BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MICHAEL S. McKEAG, a Minor,
 
        by GLORIA J. McKEAG,
 
        Guardian/Conservator,
 
        
 
            Claimant,
 
        
 
        vs.                                File No. 771096
 
        
 
        MAHASKA BOTTLING COMPANY,            A P P E A L
 
        
 
            Employer,                     D E C I S I O N
 
        
 
        and
 
        
 
        GREAT AMERICAN INSURANCE
 
        COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision captioned a 
 
        decision on death benefits denying any benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing claimant's exhibits 1 through 10; and 
 
        defendants' exhibits A, and C through K.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant's decedent received an 
 
        injury which arose out of and in the course of his employment.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The decision of the deputy adequately and accurately reflects the 
 
        pertinent evidence and it will not be reiterated herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
        McKEAG V. MAHASKA BOTTLING CO.
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law in the 
 
        arbitration decision is adopted.
 
        
 
        In addition to the deputy's analysis it is noted that the deputy 
 
        correctly determined that the decedent did not have private use 
 
        rights of the aircraft. The majority of the personal uses by 
 
        decedent was for picking up his son for visitation. Those flights 
 
        were on Friday evenings when the flight was not likely to be 
 
        known to any other employees; the flight originated from an 
 

 
        
 
 
 
 
 
        airport twelve miles from the employer's plant; the fuel for the 
 
        flights was paid for in cash; and there was no logging of the 
 
        flight. The employer's aircraft mechanic testified that on the 
 
        day of the fatal flight he was in Northern Iowa and not at the 
 
        hangar at the Oskaloosa airport where he worked on aircraft. The 
 
        mechanic was unaware of decedent's flights to pick up his son.
 
        
 
        Claimant has not established that decedent's injury arose out of 
 
        and in the course of decedent's employment. Claimant is not 
 
        entitled to death benefits.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Decedent was an employee of the employer from spring 1981 
 
        until August 17, 1984.
 
        
 
        2. Decedent's designated title with the employer was Director of 
 
        Aviation.
 
        
 
        3. Pursuant to decedent's job description, decedent was 
 
        responsible for communicating with corporate officers for 
 
        authorization of nonbusiness use, including nonbusiness 
 
        passengers, of aircraft by anyone.
 
        
 
        4. Decedent on occasion flew corporate aircraft with nonbusiness 
 
        passengers for his own purposes.
 
        
 
        5. Decedent did not log any personal flights in his flight logs.
 
        
 
        6. Decedent paid for aviation gas used for personal flights with 
 
        cash and not with a credit card of the employer.
 
        
 
        7. The employer's aircraft were hangared at the Oskaloosa Airport 
 
        some twelve miles from Oskaloosa.
 
        
 
        8. Employer's plant was located in the city of Oskaloosa.
 
        
 
        9. Decedent's private use flights often occurred in the
 
        
 
        McKEAG V. MAHASKA BOTTLING CO.
 
        Page 3
 
        
 
        
 
        evening when other employees of the employer were not at the 
 
        hangar.
 
        
 
        10. Decedent's private use flights often were in the immediate 
 
        vicinity of the Oskaloosa Airport or were away from the Oskaloosa
 
        environs.
 
        
 
        11. Decedent's private use flights were often quite brief.
 
        
 
        12. Decedent's private use flights generally did not involve 
 
        passengers who would or could readily communicate decedent's use 
 
        of corporate aircraft to decedent's employer.
 
        
 
        13. Aircraft, including smaller aircraft such as the Cessna 170B, 
 
        are costly to operate.
 
        
 
        14. The Cessna 170B was the employer's oldest corporate plane and 
 
        had been the first plane which the employer's president had 
 
        purchased.
 
        
 
        15. The employer's president was surprised on August 17, 1984 
 
        when informed of decedent's accident and then stated decedent did 
 
        not have permission to fly the Cessna 170B.
 

 
        
 
 
 
 
 
        
 
        16. Decedent had no private use rights in the Cessna 170B or in 
 
        other corporate aircraft.
 
        
 
        17. Officials of the employer did not authorize decedent to fly 
 
        the Cessna 170B on the afternoon of August 17, 1984.
 
        
 
        18. Decedent's flight of that afternoon was a prohibited act.
 
        
 
        19. The employer's aircraft mechanic who worked where the 
 
        aircraft were hangared was not aware of any of decedent's 
 
        personal flights.
 
        
 
        20. The employer's aircraft mechanic was not at the airport the 
 
        afternoon of August 17, 1984.
 
        
 
        21. On August 17, 1984, decedent flew the Cessna 170B with a 
 
        private passenger to search for a model airplane the passenger 
 
        had lost.
 
        
 
        22. The employer had no direct interest in-the model airplane.
 
        
 
        23. The passenger was a member of the general public.
 
        
 
        24. The passenger's son was a local florist from whom the 
 
        employer occasionally purchased arrangements.
 
        
 
        McKEAG V. MAHASKA BOTTLING CO.
 
        Page 4
 
        
 
        
 
        25. The passenger and his acquaintances might have been induced 
 
        to drink the employer's products through the August 17, 1984 
 
        flight.
 
        
 
        26. The passenger's son might have been induced to deal more 
 
        fairly with the employer in his business dealings with the 
 
        company through the August 17, 1984 flight.
 
        
 
        27. The employer had not otherwise permitted use of company 
 
        planes for the private purposes of the general public.
 
        
 
        28. Any benefit conferred on the employer by the August 17, 1984 
 
        flight was minimal and not sufficient to override the costs of 
 
        the flight.
 
        
 
        29. Decedent had no authority to undertake the August 17, 1984 
 
        flight on the employer's behalf.
 
        
 
        30. The Cessna 170B was a well maintained aircraft.
 
        
 
        31. Decedent's proficiency in flying maneuvers required of him in 
 
        the Cessna 170B was sufficient and decedent never complained of 
 
        needing more flight time in order to increase his proficiency.
 
        
 
        32. Decedent's low and slow flight of August 17, 1984 in 95 
 
        degree weather in a strong wind potentially neither increased his 
 
        proficiency nor decreased plane maintenance.
 
        
 
        33. The employer received no benefit by way of increased pilot 
 
        proficiency or decreased plane maintenance sufficient to override 
 
        the fact that the flight was nonauthorized and, therefore, a 
 
        prohibited act in violation of the employer's expressed rules.
 
        
 
        34. It is not established that decedent washed the plane on 
 
        August 17, 1984.
 

 
        
 
 
 
 
 
        
 
        35. Flying a plane to dry it after washing is not standard 
 
        practice.
 
        
 
        36. Flying the plane to dry it after washing was a prohibited 
 
        act.
 
        
 
        37. Other plane maintenance was neither scheduled nor authorized 
 
        on August 17, 1984.
 
        
 
        38. Decedent was not within the period of his employment at a 
 
        place where decedent could reasonably be performing his
 
        
 
        McKEAG V. MAHASKA BOTTLING CO.
 
        Page 5
 
        
 
        
 
        duties, and while performing those duties or something incidental 
 
        to them while flying the Cessna 170B with a nonbusiness passenger 
 
        on August 17, 1984.
 
        
 
        39. The cause or source of decedent's August 17, 1984 fatal crash 
 
        was decedent's personal act of assisting a member of the general 
 
        public without his employer's authorization and in express 
 
        violation of his employer's rule regarding nonbusiness use of 
 
        corporate aircraft.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has not established by the greater weight of evidence 
 
        that decedent's August 17, 1984 injury arose out of and in the 
 
        course of decedent's employment.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That claimant pay all costs of this proceeding including the 
 
        costs of transcription of the arbitration hearing pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
        Signed and filed this 25th day of August, 1988.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
                                    
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MICHAEL S. McKEAG, a Minor,
 
         by GLORIA J. McKEAG,
 
         Guardian/Conservator,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 771096
 
         
 
         MAHASKA BOTTLING COMPANY,                    A P P E A L
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision captioned a 
 
         decision on death benefits denying any benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 10; and 
 
         defendants' exhibits A, and C through K.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is whether claimant's decedent received 
 
         an injury which arose out of and in the course of his 
 
         employment.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The decision of the deputy adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                   ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         PAGE   2
 
         
 
         
 
              In addition to the deputy's analysis it is noted that the 
 
         deputy correctly determined that the decedent did not have 
 
         private use rights of the aircraft.  The majority of the personal 
 
         uses by decedent was for picking up his son for visitation.  
 
         Those flights were on Friday evenings when the flight was not 
 
         likely to be known to any other employees; the flight originated 
 
         from an airport twelve miles from the employer's plant; the fuel 
 
         for the flights was paid for in cash; and there was no logging of 
 
         the flight.  The employer's aircraft mechanic testified that on 
 
         the day of the fatal flight he was in Northern Iowa and not at 
 
         the hangar at the Oskaloosa airport where he worked on aircraft. 
 
          The mechanic was unaware of decedent's flights to pick up his 
 
         son.
 
         
 
              Claimant has not established that decedent's injury arose 
 
         out of and in the course of decedent's employment.  Claimant is 
 
         not entitled to death benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Decedent was an employee of the employer from spring 
 
         1981 until August 17, 1984.
 
         
 
              2.  Decedent's designated title with the employer was 
 
         Director of Aviation.
 
         
 
              3.  Pursuant to decedent's job description, decedent was 
 
         responsible for communicating with corporate officers for 
 
         authorization of nonbusiness use, including nonbusiness 
 
         passengers, of aircraft by anyone.
 
         
 
              4.  Decedent on occasion flew corporate aircraft with 
 
         nonbusiness passengers for his own purposes.
 
         
 
              5.  Decedent did not log any personal flights in his flight 
 
         logs.
 
         
 
              6.  Decedent paid for aviation gas used for personal flights 
 
         with cash and not with a credit card of the employer.
 
         
 
              7.  The employer's aircraft were hangared at the Oskaloosa 
 
         Airport some twelve miles from Oskaloosa.
 
         
 
              8.  Employer's plant was located in the city of Oskaloosa.
 
         
 
              9.  Decedent's private use flights often occurred in the 
 
         evening when other employees of the employer were not at the 
 
         hangar.
 
         
 
             10.  Decedent's private use flights often were in the 
 
         immediate vicinity of the Oskaloosa Airport or were away from the 
 
         Oskaloosa environs.
 
         
 
             11.  Decedent's private use flights were often quite brief.
 
         
 
             12.  Decedent's private use flights generally did not involve 
 
         passengers who would or could readily communicate decedent's use 
 
         of corporate aircraft to decedent's employer.
 
         
 
             13.  Aircraft, including smaller aircraft such as the Cessna 
 
         170B, are costly to operate.
 
         
 
             14.  The Cessna 170B was the employer's oldest corporate 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         PAGE   3
 
         
 
         
 
         plane and had been the first plane which the employer's president 
 
         had purchased.
 
         
 
             15.  The employers president was surprised on August 17, 1984 
 
         when informed of decedent's accident and then stated decedent did 
 
         not have permission to fly the Cessna 170B.
 
         
 
             16.  Decedent had no private use rights in the Cessna 170B or 
 
         in other corporate aircraft.
 
         
 
             17.  Officials of the employer did not authorize decedent to 
 
         fly the Cessna 170B on the afternoon of August 17, 1984.
 
         
 
             18.  Decedent's flight of that afternoon was a prohibited 
 
         act.
 
         
 
             19.  The employer's aircraft mechanic who worked where the 
 
         aircraft were hangared was not aware of any of decedent's 
 
         personal flights.
 
         
 
             20.  The employer's aircraft mechanic was not at the airport 
 
         the afternoon of August 17, 1984.
 
         
 
             21.  On August 17, 1984, decedent flew the Cessna 170B with a 
 
         private passenger to search for a model airplane the passenger 
 
         had lost.
 
         
 
             22.  The employer had no direct interest in the model 
 
         airplane.
 
         
 
             23.  The passenger was a member of the general public.
 
         
 
             24.  The passenger's son was a local florist from whom the 
 
         employer occasionally purchased arrangements.
 
         
 
             25.  The passenger and his acquaintances might have been 
 
         induced to drink the employer's products through the August 17, 
 
         1984 flight.
 
         
 
             26.  The passenger's son might have been induced to deal more 
 
         fairly with the employer in his business dealings with the 
 
         company through the August 17, 1984 flight.
 
         
 
             27.  The employer had not otherwise permitted use of company 
 
         planes for the private purposes of the general public.
 
         
 
             28.  Any benefit conferred on the employer by the August 17, 
 
         1984 flight was minimal and not sufficient to override the costs 
 
         of the flight.
 
         
 
             29.  Decedent had no authority to undertake the August 17, 
 
         1984 flight on the employer's behalf.
 
         
 
             30.  The Cessna 170B was a well maintained aircraft.
 
         
 
             31.  Decedent's proficiency in flying maneuvers required of 
 
         him in the Cessna 170B was sufficient and decedent never 
 
         complained of needing more flight time in order to increase his 
 
         proficiency.
 
         
 
             32.  Decedent's low and slow flight of August 17, 1984 in 95 
 
         degree weather in a strong wind potentially neither increased his 
 
         proficiency nor decreased plane maintenance.
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         PAGE   4
 
         
 
         
 
         
 
             33.  The employer received no benefit by way of increased 
 
         pilot proficiency or decreased plane maintenance sufficient to 
 
         override the fact that the flight was nonauthorized and, 
 
         therefore, a prohibited act in violation of the employer's 
 
         expressed rules.
 
         
 
             34.  It is not established that decedent washed the plane on 
 
         August 17, 1984.
 
         
 
             35.  Flying a plane to dry it after washing is not standard 
 
         practice.
 
         
 
             36.  Flying the plane to dry it after washing was a 
 
         prohibited act.
 
         
 
             37.  Other plane maintenance was neither scheduled nor 
 
         authorized on August 17, 1984.
 
         
 
             38.  Decedent was not within the period of his employment at 
 
         a place where decedent could reasonably be performing his duties, 
 
         and while performing those duties or something incidental to them 
 
         while flying the Cessna 170B with a nonbusiness passenger on 
 
         August 17, 1984.
 
         
 
             39.  The cause or source of decedent's August 17, 1984 fatal 
 
         crash was decedents personal act of assisting a member of the 
 
         general public without his employer's authorization and in 
 
         express violation of his employer's rule regarding nonbusiness 
 
         use of corporate aircraft.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established by the greater weight of 
 
         evidence that decedent's August 17, 1984 injury arose out of and 
 
         in the course of decedent's employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay all costs of this proceeding including the 
 
         costs of transcription of the arbitration hearing pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Donald J. Charnetski
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         PAGE   5
 
         
 
         
 
         Attorney at Law
 
         1022 Broad St.
 
         P.O. Box 655
 
         Grinnell, Iowa 50112
 
         
 
         Mr. Jack W. Rogers
 
         Attorney at Law
 
         100 Court Ave., Suite 203
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1100 - 1111
 
                                                Filed August 25, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL S. McKEAG, a minor,
 
         by GLORIA J. McKEAG,
 
         Guardian/Conservator,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 771096
 
         
 
         MAHASKA BOTTLING COMPANY,                    A P P E A L
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         GREAT AMERICAN INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100 - 1111
 
         
 
              Pilot killed in crash of corporate plane during unauthorized 
 
         flight did not sustain injury which arose out of and in the 
 
         course of his employment.  Pilot's pattern of unauthorized 
 
         flights for personal use was unknown to employer and claimant had 
 
         not established that the pilot had authorized personal use of 
 
         aircraft.  Pilot's use of plane served no purpose for the 
 
         employer.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MICHAEL S. McKEAG, a Minor,
 
          by GLORIA J. McKEAG,
 
          Guardian/Conservator,
 
                                                        File No. 771096
 
              Claimant,
 
         
 
          VS.                                           D E C I S I 0 N
 
          
 
          MAHASKA BOTTLING COMPANY,                           0 N
 
          
 
              Employer,                                    D E A T H
 
          
 
          and                                           B E N E F I T S
 
          
 
          GREAT AMERICAN INSURANCE
 
          COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding for death benefits brought by Michael 
 
         S. McKeag, a minor, by Gloria J. McKeag, guardian/conservator, 
 
         against decedent Marlin McKeag's employer, Mahaska Bottling 
 
         Company, and its insurance carrier, Great American Insurance 
 
         Companies, to recover benefits under the Iowa Workers' 
 
         Compensation Act, as a result of an alleged injury and death of 
 
         August 17, 1984.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner at the office of the 
 
         Division of Industrial Services, in Des Moines, Iowa, on December 
 
         15, 1986.  But for briefs filed by both parties, the record was 
 
         considered fully submitted at close of hearing.  The division's 
 
         file reveals that a first report of injury was filed October 22, 
 
         1984.
 
         
 
              The record in this case consists of the testimony of Gloria 
 
         McKeag, Michael S. McKeag, Sara McKeag, Gregory McKeag, Steve 
 
         McKeag, Blane Mayfield, Lowell Weir, Melvin Wineger, Margaret Ann 
 
         Wineger, Ray S. Wyland, Ronald A. Pettit, Jacob W. Roberts, 
 
         Steven J. Muhl, and Bradley G. Muhl, as well as of claimant's 
 
         exhibits 1 through 10 and defendants' exhibit A, C, D, E, F, G, 
 
         H, I, J, and K.  All objections to exhibits are overruled.  
 
         Claimant's exhibit 1 is the birth certificate of Michael S. 
 
         McKeag.  Claimant's exhibit 2 is a certified copy of the decree 
 
         of dissolution of marriage of Gloria J. McKeag and Marlin L. 
 
         McKeag.
 
         
 
         Claimant's exhibit 3 is a picture of the Cessna 170B airplane.  
 
         Joint exhibit 4 is an aircraft hull and liability policy issued 
 
         by Transport Indemnity Company dated February 29, 1984.  
 
         Claimant's exhibit 5 is answer to interrogatory number 1 
 
         propounded to employer.  Claimant's exhibit 6 is an article "Good 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   2
 
         
 
         
 
         as NewO in the April 1985, Flying magazine, Volume 112, Number 4, 
 
         page 28.  Claimant's exhibit 7 is a job description for director 
 
         of aviation.  ClaimantOs exhibit 8 is answer to interrogatory 
 
         number 2 on second set of interrogatories propounded to employer.  
 
         Claimant's exhibit 9 is answer to interrogatory number 1, third 
 
         set of interrogatories to employer.  Claimant's exhibit 10 is the 
 
         first report of injury submitted for wage information only.  
 
         Defendants' exhibit A is a picture of a Cessna 170B airplane.  
 
         Defendants' exhibit C is Marlin McKeag's spendable earnings 
 
         records.  Defendants' exhibit D is a list of checks written by 
 
         Marlin McKeag to Pepsi Cola or Mahaska Bottling Company.  
 
         Defendants' exhibit E is a 1984 aircraft log.  Defendants' 
 
         exhibit F is claimant's answers to request for admissions.  
 
         Defendants' exhibit G is all interrogatory answers and 
 
         productions of documents by claimant and employer.  Defendants' 
 
         exhibit H is a Federal Aviation Administration waiver.  
 
         Defendants' exhibit I is 1980 through 1984 aircraft logs.  
 
         Defendants' exhibit J is the November 25, 1986 deposition of John 
 
         Muhl.
 
         
 
                                      ISSUES
 
         
 
              The issues to be resolved are:
 
         
 
           1)  Whether decedent received an injury which arose out of
 
           and in the course of his employment;
 
         
 
           2)  Whether decedent's surviving dependent is entitled to
 
         death benefits; and
 
         
 
           3)  Decedent's rate of weekly compensation.
 
         
 
              Defendants assert the defenses of conduct in violation of 
 
         the employer's rules and rash act.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Marlin McKeag had been employed by Mahaska Bottling Company 
 
         as its corporate pilot with the designated title of Director of 
 
         Aviation since Spring 1981.  A job description, revised as of 
 
         December 8, 1983, stated the director was to become actively 
 
         involved in learning and performing all functions of the company, 
 
         including all departments; was to act as pilot and maintain the 
 
         company aircraft; and was to train other employees.  The job 
 
         description also stated the position was responsible for 
 
         communicating with corporate officers for the authorization of 
 
         nonbusiness use, including nonbusiness passengers, of the 
 
         aircraft by anyone.  As corporate pilot, Marlin McKeag flew
 
         
 
         Mahaska Bottling company officials to trips at the company's 
 
         various holdings throughout the midwest.  He also assisted the 
 
         airplane mechanic on airplane maintenance, did other motor 
 
         vehicle maintenance for the company, and was involved in quality 
 
         .control with the company.
 
         
 
              Mahaska Bottling Company is owned by the Muhl family and 
 
         manufactures and distributes Pepsi Cola products.  Generally, 
 
         members of the Muhl family are executive officers of the company.  
 
         Mahaska Bottling Company owned three or four corporate aircraft 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   3
 
         
 
         
 
         in 1984, among them, a Cessna 170B, company's oldest and smallest 
 
         aircraft.  The Cessna 170B had been modified with a STOL kit and 
 
         was used primarily for banner towing, a service Mahaska Bottling 
 
         Company provided its customers.  Banner towing involves flying 
 
         "low and slow," generally in a populated area, with a banner 
 
         attached to the plane for advertising or other messages.  The 
 
         Cessna 170B was a fixed gear, taildragger plane.  A number of 
 
         witnesses characterized that type of plane as more difficult to 
 
         take off and land than tricycle gear planes.  The Cessna 170 B 
 
         had a Pepsi logo on its tailgate.  The plane, like other Mahaska 
 
         Bottling Company corporate aircraft, was housed at the Mahaska 
 
         Bottling Company hangar at the Oskaloosa Airport.  The airport 
 
         was approximately twelve miles from the city of Oskaloosa itself 
 
         where the Mahaska Bottling Company plant was located.
 
         
 
              On August 17, 1984, at approximately 3:00 or 4:00 p.m., 
 
         Marlin McKeag agreed to assist Mr. Jim Woodard, an elderly 
 
         gentleman, who was not a Mahaska Bottling Company employee, 
 
         locate a model airplane by searching for the model in the Cessna 
 
         170B.  Mr. Woodard accompanied Mr. McKeag on that flight.  The 
 
         temperature on August 17, 1984 was approximately 95 degrees.  
 
         There was a strong wind.  McKeag was flying the airplane in the 
 
         vicinity of the Oskaloosa Airport in a "low and slow" flight 
 
         pattern.  The plane crashed and both decedent McKeag and Mr. 
 
         Woodard were killed.  Mahaska Bottling Company officials had not 
 
         expressly authorized the flight in search of the model airplane 
 
         and were unaware of that flight until after they were informed of 
 
         the crash.  Neither Mahaska Bottling Company itself, nor any of 
 
         its corporate members, had any other involvement with model 
 
         airplanes.  The company and its corporate officers had no 
 
         expressed dealings with Mr. Woodard, but did know of his son, a 
 
         local florist, from whom the company had on occasion purchased 
 
         items.  Items were also purchased from other florists in the 
 
         Oskaloosa area.
 
         
 
              Disputed evidence centers on whether decedent had expressed 
 
         or implied permission of Mahaska Bottling Company to fly the 
 
         Cessna 170B and whether Mahaska Bottling Company derived some 
 
         benefit from decedent's flying that or other corporate craft for 
 
         purposes not directly related to transporting Mahaska Bottling 
 
         Company officials either generally or on August 17, 1984.
 
         
 
              Gloria McKeag, decedent's former wife and mother and 
 
         custodian of his son, Michael S. McKeag, testified that 
 
         decedent's duties were at the Mahaska Bottling Company's hangar 
 
         at the Oskaloosa Airport when decedent was not flying corporate 
 
         craft.  She reported that decedent had flown the Cessna 170B to 
 
         the Montezuma Airport where he then picked up his son, Michael, 
 
         on Friday evenings on various occasions in 1981 through 1984.  
 
         She indicated that decedent and his son then flew back to 
 
         Montezuma on Sunday afternoons at the completion of the weekend 
 
         visitation.  She stated that decedent was never accompanied by a 
 
         Mahaska Bottling employee on those flights and was generally 
 
         alone.  Mrs. McKeag testified that Michael had accompanied 
 
         decedent and members of the Muhl family on a trip to the Bahamas 
 
         in December 1981 and January 1982.  She reported that the Muhl 
 
         family had permitted Michael to accompany the family to Kansas 
 
         City for a Michael Jackson concert in July 1984.  Decedent had 
 
         been ill at the time.  The flight was on a rented plane with a 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   4
 
         
 
         
 
         noncorporate pilot.  Mrs. McKeag further testified that decedent 
 
         had flown family members about the Mahaska Airport in 1982 and 
 
         that decedent with Michael and Gary McKeag and Sara McKeag had 
 
         flown a larger Bonanza plane owned by Mahaska Bottling Company 
 
         for an overnight trip to attend Gary McKeag's son's graduation in 
 
         Minneapolis in Spring 1983.  Mrs. McKeag testified that on August 
 
         15, 1984, Marlin McKeag flew the Cessna 170B from the Oskaloosa 
 
         Airport to the Montezuma Airport where she and Michael McKeag 
 
         picked up Marlin Mckeag and left to register Michael for junior 
 
         high school.  That flight occurred before 10:00 a.m. The plane 
 
         was parked in the Montezuma Airport while the registration was 
 
         taking place.
 
         
 
              Michael S. McKeag confirmed his mother's testimony regarding 
 
         the alleged visitation and other flights.  He reported that 
 
         decedent was usually alone and wearing his blue work uniform 
 
         containing the Pepsi logo when he arrived at the Montezuma 
 
         Airport for visitation.  He reported that Ray Wyland, the Mahaska 
 
         Bottling Company airplane mechanic, was once present at the 
 
         hangar when he and his father returned from Montezuma.  Michael 
 
         McKeag testified that Mahaska Bottling Company executives knew of 
 
         his visitation flights with his father as Michael had told them 
 
         of the flights.  He reported they raised no objections but did 
 
         ask him how he liked flying with his father.  Michael McKeag 
 
         testified that in July 1984, he flew with decedent a number of 
 
         times while staying with decedent.  He indicated that one flight 
 
         was in the Cessna 170 while banner towing was in progress and 
 
         another flight was in the Bonanza to pick up parts in Des Moines.  
 
         Michael McKeag testified that Bob Pax, a Mahaska Bottling Company 
 
         sales manager, picked up the parts from the plane on the latter 
 
         trip.  Michael McKeag stated that decedent had never discussed 
 
         plane use with him.  Michael McKeag reported that decedent was 
 
         generally at the hangar until 6:00 p.m. every day although he had 
 
         to check in at the Mahaska Bottling plant each day.  He reported 
 
         that at the hangar, decedent washed and serviced planes, worked 
 
         on flight books, and built banners.  He reported that model 
 
         airplanes often flew in the vicinity of the Oskaloosa Airport.  
 
         Michael McKeag acknowledged that his father had rented an 
 
         airplane in 1983 to attend decedent's brother's wedding in 
 
         Virginia.
 
         
 
              Sara McKeag, decedent's sister-in-law, who is a photographer 
 
         and dark room technician, stated that in Spring 1983 decedent at 
 
         her request flew about a lake in the Cessna 170B to enable her to 
 
         take aerial photos.  She reported that in September 1983 decedent 
 
         flew her about the Montezuma square in the Cessna 170B to enable 
 
         her to take aerial photos.  She reported that decedent had flown 
 
         himself and she and Gary McKeag to an evening event in the 
 
         Mahaska Bottling Company's Bonanza airplane with return and 
 
         takeoff on the same evening.  She reported that she and Gary 
 
         McKeag had accompanied decedent to Des Moines in a corporate 
 
         plane to pick up the Steve Muhl family after a Colorado ski trip.  
 
         Sara McKeag reported that Steve Muhl did not object to her and 
 
         Gary's presence on the plane.  Sara McKeag indicated that 
 
         decedent had advised her that he had "no problem" in plane use 
 
         since his employers liked him to keep current.  She indicated she 
 
         was also present for the Minneapolis graduation flight in Spring 
 
         1983.
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   5
 
         
 
         
 
              Gary McKeag, Sara's husband and decedent's brother, stated 
 
         that decedent had open usage of the Cessna 170B although he had 
 
         to get approval for other planes.  He corroborated other 
 
         testimony regarding various flights and reported that decedent 
 
         had had to get Mahaska Bottling Company's approval of the Spring 
 
         1983 graduation flight and had had to pay for gas used.  He 
 
         testified that at the crash site, John Muhl, president of Mahaska 
 
         Bottling Company, had stated decedent had no permission to fly 
 
         the Cessna 170B.
 
         
 
              Blane Mayfield, owner of De May Aircraft Adjusting Company 
 
         for twenty-four years, investigated the August 17, 1984 crash.  
 
         Mr. Mayfield testified that Jake Roberts, administrative director 
 
         for Mahaska Bottling Company, told Mayfield that as corporate 
 
         pilot, decedent could fly the plane almost anytime he wished.  
 
         Mayfield also stated that airport personnel had said "they" could 
 
         fly the Cessna 170B whenever they wanted.  Mayfield reported he 
 
         assumed "they" meant Mahaska Bottling Company employees.
 
         
 
              Steve McKeag, decedent's brother who is a pilot and a 
 
         captain in the United States Air Force, testified that he had 
 
         flown with decedent on three occasions.  He reported that in 
 
         Spring 1982, he and decedent flew to an antique airfield in 
 
         southern Iowa.  No Mahaska Bottling Company officials were then 
 
         present.  He reported that in Spring 1983, decedent took him on a 
 
         flight about the hangar area after calling Mahaska Bottling 
 
         Company and "telling them where he was going."  Steve McKeag 
 
         reported that John Muhl then asked Steve McKeag how he had liked 
 
         flying with decedent.  Steve McKeag testified that he had once 
 
         also accompanied decedent and Mahaska Bottling Company executives 
 
         on a business trip to Minneapolis in another corporate plane.  
 
         Steve McKeag testified that decedent had told him that decedent 
 
         had greater leeway regarding personal use of the Cessna 170B in 
 
         that the larger planes cost too much to operate.  He testified 
 
         that decedent had reported he could not log all of his Cessna 
 
         170B flying hours without "bumping" aviation pilot specifications 
 
         or overflying his crew and thereby jeopardizing his pilot's 
 
         license.  Steve McKeag testified that Jake Roberts had told him 
 
         decedent was allowed to use the Cessna 170B for personal use but 
 
         that John Muhl had said decedent had no permission to use the 
 
         Cessna 170B.
 
         
 
              Melvin Wineger, the fixed base operator and airport manager 
 
         at the Oskaloosa Airport, has a home located at the airport.  Mr. 
 
         Wineger testified that he knew of two or three times when 
 
         decedent had picked up his son for visitation using the Cessna 
 
         170B while employed with Mahaska Bottling Company.  Wineger 
 
         testified that decedent paid cash for aviation gas purchased when 
 
         he used the plane for his personal purposes; decedent otherwise 
 
         used a Mahaska Bottling Company credit card for gas purchased for 
 
         other purposes.  Aviation gas cost approximately $2.00 per gallon 
 
         in 1984.  Three to five gallons of aviation gas would be used on 
 
         one-half hour of flight of the Cessna 170B.
 
         
 
              Margaret Ann Wineger, Melvin  Wineger's wife, reported that 
 
         she observed the crash on August 17, 1984 from her home and later 
 
         called John Muhl to inform him of the crash.  She stated that 
 
         John Muhl seemed surprised when told of the crash and reported 
 
         that decedent had no permission to be flying.
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   6
 
         
 
         
 
         
 
              Steven J. Muhl, vice president of operations for Mahaska 
 
         Bottling Company, reported that per his job description, decedent 
 
         was to communicate with corporate officers for authorization of 
 
         nonbusiness use of all planes including having nonbusiness 
 
         passengers in the aircraft.  Steven Muhl stated that decedent was 
 
         told within six months of decedent's employment that John Muhl 
 
         had to approve all personal use of aircraft.  Steve Muhl 
 
         indicated that decedent had asked about and been denied personal 
 
         use of aircraft on several occasions and that decedent 
 
         subsequently rented planes for personal use.  He testified that 
 
         the decedent's sonOs accompanying decedent on aircraft had been 
 
         approved on a number of times but that he was unaware of the 
 
         visitation trips or of the photography trips and did not 
 
         recollect other persons being in the plane on other occasions.  
 
         He reported that had he been aware of the visitation and other 
 
         trips, decedent would have been reprimanded.  Steve Muhl reported 
 
         that Jake Roberts coordinated all corporate flights and that only 
 
         approved, nonemployee passengers were allowed.  He stated that 
 
         decedent had had no permission for the final flight or for 
 
         carrying Mr. Woodard as a passenger and that decedent had no 
 
         right to either fly the plane or allow a passenger on a flight 
 
         without corporate approval.,
 
         
 
              Steve Muhl stated that decedent had never reported that he 
 
         was not,logging all of his hours, or that he had a problem with 
 
         getting too many hours, or stated that he was not getting enough 
 
         training on the Cessna 170B.  Steve Muhl reported that the hangar 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   7
 
         
 
         
 
         had a work bench, a filing cabinet, and a tool chest only and 
 
         that decedent was required to either personally report to or call 
 
         into the Mahaska Bottling Company plant each work day.
 
         
 
              Bradley G. Muhl, vice president of marketing for Mahaska 
 
         Bottling Company, testified that decedent had no personal use 
 
         rights with company planes.  He indicated that dececent had once 
 
         requested to fly a corporate plane to Chicago and that that 
 
         request was categorically denied.  Bradley Muhl testified that 
 
         only John Muhl could authorize personal use of corporate planes.  
 
         He stated that he had been unaware of visitation flights or other 
 
         trips described in the testimony.  He characterized those flights 
 
         as a violation of company policy, but agreed it was fair to say 
 
         that nonofficers and their spouses and their children had been on 
 
         the plane on occasion.  Bradley Muhl testified that he had no 
 
         indication decedent was not to keep an accurate flight log or 
 
         that too many hours were being logged on corporate planes.  
 
         Bradley Muhl described the company as geographically located such 
 
         that the FFA flight limits were not a problem.  Mahaska Bottling 
 
         Company has facilities in Salina, Kansas, and Norfolk, Nebraska, 
 
         as well as warehouses in Iowa, Kansas, and Nebraska.  Bradley 
 
         Muhl testified that decedent had not complained that the aircraft 
 
         was not flown enough for decedent's piloting proficiency or for 
 
         aircraft maintenance.
 
         
 
              John Muhl, president of Mahaska Bottling Company, stated 
 
         that no one could use corporate planes for nonbusiness purposes.  
 
         He reported that he had denied decedent personal use of planes on 
 
         a number of occasions and that planes were never rented to 
 
         individuals.  John Muhl stated that persons found violating the 
 
         nonbusiness use rule would have been fired.  John Muhl reported 
 
         that all flights had to be approved and that Mahaska Bottling 
 
         Company customers were never allowed in the corporate planes.  He 
 
         characterized the August 17, 1984 flight as a direct violation of 
 
         company rules and policies and as not in any way connected with 
 
         Mahaska Bottling Company's business.  He testified that persons 
 
         were never given rides in the corporate planes as a good will 
 
         gesture.  John Muhl testified that decedent had never stated he 
 
         desired to use the Cessna 170 in order to increase his 
 
         proficiency or to maintain the plane.  John Muhl reported that 
 
         decedent issued checks to Mahaska Bottling Company for pay back 
 
         of decedent's bills after decedent had been on extended trips for 
 
         the company.  During those trips, the company paid decedent's 
 
         personal bills and decedent then reimbursed the company.  Muhl 
 
         characterized those checks as never for airplane use.  Muhl 
 
         denied that decedent's duty station was at the hangar and stated 
 
         that while decedent was not on call twenty-four per day, he would 
 
         be on call for emergencies which arose as would be other 
 
         employees.
 
         
 
              Ronald A. Pettit, general manager of Mahaska Bottling 
 
         Company, and a corporate employee for approximately thirty years, 
 
         stated that he had never discussed personal use of company craft 
 
         with decedent, but to his knowledge claimant had no personal use 
 
         rights in company craft.  He reported that he understood that 
 
         Steve, Bradley, or John Muhl or himself could authorize aircraft 
 
         use.  Mr. Pettit stated he had never authorized use of the 170B 
 
         for goodwill passenger flights or for other nonbusiness purposes.  
 
         He reported that decedent had never complained to him that the 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   8
 
         
 
         
 
         170B needed greater use for maintenance or that decedent was not 
 
         able to log all of his flight time.
 
         
 
              Jacob William Roberts, administrative director of Mahaska 
 
         Bottling Company, coordinated use of company planes and flight 
 
         scheduling.  Roberts received aircraft logs kept by decedent.  
 
         Roberts reported that decedent had never told him he was not 
 
         keeping track of all time flown because he may have flown too 
 
         many hours.  Roberts reported that the logs did not indicate any 
 
         personal flights.  Roberts characterized personal flights without 
 
         corporate officers' permission as a violation of company rules.  
 
         He stated decedent had no independent judgement regarding 
 
         aircraft use.  He reported that decedent would have been severely 
 
         reprimanded for an initial violation of the personal use rule and 
 
         terminated for a second violation.  Roberts stated that decedent 
 
         did not complain that he was not flying sufficient hours for 
 
         personal proficiency or for plane maintenance.  Roberts testified 
 
         that he told Mayfield that decedent needed corporate officers' 
 
         approval before he could have personal use of the plane.  Roberts 
 
         testified he had a vague recollection of a conversation with 
 
         Steve McKeag in which he told McKeag it had been determined that 
 
         decedent was not on Mahaska Bottling Company business at the time 
 
         of the fatal flight and that, therefore, workers' compensation 
 
         was not appropriate.
 
         
 
              Ray S. Wyland, a certified aircraft mechanic since 
 
         approximately 1973 and Mahaska Bottling Company's corporate 
 
         aircraft mechanic in 1984, testified that decedent had never 
 
         complained that the Cessna 170B was not getting enough use or 
 
         that he needed greater flying hours in the plane to increase his 
 
         own proficiency.  Wyland testified that neither decedent nor 
 
         Mahaska Bottling Company officials had indicated that decedent 
 
         had personal use rights in the 170B and denied that he had ever 
 
         seen decedent and his son leave the 170B.  He reported he had 
 
         seen Michael McKeag in the hangar area at times and reported that 
 
         on some Friday nights decedent remained at the hangar after 
 
         Wyland left at approximately 5:30 or 6:00 p.m.  Decedent had a 
 
         key to the hangar and was authorized to be in the hangar area.  
 
         Wyland reported that on one occasion he had seen Michael McKeag 
 
         with his father in a banner towing flight and stated that flights 
 
         in the airport perimeter were not uncommon.  Wyland agreed that 
 
         decedent's aircraft logs for 1984 did not record any personal 
 
         use,of the plane.  He stated he knew of no plane use not reported 
 
         to him or logged but that trips which were not reported or 
 
         reported on authorized trips were possible.
 
         
 
              Lowell Weir is an engineer and pilot with Quinn Machine and 
 
         Foundry.  He has piloted planes since 1955 and has been a flight 
 
         instructor and a fixed base operator.  Lowell has had over 1000 
 
         hours flight time in taildraggers; he believes they are more 
 
         difficult to fly than tricycle planes.  He reported that a STOL 
 
         equipped plane is equipped for short takeoff and landings and, 
 
         therefore, can maintain slower speeds but is harder to take off 
 
         and needs to be slowed down differently than a non STOL equipped 
 
         plane.  He stated that in banner towing, hooking the banner is 
 
         difficult and extra power is needed to overcome the power drag.  
 
         He characterized the banner towing pilot as needing a good feel 
 
         for the plane at pickup time and as using a low and slow flight 
 
         pattern which could be quite dangerous for a new or unpracticed 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page   9
 
         
 
         
 
         pilot.  Weir agreed that increased flight time increases the 
 
         pilot's proficiency in the plane in that the pilot is then more 
 
         knowledgeable about the idiosyncrasies of the particular plane.  
 
         He described decedent's flight of August 17, 1984 as a low and 
 
         slow flight in some respects similar to banner towing flights.  
 
         Weir agreed, however, that flight within 150 to 200 feet of the 
 
         ground at a very slow speed is not recommended because one can 
 
         see better at 300 to 400 feet and also has greater reaction time 
 
         at that height.
 
         
 
              Weir reported that a frequently flown plane requires less 
 
         frequent oil changes and has less parts corrosion than does a 
 
         less frequently flown plane.  He reported that both the engine 
 
         and the avionics system will last longer if the plane is flown 
 
         more frequently and kept in a warm place.  He characterized 
 
         ground running as not as good as flight time because it doesn't 
 
         assure uniform air flow and cooling throughout the plane.  He 
 
         reported that at least twenty hours of flight time per month is 
 
         generally recommended and that the Cessna 170B was flown only 7.8 
 
         hours in the 30 days immediately prior to August 17, 1984.     He 
 
         opined that the engine and the radio especially could have 
 
         benefited from decedent's final flight.
 
         
 
              Steven McKeag testified that he has a total of 2,200 hours 
 
         flying time and is familiar with avionics, engine, and air frame 
 
         maintenance on airplanes.  He is on call for air force safety 
 
         investigations and investigated the August 17, 1984 accident.  He 
 
         admitted, however, that that was his first full accident 
 
         investigation.  He agreed that taildragger and STOL kit flying 
 
         both required more skill and have a much smaller margin of error 
 
         than tricycle flying.  He opined that the nature of decedent's 
 
         August 17, 1984 flight would have improved both his banner towing 
 
         and taildragger flying skills.  He opined that 7.6 hours of 
 
         flight time in thirty days immediately prior to August 17, 1984 
 
         was a very low frequency of flight time for a pilot in a 
 
         demanding aircraft used for banner tows.  He opined that 
 
         decedent's final flight would also have benefited the 170B from a 
 
         maintenance perspective.
 
         
 
              Steven McKeag reported that he had been unable to determine 
 
         the exact altitude of the August 17, 1984 flight.  He reported 
 
         that from the visual stats available, the altitude was from 150 
 
         to 400 feet, however.  He opined that the crash occurred because 
 
         the 170 was being flown at an altitude which did not permit safe 
 
         recovery of the aircraft.  McKeag reported that the flight was 
 
         always within one-fourth mile of the airport.  He reported that 
 
         the recommended altitude for the Mahaska Airport area was 800 
 
         feet, but stated that there was no minimum altitude restriction.  
 
         McKeag stated that test flying following maintenance of the plane 
 
         was common and would have occurred within the airport vicinity.
 
         
 
              Gary McKeag testified that he has been a licensed pilot 
 
         since 1970 and generally agreed that increased flight time 
 
         increases pilot proficiency and that low and slow flying leaves 
 
         little recourse for altitude changes.  He agreed with the above 
 
         stated testimony regarding maintenance benefits from frequent 
 
         flights of a plane.
 
         
 
              Ray Wyland described the banner towing operation stating 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  10
 
         
 
         
 
         that pickup of the banner occurs with the plane's flaps fully 
 
         retracted and that, therefore, the banner tow pickup differs from 
 
         ordinary takeoff and landing maneuvers.  He reported that he was 
 
         primarily in charge of maintenance of the Mahaska Bottling 
 
         Company planes with assistance from decedent.  The Cessna 170B 
 
         had a FFA requirement of 2000 hours of time before overhaul.  
 
         Wyland reported that at 2000 hours the CessnaOs motor was taken 
 
         apart and inspected with needed parts replaced and that between 
 
         2000 hours, the oil was changed and plugs and time mags were 
 
         cleaned.  He agreed generally that increased oil changes are 
 
         necessary with decreased flight and that disc brake and other 
 
         parts wear with decreased flight time.  An increased flight time 
 
         increases air movement through the air frame and thereby 
 
         decreases corrosion in the plane body and moisture in the 
 
         avionics system.  He opined, however, that low, slow flying was 
 
         not good for the plane because decreased engine cooling is 
 
         possible in such flight.  He further opined that there is no 
 
         significant difference in maintenance in a plane flown less than 
 
         20 hours per month and stated decedent never complained about the 
 
         17OB's performance or that flight time in the 170B was 
 
         insufficient for proper air flow through the plane.  Wyland 
 
         stated that aircraft flight logs would reveal the 17OB's test 
 
         flights.  No test flight is recorded for August 17, 1984.  He 
 
         stated it was possible that a test flight of less than ten 
 
         minutes would not be logged.  Wyland stated that a plane might be 
 
         flown after washing but, if so, the flight would be for reasons 
 
         other than to dry the plane.
 
         
 
              Mel Wineger characterized the 170B as in Otip top shape" and 
 
         as having very high quality maintenance prior to August 17, 1984.  
 
         He stated decedent had never indicated either decedent or the 
 
         170B needed increased flight time for pilot proficiency or plane 
 
         maintenance.  Wineger opined decedent was flying at an altitude 
 
         of 100 to 200 feet at the time of the fatal crash.  He reported 
 
         that that altitude was not safe in that it was too low and too 
 
         slow for a hot windy day.  He reported that under such 
 
         conditions, low and slow flight is hard on the aircraft, heats up 
 
         the plane, and prevents sufficient air flow through the plane.  
 
         Wineger opined decedent was not increasing his piloting skills on 
 
         the August 17, 1984 flight and stated there was no evidence 
 
         decedent was performing either a "touch and go" or "stop and go" 
 
         takeoff maneuvers on August 17, 1984.  Wineger indicated it was 
 
         not a standard practice to fly an aircraft after washing to dry 
 
         it.  He agreed decedent commonly tested planes following 
 
         maintenance by flying them about the airport.  Wineger 
 
         characterized the 170B as somewhat distinctive but reported that 
 
         in a banner tow, it would not be recognized from the air.  
 
         Margaret Wineger testified that she knew decedent once took the 
 
         plane up to dry it after washing.  Both Bradley and John Muhl 
 
         testified that one never flies a plane to dry it and that 
 
         decedent was not authorized to fly the 170B for that purpose.
 
         
 
              Jacob Roberts testified that permission was required for 
 
         test flights in that all maintenance had to be cleared through 
 
         corporate executives with permission for a test flight implied in 
 
         permission for performance of the maintenance itself.
 
         
 
              Ronald Pettit testified that Mahaska Bottling Company has a 
 
         $50,000 to $60,000 annual advertising budget and is concerned 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  11
 
         
 
         
 
         with finding means to attract more Pepsi consumers.
 
         
 
              Steven Muhl opined that generally maintenance and operating 
 
         expenses for a plane increased with greater flight time.  He 
 
         stated the 170B costs less to operate because it was flown less 
 
         than other planes.  Muhl stated that airplane maintenance 
 
         schedules are determined by Federal Aviation Association 
 
         regulations and the aircraft type.  He reported that decedent 
 
         never indicated that the 170B was not flown sufficiently or was 
 
         deteriorating from lack of use.  Muhl agreed that the 170B was 
 
         somewhat distinctive and identifiable when on the ground.  He 
 
         reported that the Pepsi logo lettering on the plane was only ten 
 
         to twelve inches high, however.  He agreed that planes are not 
 
         normally flown to dry them after washing.  He further agreed that 
 
         maintenance test flights needed approval in that the maintenance 
 
         itself would need approval.  He agreed that tail dragger and STOL 
 
         kit equipped planes are harder for most people to take off and 
 
         land and require different techniques than do tricycle planes.
 
         
 
              Gloria McKeag testified that decedent had told her he earned 
 
         between $20,000 and $24,000 per year.  The first report of injury 
 
         reflects a gross wage of $490 per week.  Jake Roberts identified 
 
         exhibit C as a recording of decedent's spendable earnings.  The 
 
         exhibit defines spendable earnings as gross pay less federal, 
 
         state, and payroll taxes.  Under the exhibit, decedent's 
 
         spendable earnings in each biweekly period from August 16, 1984 
 
         to May 24, 1984 were $679.36.
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  12
 
         
 
         
 
              Exhibit 7 is decedent's job description as director of 
 
         aviation.  Item 5 of IV, Communications, under the description 
 
         indicates that the director of aviation will communicate with 
 
         corporate officers for the authorization of nonbusiness use, 
 
         including nonbusiness passengers, of the aircraft by anyone.  
 
         Item 12 of V, Job Description, reports that the director of 
 
         aviation is responsible for maintaining the necessary travel 
 
         expense records and for reporting only company business related 
 
         expenses for reimbursement.
 
         
 
              Photos of the 170B in evidence do not indicate that the 
 
         markings of the plane are so distinctive or that the Pepsi logo 
 
         is so obvious that persons viewing the plane from the ground at 
 
         normal flight altitude would recognize it as associated with the 
 
         products of Mahaska Bottling Company.
 
         
 
              Exhibit 6, the article "Good as New," reiterates the 
 
         propositions regarding the benefits of frequent flights on plane 
 
         maintenance elicited in testimony.
 
         
 
              Exhibit D records checks decedent issued to either Pepsi 
 
         Cola or Mahaska Bottling Company.  Exhibit K reports that no 
 
         records exist for checks numbers 4150, 3912, and 3911 in the 
 
         amounts of $257.51, $52.25, and $1,373.99 respectively.  The 
 
         checks there are characterized as reimbursement by Mahaska 
 
         Bottling Company to decedent, for personal expenses paid while 
 
         decedent was out of town for extended periods.  The interrogatory 
 
         indicates that while decedent was away from home over the 
 
         holidays in 1983 and 1984, the company's office staff paid some 
 
         of his personal expenses to avoid past due situations.  It 
 
         reports decedent repaid those amounts with the above enumerated 
 
         checks.  All other checks which decedent issued the company were 
 
         for amounts of $100 or less.  Check number 4150 is dated February 
 
         7, 1984; check number 3912 is dated February 12, 1983; and check 
 
         number 3911 is dated February 12, 1983.
 
         
 
              Exhibit H, a Federal Aviation Administration certificate of 
 
         waiver or authorization for banner towing indicates, under 
 
         special provisions for banner towing, that passenger carrying is 
 
         prohibited except for essential crew members and trainees.
 
         
 
              Exhibit 4, an aircraft hull and liability policy issued by 
 
         the Transport Indemnity Company for the Cessna 170B indicates on 
 
         page 4, under purposes of use that the aircraft will be used for
 
         
 
         Opleasure and business" with the term "pleasure and business" 
 
         defined as personal and pleasure use and use in direct connection 
 
         with the insured's business, excluding any operation for which a 
 
         charge is made.  The aircraft is also stated to be used for 
 
         banner towing.
 
         
 
              The balance of the evidence including aircraft flight logs 
 
         was reviewed and considered in the disposition of this matter.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that decedent received an injury on August 17, 1984 
 
         which arose out of and in the course of his employment.  McDowell 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  13
 
         
 
         
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
              injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
              68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              Section 85.61(6) provides:
 
         
 
                   The words "personal injury arising out of and in the 
 
              course of the employment", shall include injuries to 
 
              employees whose services are being performed on, in, or 
 
              about the premises which are occupied, used, or controlled 
 
              by the employer, and also injuries to those who are engaged 
 
              elsewhere in places where their employer's business requires 
 
              their presence and subjects them to dangers incident to the 
 
              business.
 
         
 
              Our supreme court has stated:
 
         
 
              [a]n injury occurs in the course of the employment when it 
 
              is within the period of employment at a place where the 
 
              employee reasonably may be in performing his duties, and 
 
              while he is fulfilling those duties or engaged in doing 
 
              something incidental thereto.  An injury in the course of 
 
              employment embraces all injuries received while employed in 
 
              furthering the employer's business and injuries received on 
 
              the employer's premises, provided that the employee's 
 
              presence must ordinarily be required at the place of the 
 
              injury, or, if not so required, employee's departure from 
 
              the usual place of employment must not amount to an 
 
              abandonment of employment or be an act wholly foreign to his 
 
              usual work.  An employee does not cease to be in the course 
 
              of his employment merely because he is not actually engaged 
 
              in doing some specifically prescribed task, it, in the 
 
              course of his employment, he does some act which he deems 
 
              necessary for the benefit or interest of his employer ....
 
         
 
                   The test is whether the act is "in any manner dictated 
 
              by the course of employment to further the employer's 
 
              business." ....
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  14
 
         
 
         
 
         
 
                   As a reasonable limitation on the scope of 
 
              employment-related entertainment, "the authority of the 
 
              particular employee to undertake entertainment or 
 
              recreational activities on behalf of his employer must be 
 
              genuine.O 1A A. Larson, Workmen's Compensation S 22.21, at 
 
              5-82 (1978).  Larson states that the factors relevant to a 
 
              determination of the existence of such authority include the 
 
              degree to which the recipient of the entertainment is in a 
 
              position to make decisions that benefit the employer, 
 
              whether authority was actually conferred on the employee to 
 
              engage in the entertainment, and the extent to which the 
 
              employer pays for the cost of the entertainment.  Id. at 
 
              5-82 through 5-83.
 
         
 
              Farmers Elevator Company v. Manning, 286 N.W.2d 174, 177 
 
              (Iowa 1979). (Citations omitted.) (Emphasis is the 
 
              court's.)
 
         
 
              Recreation or social activities are in the course of 
 
         employment when the employer derives substantial direct benefit 
 
         from the activity beyond the intangible value of improvement in 
 
         employee health and morale that is common to all kinds of 
 
         recreation or social life.  1A, Larson, Workmen's Compensation S 
 
         22.
 
         
 
              The Workers' Compensation Act is to be liberally construed 
 
         in favor of the worker, but under some circumstances the worker 
 
         may forfeit his right to benefits by conduct in violation of his 
 
         employer's instructions.  The test is whether the employee was 
 
         doing what a person so employed may reasonably do within the time 
 
         of the employment and at a place he may reasonably be during that 
 
         time.  Buehner v. Hauptly, 161 N.W.2d 170, 172 (Iowa 1968).
 
         
 
              The employee's negligence, of course, of itself is not 
 
         sufficient to result in forfeiture of benefits.  Our court has 
 
         held, however, that an employee who takes himself out of the 
 
         course of his employment by deliberately and unjustifiably going 
 
         into a place where he knows he is positively and invariably 
 
         negligent.  Enfield v. Certain-Teed Products Company, 211 Iowa 
 
         1004, 1015, 233 N.W. 141 (1930).  Similarly, our court has held 
 
         that a carpenter employed in construction of a rain elevator, who 
 
         was repeatedly instructed not to ride a hoist, and who was killed 
 
         while using the hoist to descend from the top of the elevator, 
 
         was at a prohibited place; that is, on the hoist.  Hence, his 
 
         death did not arise out of and in the course of his employment 
 
         and workers' compensation' benefits could not be recovered.  
 
         Buehner at 173.
 
         
 
              In so stating, the court stated:
 
         
 
                   Our decisions--as well as those of other 
 
              jurisdictions--are not completely consistent in dealing with 
 
              so-called violation of instruction cases.  It is sometimes a 
 
              thin line which divides a finding that the ultimate act 
 
              itself is prohibited from one that the act was proper and 
 
              was merely performed contrary to instructions.  In the first 
 
              case compensation is denied; in the second it is paid.  We 
 
              hold a reasonable interpretation of the facts here leads 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  15
 
         
 
         
 
              inevitably to the conclusion decedent was at a prohibited 
 
              place--on the hoist-and was not merely doing a prescribed 
 
              task--getting to the ground from the platform--in a 
 
              proscribed manner.
 
         
 
                   We cannot adopt the argument that once decedent 
 
              rightfully established himself on the elevator platform any 
 
              means of descent could be nothing more than negligence in 
 
              the performance of a service required by, or incidental to, 
 
              his employment.
 
         
 
                   When decedent, in direct violation of his employer's 
 
              orders, left the platform and suspended himself from the 
 
              hoist 70 feet above the ground [sic], he was indeed at a 
 
              place where he was expressly prohibited from being and where 
 
              he could not reasonably be expected to be.  The fatal injury 
 
              resulting therefrom did not arise out of and in the
 
              course of his employment.  (Citations omitted.)
 
         
 
         
 
              Our supreme court expressly overruled the unusual and rash 
 
         act doctrine in Hawk v. Jim Hawk Chev.-Buick, Inc., 282 N.W.2d 
 
         84, 91 (Iowa 1979).
 
         
 
              Additionally, we consider the following:
 
         
 
              We are cognizant of the fact that the compensation law is 
 
              for the benefit of workers and is to be liberally 
 
              administered to that end.  But it must be administered by 
 
              the application of logical and consistent rules or formulas 
 
              notwithstanding its benevolent purpose.  It cannot be made 
 
              to depend on the whim or sympathetic sentiment of the 
 
              current administrator or presiding judge.  We apprehend 
 
              every member of this court is sympathetic to claimant in the 
 
              instant case.  But the compensation statute is not a 
 
              charity.  It is a humanitarian law to be administered, not 
 
              by sympathy, but by logical rules, evolved from the 
 
              determination of many cases under literally countless 
 
              factual variations.  Compensation is to be paid by the 
 
              employer (or his insurer) as a matter of contract, not as a 
 
              gratuity.  It is payable only when the facts show the injury 
 
              is within the contract--that it "arose out of and in the 
 
              course of the contracted employment."
 
         
 
         Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495, 73 
 
         N.W.2d 27 (1955).
 
         
 
              At the onset we do not believe claimant has established that 
 
         his decedent had private use rights in the Cessna 170B or in 
 
         other corporate planes.  While claimant's witnesses credibly 
 
         reported, decedent's private use of the 170B and other aircraft 
 
         that in itself is not sufficient to establish any authorized 
 
         private use.  Even if the testimony of the Muhl family and of 
 
         other corporate officials is not considered, other, more 
 
         objective evidence weighs against decedent having authorized 
 
         private use of the Cessna 170B.  Margaret Wineger, a 
 
         disinterested party, testified John Muhl appeared surprised when 
 
         she told him by telephone of the crash.  He stated decedent had 
 
         no permission to be flying the Cessna 170B.    While Muhl was 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  16
 
         
 
         
 
         then not actually observing the crash, this conversation occurred 
 
         almost immediately after the crash and was Muhl's first knowledge 
 
         of the crash.  Hence, Muhl's assertion that decedent did not have 
 
         permission to fly bears many of the characteristics of an excited 
 
         utterance.  See Iowa Rule of Evidence 803(2) and comments 
 
         thereon, Iowa Code Annotated. 1983 Special Pamphlet.  We believe 
 
         that while John Muhl had not witnessed the crash, simply hearing 
 
         of it in a short telephone conversation with a relative stranger 
 
         was likely sufficient to produce a condition of excitement such 
 
         that Muhl's capacity of reflection was stilled and an utterance 
 
         free of conscious fabrication was produced.  Id.  Therefore, we 
 
         give great weight to Ms. Wineger's testimony that Muhl when 
 
         informed of the crash stated decedent had no permission to be 
 
         flying.  Likewise, decedent's flight logs do not record any 
 
         private use of the Cessna 170B.  We recognize that Steven McKeag 
 
         reported decedent told him decedent was unable to record all 
 
         hours he flew on the Cessna 170B because he would violate FAA 
 
         regulations were he to do so.   We find it unusual that decedent 
 
         would elect always to not log private use had he actual private 
 
         use rights, however.  That election raises questions as to 
 
         whether decedent was attempting to conceal information both from 
 
         the FAA and from his employers.  The election to not log private 
 
         use hours further clouds the issue of decedent's alleged private 
 
         use rights.  Likewise, Mel Wineger testified decedent paid in 
 
         cash for all aviation gas he purchased for private use of 
 
         corporate planes.  That fact, without more, might simply reflect 
 
         decedent's preferred payment method.  When coupled with 
 
         decedent's failure to log private use hours, however, it further 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  17
 
         
 
         
 
         suggests an attempt to conceal the private use from decedent's 
 
         employers.
 
         
 
              In his brief, claimant argues that decedent could not have 
 
         flown planes so openly without defendants' consent or at minimum 
 
         their acquiescence.  Claimant's proposition has some merit.  On 
 
         the other hand, decedent's personal flights were relatively 
 
         infrequent when considered over the course of his entire 
 
         employment with defendants.  Many were relatively brief; many 
 
         occurred either near the airport environment or at locations 
 
         removed from Oskaloosa; many took place at night.  Most did not 
 
         involved passengers who would readily have access to decedent's 
 
         employers or who would readily communicate decedent's activities 
 
         to his employers.  Hence, decedent's private use of corporate 
 
         planes was not as open and notorious as it may appear at first 
 
         blush.  Indeed, the location of the hangar at the Oskaloosa 
 
         airport, some twelve miles from the city of Oskaloosa was such 
 
         that decedent could have flown planes without the permission or 
 
         knowledge of his employers with relative ease and with only 
 
         limited chance of discovery.  We remain unconvinced that this was 
 
         not the case.  Furthermore, decedent's job description explicitly 
 
         states decedent was to obtain permission to fly corporate 
 
         aircraft and to carry nonemployee passengers.  The evidence 
 
         claimant presented was insufficient to show that that explicit 
 
         instruction had been orally modified even as regards the Cessna 
 
         170B.  Indeed, the tone of testimony by several defendant 
 
         witnesses suggested the Cessna 170B enjoyed a special place in 
 
         John Muhl's affections as the oldest corporate plane and as the 
 
         first plane John Muhl had purchased.  That fact again makes it 
 
         unlikely that decedent's employers had granted decedent private 
 
         use rights in the Cessna 170B.  Furthermore, the evidence does 
 
         not show that the costs of operating the Cessna 170B were so 
 
         minimal as to readily permit decedent private use of the plane.  
 
         Aviation gas cost $2.00 per gallon in 1984.  Three to five 
 
         gallons were needed for a one-half hour flight of the Cessna 
 
         170B.  Full maintenance was required after 2000 flight hours.  
 
         Oil and other necessary engine fluids would also be used in 
 
         flight.  The evidence does not show claimant always purchased gas 
 
         before or after private flights or that he in any way reimbursed 
 
         the company for other flight costs related to personal flights. 
 
         (Defendants' contention that the three otherwise unaccounted for 
 
         checks decedent issued defendants related to reimbursement of 
 
         personal expenses the company paid for decedent while decedent 
 
         was working away from home over the Christmas holidays is 
 
         substantiated by the dates on the checks.  Each was issued in 
 
         early February of the year in question.) While decedent's actual 
 
         salary was modest, it appears unlikely his employer would have 
 
         given decedent carte blanche oral permission to operate a 
 
         cost-consuming instrumental at will while expressly forbidding 
 
         such operation in writing.  That such an arrangement would have 
 
         been unusual is supported by the fact that both Sara McKeag and 
 
         Steven McKeag questioned decedent as to his alleged private use 
 
         rights.  We note that a number of claimant's witnesses testified 
 
         that decedent's employers were aware of decedent's private 
 
         flights and spoke with the witnesses regarding those flights or 
 
         were present when the witnesses flew on the plane.  We do not 
 
         doubt the credibility of those witnesses.  We simply do not have 
 
         sufficient understanding of the context in which the alleged 
 
         remarks were made or in which the alleged common flights were 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  18
 
         
 
         
 
         made to believe that those happenings are sufficient to override 
 
         the objective evidence tending to show claimant did not have 
 
         private use rights in the Cessna 170B.  Indeed, preponderance of 
 
         the evidence means greater weight of evidence; that is the 
 
         evidence of superior influence or efficacy.  Bauer v. Reavell, 
 
         219 Iowa 1212, 260 N.W. 39 (1935).  Claimant's burden as to proof 
 
         is not discharged by creating an equipoise.  Volk v. 
 
         International Harvester Co., 252 Iowa 298, 106 N.W.2d 649 1960).  
 
         Claimant at best has created an equipoise.  Hence, his burden of 
 
         showing private use rights is not carried.
 
         
 
              The evidence does show that decedent in his job description 
 
         was required to receive express authorization for any flights.  
 
         In the absence of preponderant evidence showing that his employer 
 
         either overlooked or orally modified that provision, we are 
 
         compelled to find that express authorization was required before 
 
         decedent could use corporate planes.  We note that common sense 
 
         supports that finding in that employers generally do not grant 
 
         their employees free hand use of expensive company equipment.
 
         
 
              Having established that decedent had no private use rights, 
 
         our in the course of issue is narrowed to the question of whether 
 
         an employee who is operating an airplane which is owned by his 
 
         employer and in which the employee has no private use rights can 
 
         be said to be within the period of his employment at a place 
 
         where the employee reasonably may be in performing his duties or 
 
         something incidental thereto while using the plane without the 
 
         employer's express authorization to transport a private citizen 
 
         in order to assist that citizen in searching for a model airplane 
 
         owned by the citizen and in which the employer has no direct 
 
         interest.
 
         
 
              Claimant argues that decedent was in the course of his 
 
         employment because either decedent was flying the plane to dry it 
 
         after washing it or because the employer benefited from 
 
         decedent's use of the plane in the fatal crash.  He first argues 
 
         that the employer benefited because decedent gained greater 
 
         proficiency in flying a difficult plane used for a difficult 
 
         purpose (banner towing) from the final flight.  He next argues 
 
         that the employer received a benefit in that the Cessna 17OB's 
 
         maintenance costs were reduced by frequent flights.  He finally 
 
         argues that the employer received a benefit in that public 
 
         goodwill was furthered by transport of the private citizen to 
 
         search for the model airplane.
 
         
 
              We first consider the drying off question.  The evidence is 
 
         sufficient to establish that decedent had stated he intended to 
 
         wash the Cessna 170B on the afternoon of August 17, 1984.  There 
 
         is no evidence other maintenance of the plane was intended or 
 
         authorized for that afternoon.  There is evidence decedent at 
 
         least on one occasion flew the plane to dry it after washing.  
 
         There is also evidence establishing that flying a plane to dry it 
 
         would not be standard or good practice and that decedent was not 
 
         authorized to fly the plane to dry it.  Assuming that decedent 
 
         did wash the plane and did fly it to dry it, we face the thin 
 
         line which divides a finding that the ultimate act was prohibited 
 
         from one that the act was proper and was merely performed 
 
         contrary to instructions.  We believe the act of flying the 
 
         airplane to dry it was an act itself prohibited.  To paraphrase 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  19
 
         
 
         
 
         the court in Buehner v..Hauptly, we cannot adopt the argument 
 
         that once decedent rightfully washed his employer's plane any 
 
         means of drying the plane could be nothing more than mere 
 
         negligence in the performance of a service required by, or 
 
         incidental to his employment.  When decedent, in direct violation 
 
         of his employer's rules regarding plane usage, flew the plane 
 
         without authorization, he was indeed at a place where he was 
 
         expressly prohibited from being and where he could not reasonably 
 
         be expected to be.  The fatal injury resulting therefrom could 
 
         not arise in the course of decedent's employment as a result of 
 
         flying the plane to dry it.
 
         
 
              We consider the first and second employer benefit arguments 
 
         together.  We again find that the evidence is insufficient to 
 
         clearly show that decedent's piloting proficiency was increased 
 
         by the fatal flight or that engine maintenance was lessened by 
 
         the fatal flight.  Evidence in the record establishes decedent 
 
         himself never expressed concerns as to needing increased flight 
 
         time for his own proficiency or for plane maintenance.  Likewise, 
 
         Mr. Wyland, the corporate airplane mechanic, did not believe 
 
         frequent flying had any significant impact on plane maintenance.  
 
         He further testified that decedent's flying pattern of August 17, 
 
         1984 was not such as would increase decedent's proficiency as a 
 
         banner towing pilot.  Mel Wineger, the fixed base operator and a 
 
         disinterested witness, testified decedent was not increasing his 
 
         piloting skills by maneuvers performed in the fatal flight.  He 
 
         further opined that decedent's August 17, 1984 flight was hard on 
 
         the aircraft in that it was too low and too slow for sufficient 
 
         air flow through the plane on a hot windy day.  Hence, we do not 
 
         believe claimant has established decedent's employer received 
 
         benefits of increased pilot proficiency or decreased plane 
 
         maintenance costs by the August 17, 1984 flight.  Assuming 
 
         arguendo that those benefits had been established, however, we 
 
         again are faced with the fact that nonauthorized use of the plane 
 
         was expressly prohibited.  All parties agree decedent's use of 
 
         August 17, 1984 was not expressly authorized.  We find the 
 
         Buehmer v. Hauptly analysis again fitting.  Decisions as to 
 
         whether the Cessna 170B could or should be flown to increase 
 
         pilot proficiency or decrease plane maintenance were decisions 
 
         the employer and not the employee was authorized to make.  We do 
 
         not believe any benefit from increased proficiency or decreased 
 
         maintenance costs decedent's employers might have received 
 
         through decedent's nonauthorized August 17, 1984 flight was 
 
         sufficient to override the fact that flying the plane without 
 
         authorization was a prohibited act that removed decedent from the 
 
         course of his employment and from the protection of our Workers' 
 
         Compensation Act.
 
         
 
              We consider claimant's last benefit argument, the public 
 
         goodwill argument.  We note that our court has accepted this 
 
         argument and the related employer entertainment argument in 
 
         appropriate cases.  See Yates v. Humphrey, 218 Iowa 792, 255 N.W. 
 
         639 (1234); Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 
 
         174 (Iowa 1979), Danico v. Davenport Chamber of Commerce, 232 
 
         Iowa 318, N.W.2d 619 (1942).  Initially, we note that claimant's 
 
         case does not fall squarely within the bounds of Yates v. 
 
         Humphrey.  Mr. Woodard was not on the employer's property with 
 
         the employer's express authorization nor was Woodard performing a 
 
         service of direct benefit to the employer when decedent assisted 
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  20
 
         
 
         
 
         him.  Hence, we feel claimant's case is more analogous to the 
 
         employee entertainment cases.  We will analyze it in a similar 
 
         manner.  We note the authority of the employee to undertake the 
 
         activity in his employer's behalf must be genuine.  We believe 
 
         that when the factors relevant to that determination are 
 
         considered, claimant does not establish that his decedent had 
 
         such genuine authority.  First, we consider the degree to which 
 
         Woodard as recipient of the model plane search flight was in a 
 
         position to make decisions benefiting Mahaska Bottling Company.  
 
         The evidence demonstrates Woodard's ability to make decisions 
 
         benefiting the employer was limited only to purchasing more soft 
 
         drinks himself and encouraging his acquaintances to purchase more 
 
         and also to encouraging his son, the florist, to deal fairly with 
 
         Mahaska Bottling Company in the son's business transactions with 
 
         the company.  We believe that any benefit the company received 
 
         from the August 17, 1984 flight is far offset by the actual COST 
 
         tO the company if it were to allow members of the general public 
 
         access to its corporate planes.  Thus, that factor mitigates 
 
         against decedent having had genuine authority to undertake the 
 
         August 17, 1984 flight on his employer's behalf.  Likewise, the 
 
         record shows decedent had no express authority to fly the Cessna 
 
         170B on August 17, 1984.  Indeed, decedent was prohibited from 
 
         flying the plane without express authorization and was prohibited 
 
         from flying noncorporate passengers without express 
 
         authorization.  Hence, no authority was actually conferred on 
 
         decedent to fly in search of the model plane.  We believe 
 
         decedent's employer would have paid most costs of the flight but 
 
         for possible aviation gas used.  We believe that fact does not 
 
         act in claimantOs favor, however, in that in this case the cost 
 
         of authorizing the flight must be balanced against the benefit 
 
         the employer received.  As stated, the benefit was too limited to 
 
         confer genuine authority to fly the plane on decedent.  Again, we 
 
         are faced with the fact that decedent was engaged in a prohibited 
 
         act when he flew the Cessna 170B on August 17, 1984.
 
         
 
              We agree that in exceptional circumstances such as those 
 
         Professor Larson discusses in section 17:00 et seq. of his 
 
         treatise cited to above, an employee can exercise independent 
 
         judgment and violate an employer policy or rule because doing so 
 
         actually confers greater benefit on the employer.  We do not find 
 
         the facts in this case are so compelling as to result in that 
 
         finding, however.  We believe that decedent in operating his 
 
         employer's corporate plane without the required express 
 
         authorization was not within the period of employment at a place 
 
         where decedent could reasonably be in performing his duties, and 
 
         while fulfilling those duties as described on his job 
 
         description.  Claimant has not established that decedent's injury 
 
         occurred in the course of his employment.  We note also that the 
 
         cause or source of decedent's fatal injury was not his job duties 
 
         but his personal act of assisting Mr. Woodard without his 
 
         employer's authorization.  Hence, decedent's injury also did not 
 
         arise out of his employment.  Claimant has not prevailed in 
 
         establishing his decedent's injury arose out of and in the course 
 
         of decedent's employment.  Hence, a finding of entitlement to 
 
         death benefits is not possible.  Likewise, we need not decide the 
 
         rate issue.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  21
 
         
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Decedent Marlin McKeag was an employee of defendant Mahaska 
 
         Bottling Company from Sprng 1981 until August 17, 1984.
 
         
 
              DecedentOs designated title with Mahaska Bottling Company 
 
         was Director of Aviation.
 
         
 
              Pursuant to decedent's job description, decedent was   
 
         responsible for communicating with corporate officers for 
 
         authorization of nonbusiness use, including nonbusiness 
 
         passengers, of aircraft by anyone.
 
         
 
              Decedent on occasion flew corporate aircraft with 
 
         nonbusiness passengers for his own purposes.
 
         
 
              Decedent did not log any personal flights in his flight 
 
         logs.
 
         
 
              Decedent paid for aviation gas used for personal flights 
 
         with cash and not with a Mahaska Bottling Company credit card.
 
         
 
              All Mahaska Bottling Company aircraft were housed at the 
 
         Oskaloosa Airport some twelve miles from Oskaloosa.
 
         
 
              Mahaska Bottling Company's plant was located in the city of 
 
         Oskaloosa.
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  22
 
         
 
         
 
              Decedent's private use flights often occurred in the evening 
 
         when other Mahaska Bottling Company employees were not at the 
 
         hangar.
 
         
 
              Decedent's private use flights often were in the immediate 
 
         vicinity of the Oskaloosa Airport or were away from the Oskaloosa 
 
         environs.
 
         
 
              Decedent's private use flights were often quite brief.
 
         
 
              Decedent's private use flights generally did not involve
 
         passengers who would or could readily communicate decedent's use 
 
         of corporate aircraft to decedent's employers.
 
         
 
              Aircraft, including smaller aircraft such as the Cessna 
 
         170B, are costly to operate.
 
         
 
              The Cessna 170A was Mahaska Bottling Company's oldest 
 
         corporate plane and had been the first plane which Mahaska 
 
         Bottling Company President John Muhl had purchased.
 
         
 
              John Muhl was surprised on August 17, 1984 when informed of 
 
         decedent's accident and then stated decedent did not have 
 
         permission to fly the Cessna 170B.
 
         
 
              Decedent had no private use rights in the Cessna 170B or in 
 
         other corporate aircraft.
 
         
 
              Mahaska Bottling Company officials did not authorize 
 
         decedent to fly the Cessna 170B on the afternoon of August 17, 
 
         1984.
 
         
 
              Decedent's flight of that afternoon was a prohibited act.
 
         
 
         
 
         
 
              On August 17, 1984, decedent flew the Cessna 170B with a 
 
         private passenger to search for a model airplane the passenger ad 
 
         lost.
 
         
 
              Mahaska Bottling Company had no direct interest in the model 
 
         airplane.
 
         
 
              The passenger was a member of the general public.
 
         
 
              The passenger's son was a local florist from whom Mahaska 
 
         Bottling Company occasionally purchased arrangements.
 
         
 
              The passenger and his acquaintances might have been induced 
 
         to drink Mahaska Bottling Company products through the August 17, 
 
         1984 flight.
 
         
 
              The passengerOs son might have been induced to deal more 
 
         fairly with Mahaska Bottling Company in his business dealings 
 
         with the company through the August 17, 1984 flight.
 
         
 
              Mahaska Bottling Company had not otherwise permitted use of 
 
         company planes for the private purposes of the general public.
 
         
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  23
 
         
 
         
 
              Any benefit conferred on Mahaska Bottling Company by the 
 
         August 17, 1984 flight was minimal and not sufficient to override 
 
         the costs of the flight.
 
         
 
              Decedent had no authority to undertake the August 17, 1984 
 
         flight on Mahaska Bottling Company's behalf.
 
         
 
              The Cessna 170A was a well maintained aircraft.
 
         
 
              Decedent's proficiency in flying maneuvers required of him 
 
         in the Cessna 170A was sufficient and decedent never complained 
 
         of needing more flight time in order to increase his 
 
         proficiency.
 
         
 
              Decedent's low and slow flight of August 17, 1984 in 95 
 
         degree weather in a strong wind potentially neither increased his 
 
         proficiency or decreased plane maintenance.
 
         
 
              Mahaska Bottling Company received no benefit by way of 
 
         increased pilot proficiency or decreased plane maintenance 
 
         sufficient to override the fact that the flight was nonauthorized 
 
         and, therefore, a prohibited act in violation of the employer's 
 
         expressed rules.
 
         
 
              It is not established that decedent washed the plane on 
 
         August 17, 1984.
 
         
 
              Flying a plane to dry it after washing is not standard 
 
         practice.
 
         
 
              Flying the plane to dry it after washing was a prohibited 
 
         act.
 
         
 
              Other plane maintenance was neither scheduled or authorized 
 
         on August 17, 1984.
 
         
 
              December was not within the period of his employment at a 
 
         place where decedent could reasonably be in performing his 
 
         duties, and while performing those duties or something incidental 
 
         to them while flying the Cessna 170B with a nonbusiness passenger 
 
         on August 17, 1984.
 
         
 
              The cause or source of decedent's August 17, 1984 fatal 
 
         crash was decedent's personal act of assisting a member of the 
 
         general public without his employer's authorization and in 
 
         express violation of his employer's rule regarding nonbusiness 
 
         use of corporate aircraft.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established that claimant's decedent's
 
         August 17, 1984 injury arose out of and in the course of 
 
         decedent's employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 

 
         
 
         
 
         
 
         McKEAG V. MAHASKA BOTTLING COMPANY
 
         Page  24
 
         
 
         
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant and defendant pay equally the cost of this 
 
         proceeding pursuant to Division of Industrial Services Rule 
 
         343-4.33, formerly Industrial Commissioner Rule 500-4.33.
 
         
 
              Signed and filed this 3rd day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             HELEN JEAN WALLESER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Donald J. Charnetski
 
         Attorney at Law
 
         P.O. Box 230
 
         815 Fifth Avenue
 
         Grinnell, Iowa 50112
 
         
 
         
 
         Mr. Jack W. Rogers
 
         Attorney at Law
 
         1040 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1100; 1111
 
                                                      Filed 3-3-87
 
                                                      Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         MICHAEL S. McKEAG, a Minor,
 
         by GLORIA J. McKEAG,
 
         Guardian/Conservator,
 
         
 
              Claimant,                                 File No. 771096
 
          
 
          VS.                                            D E C I S I 0 N
 
          
 
          MAHASKA BOTTLING COMPANY,                            O N
 
          
 
              Employer,                                    D E A T H
 
          
 
          and                                           B E N E F I T S
 
          
 
          GREAT AMERICAN INSURANCE
 
          COMPANIES,
 
          
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1100; 1111
 
         
 
              Pilot killed in crash of corporate plane during 
 
         nonauthorized flight found not to have sustained injury which 
 
         arose out of and in the course of his employment.