Baggett Transp. Co. of Birmingham, Ala. v. Dillon

Decision Date22 November 1978
Docket Number780436,Nos. 780455,s. 780455
Citation248 S.E.2d 819,219 Va. 633
CourtVirginia Supreme Court

Anthony F. Troy, Richmond (Andrew P. Miller, Stephen W. Brewer, Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellant in 780455.

Kendall O. Clay, Radford, for appellees in both cases.

Jerry K. Jebo, Stephen D. Rosenthal, Radford (Jebo & Rosenthal, Radford, on briefs), for appellant in 780436.


COMPTON, Justice.

The dispositive question in this appeal of a workmen's compensation case is whether the employee's death arose out of his employment.

Appellee Dixie E. Dillon applied to the Industrial Commission for benefits for herself and two minor children, following the death of her husband, Bobby Millard Dillon, on February 19, 1977 in Rockbridge County. Named as Dillon's employers were appellants Baggett Transportation Company of Birmingham, Alabama and Dick Meador Trucking Company, Inc. Following an August 1977 hearing, a deputy commissioner entered an award of compensation against Meador only. After taking additional evidence, the full Commission sustained the award but held both Meador and Baggett liable to the claimants. We granted the defendants separate appeals from the March 1978 final award.

The facts are uncontradicted. Baggett is an interstate general commodity carrier. Meador is an independent carrier which leases trucks with drivers to other carriers. On the day of his death, a Saturday, Dillon had been operating a Meador tractor-trailer unit leased to Baggett and he was engaged in hauling a load of explosives from Martinsburg, West Virginia, to a destination in Arkansas. As Dillon drove south through Virginia on Interstate Highway 81, his co-driver, Kenneth Farris, was asleep in the overnight compartment of the tractor. Sometime between 4:30 p. m. and 5:30 p. m., Dillon parked the vehicle headed in a southerly direction adjacent to the highway near an exit ramp leading from a temporarily closed public rest area north of Lexington. While the reason for stopping at that location is unknown, the evidence indicates that Dillon may have intended to add oil to the motor of the tractor.

Upon awakening at about 5:30 p. m., Farris discovered Dillon's body, approximately four feet from the truck, lying face up on the right side of the unit between the truck and the west ditch line. Dillon had been killed by a single .22-long caliber bullet which struck him in the chest. There were no known witnesses to the incident.

Investigation by the Virginia State Police showed there had been no attempt to hijack the truck or its cargo or to rob either Dillon or Farris. Metal seals on the rear doors of the trailer were intact after the incident. The investigation further disclosed that other shooting incidents had occurred at or near the rest area. During the weekend of Dillon's death, another .22-long caliber bullet had been fired into the rear window of the rest area building. Impact of the bullet with the interior of the brick building prevented an accurate comparison of that bullet with the bullet which killed Dillon. On another occasion, about five years earlier, another .22-caliber bullet had been fired into a roof over a picnic table at the area, had ricocheted and had struck a traveler's foot.

At the time of the hearing, the police suspected that the assailant was a person who lived in the vicinity of the rest area and who had permission to hunt in a field near the scene, but there was insufficient evidence available to make an arrest.

Under the Workmen's Compensation Act (Act), for an injury to be compensable, the claimant must show that the injury was the result of an " accident," that it "arose out of" the employment and that it occurred "in the course of" the employment. Code § 65.1-7. The Commission found that these three elements had been established by the evidence in this case. On appeal, defendants concede that Dillon's death was an accident and that it occurred in the course of his employment as a truck driver. They maintain, however, that the death did not "arise out of" the employment.

The claimants contend, relying as did the Commission on Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), that the Commission correctly determined that Dillon's death arose out of his employment. We disagree.

The finding that a death "arose out of" the employment, within the meaning of the Act, is a mixed conclusion of law and fact properly reviewable by this court. Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393, 395 (1962). Accordingly, we must determine whether the Commission's findings from the facts presented are sufficient in law to justify the award of compensation on the ground that the accident not only happened during the course of employment but also arose out of it. Id., 123 S.E.2d at 395-96.

The following principles pertinent to the issue before us are elementary. The statutory language, "arising out of and in the course of the employment", should be liberally construed to carry out the humane and beneficial purposes of the Act. The duty to liberally construe the Act does not, however, authorize the amendment, alteration or extension of its provisions. The expressions "arising out of" and "in the course of" are not synonymous and are used conjunctively; both conditions must be present before compensation will be awarded and the burden is on the claimant to prove them by a preponderance of the evidence.

The words "arising out of", as used in the Act, refer to the origin or cause of the injury while the phrase "in the course of" pertains to the time, place and circumstances under which the accident occurred. An accident occurs during the course of the employment if it takes place within the period of employment, at a place where the employee may reasonably be expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.

An injury arises out of the employment " 'when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.' " Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938), quoting In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913).

But the fact that the accident happens along a public highway, and that the danger is one to which the general public is likewise exposed, is not conclusive against the existence of such causal relationship, unless the danger be one to which the employee, by reason of and in connection with his employment, is not subjected peculiarly or to an abnormal degree. Honaker v. Hartley, 140 Va. 1, 11, 124 S.E. 220, 222 (1924).

Against the background of these settled rules, we turn to the pivotal question raised by this set of facts: Does the presumption of Southern Motor Lines v. Alvis, supra, which had been earlier set forth in Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504 (1938), apply?

In Alvis, a truck driver employed in long distance hauling by Southern Motor Lines Company of Richmond, died by accident in the course of his employment when he fell from a hotel window in Columbus, Georgia. The facts showed that the duties of this employment required him to be in that city at the time and required him to remain there over two nights. As was customary, he telephoned his employer upon his arrival at the hotel and expense money was wired to him there. He was seen by hotel employees several times during the second day of his stay and was last seen by the night clerk on the evening of that day when he paid for his lodging. On the next day, the hotel manager entered Alvis' locked third floor room after first working out of the keyhole a key that had been inserted from inside the room. Alvis' personal belongings were in the room. A window screen had been removed and placed against the wall. The screen bore evidence of having pried at one corner. The record disclosed that the night before had been extremely warm and that the hotel guests customarily removed the screens to admit more air. The manager replaced the screen in the window, which overlooked a narrow light well some four feet wide. More than four days later, the body of Alvis was discovered in the light well beneath the window of the room which he had occupied. The coroner reported that death was caused by a major concussion to the back of the head caused by an accidental fall from the third story window. There was evidence negating an inference that Alvis had committed suicide.

This court affirmed the Commission's award of compensation, holding that the death arose out of the employment. The court observed that the nature of Alvis' employment required him to be away from home and...

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