Grand Union Co. v. Bynum, 821420

Citation226 Va. 140, 307 S.E.2d 456
Case DateSeptember 09, 1983
CourtSupreme Court of Virginia

Anthony M. Thiel, Norfolk (Willcox, Savage, Dickson, Hollis & Eley, P.C., Norfolk, on brief), for appellant.

Robert Frank, Norfolk (Robert Epstein & Associates, Norfolk, on brief), for appellees.


RUSSELL, Justice.

In this appeal from an award of death benefits by the Industrial Commission, the sole question is whether claimants' decedent died "in the course of the employment," a prerequisite for compensation under Code § 65.1-7. The appellant employer concedes that decedent's death "arose out of the employment" and was the result of an "accident," thus meeting the remaining two statutory tests of compensability.

The deceased, Ronnie M. Bynum, was manager of the Big Star Supermarket, owned by Grand Union Company, on Wickham Avenue in the City of Newport News. He lived with his family in the City of Chesapeake and commuted to work daily.

After the close of business at 7:00 p.m. on March 8, 1981, Bynum remained in the store for nearly an hour to admit some workmen. After calling his wife to tell her that he would be home soon, he drove a fellow employee, Elmore Hall, home and then stopped at the home of a friend, Jerry Sheridan. Bynum parked his car in Sheridan's driveway and entered the Sheridan home where the two men visited for a time. Sheridan was not employed by Grand Union. While there, Bynum called Frieda Barner, a fellow employee who lived nearby, and suggested that she meet him. She agreed to meet him in ten minutes. Although she was a fellow employee, Bynum's plan to see her was entirely social that evening. She testified that they were social friends and would occasionally ride around together and talk. Bynum carried the keys to the store with him at the time, as he did every evening after closing, but there is no indication in the evidence that he intended to perform any further work-related duties that day, or that any such activities were expected of him.

Bynum left Sheridan's house and reentered his car in the driveway. Before he could start it, he was approached by Elbert P. Watson, who had been waiting with two accomplices in a parked car nearby. Watson shot Bynum fatally through the car window with a .38 caliber pistol, took the supermarket keys from the dashboard, and picked up two medicine bottles which he thought might contain drugs.

Watson, who has been convicted of Bynum's murder, gave a written statement which was admitted into evidence and also testified before the deputy commissioner. He stated that he and his accomplices were looking for money to buy drugs. They parked outside the Big Star, planning a robbery, but decided to wait until Bynum, whom they knew to be the manager, emerged after closing time. They planned to force him at gunpoint to reenter the store and open the safe. When Bynum emerged with Hall, they followed him, watched him drop Hall off, and then waited for him to emerge from Sheridan's house. They hoped to find drugs on Bynum's person or in his car and to obtain access to the store by means of his keys. Watson testified that the actual shooting was accidental, caused by Bynum's attempt to slam the car door on Watson's hand which held the pistol. They found no drugs, left Bynum's body in his car, returned to the store, entered it with Bynum's keys, and found $166.00 which they used to buy drugs.

The deputy commissioner found that Bynum died "in the course of" his employment and awarded death benefits to his dependents. The award was affirmed by the full commission on the basis of Graybeal v. Montgomery County, 216 Va. 77, 216 S.E.2d 52 (1975). The employer appeals.

In Graybeal, the Commonwealth's Attorney of Montgomery County was severely injured by the explosion of a bomb placed on his car by a vengeful criminal he had prosecuted. The explosion occurred in the driveway of his home after he had driven home from his office in the courthouse. He had worked there until 11:30 p.m. in preparation for the next day's trial. He had no fixed hours of employment and no identifiable workplace. His public duties required him to exercise his authority at any place within his jurisdiction, including his home, at any hour of the day or night. His exposure to the risk of injury by a vengeful criminal was unlimited as to time or place. We adopted a special rule, limited in application to such atypical situations, to recognize the realities of such a case.

We restated the fundamental applicable principles in Baggett & Meador Cos. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978):

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 the 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.

Unlike the public officer in Graybeal, Bynum had an identifiable place of employment and identifiable work hours. His duties might require occasional departure or deviation from them, but there is no evidence that he was so engaged at the time of his death. Rather, the evidence points to a time after he had completed his work for the day, was engaged in a series of social visits, and was neither "at a place where the employee may reasonably be expected to be" nor "reasonably fulfilling the duties of his employment."

It is true, as claimant argues, that the murderer's motive was directly related to Bynum's employment as a store manager and that Bynum would not have been stalked and assaulted if he had not held that position. That evidence, however, tends only to prove causation. It satisfies the "arising out of the employment" requirement, which the employer concedes, but does not go to the dispositive question here.

In Graybeal, we held, in the context of the atypical circumstances of a public officer's employment, that the "in the course of" requirement could be met by "a showing of an unbroken course beginning with work and ending with injury under such circumstances that the beginning and the end are connected parts of a single work-related incident." 216 Va. at 80, 216 S.E.2d at 54. But as we pointed out in Graybeal, those circumstances were based upon the premise that the Commonwealth's Attorney's duties were performed at no fixed time or location, and that it would have been immaterial to his claim whether he were injured at his home, his office, or the courtroom. An extension of the Graybeal rule to typical employer-employee relationships would include within the "course of the employment" requirement all workers who are homeward bound after the end of the working day. * We are unwilling so to extend the coverage of the Act.

Finding that Bynum did not die in the course of his employment, we will reverse the award made by the Commission and enter final judgment dismissing the claimants' application.

Reversed and final judgment.

THOMAS, J., dissenting.

THOMAS, Justice, dissenting.

I dissent. In this case, a band of would-be criminals waited outside a Big Star store for several hours formulating a plan to rob the store. They decided to wait until the store closed then seize the decedent, whom they knew to be the store manager in possession of its keys, and force him to reopen the store so they could rob it. Their original plan was thwarted when Bynum left the store in the company of another employee. Apparently unwilling to attack two people, the would-be attackers followed Bynum in their car, waiting to catch him alone. They watched Bynum drop off his fellow employee but they did not attack him immediately. They continued to stalk him, waiting for a better opportunity to attack. They followed him to the home of one of his friends, they watched him go inside, and they waited for him to return to his car.

Bynum visited with his friend for a short time then returned to his car alone. This was the moment for which Bynum's assailants had waited. They seized the opportunity and accosted Bynum as he tried to get into his car. They demanded the keys to the store and any drugs in Bynum's possession. Bynum resisted: he tried to slam the car door. His assailants shot through the car's window and killed Bynum. They then snatched the keys to the store as they had planned to do all along. They also stole some medicine vials in Bynum's possession in hopes that the vials contained drugs. They left Bynum at the murder scene, drove back to the Big Star store, used the stolen keys to open the door, and robbed the store.

Even the majority admits that had Bynum not been the manager of the store he would not have been stalked and killed. In other words, Bynum is dead today because as a Big Star manager he had the keys to the store that his assailants wanted to rob. Yet, my Brothers in the majority have ruled that Bynum's beneficiaries are not entitled to a recovery under the Act. The result reached by the majority is shocking: it is based upon a case that does not apply to the issue raised here; it attempts to circumvent the only case that applies directly to this problem; it ignores the purposes announced in the Act and confirmed in our cases; and it works an injustice.

The sole issue raised in this...

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