered instruction in the handling and flight of airplanes. Hamilton was the designated flight instructor.

On the day of the accident, Hamilton had been continuously engaged since early morning in taking students aloft for instruction. He was required to be on duty until 5 p. m. or sundown. About an hour before that time, Mrs. Hamilton went to the airport with their 12-year-old daughter. Hamilton said to the little girl, "Come on, I will take you up on your orientation ride and see what kind of flier you are going to make." The father and daughter proceeded to the office and Hamilton asked Weggers if he might “use an airplane to take his daughter for a ride." Weggers replied, “Surely." The accident occurred soon after Hamilton and the girl took off in the plane.

Hamilton’s daughter had never been listed as a student and no arrangements had ever been made regarding instruction for her. Weggers testified that the regulations of Civil Aeronautics Authority do not permit the licensing as pilots of persons under 17 years of age, but he said that sometimes younger persons are taken up in the air for the purposes of determining whether or not they can learn to fly.