Graybeal v. Board of Sup'rs of Montgomery County
| Decision Date | 13 June 1975 |
| Docket Number | No. 741026,741026 |
| Citation | 216 S.E.2d 52,216 Va. 77 |
| Parties | John Patrick GRAYBEAL v. BOARD OF SUPERVISORS OF MONTGOMERY COUNTY. Record |
| Court | Virginia Supreme Court |
John B. Spiers, Jr., Radford, for appellant.
Andrew P. Miller, Atty. Gen., James E. Kulp, Asst. Atty. Gen., on Amicus curiae brief for Commonwealth of Virginia.
No brief filed or oral argument on behalf of appellee.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this workman's compensation case, an exploding bomb injured the claimant-employee on his residence premises at night. Although finding that the claimant's injuries arose out of his employment, the Industrial Commission, with Commissioner Miller dissenting, denied compensation because the injuries did not arise in the course of employment. The claimant seeks reversal of the denial of compensation.
The claimant, John Patrick Graybeal, is Commonwealth's Attorney for Montgomery County. In April, 1968, in the course of his duties, he prosecuted Frank H. Dewease, Jr., for murder. As a result, Dewease was convicted of murder of the second degree and sentenced to serve 20 years in the penitentiary.
Thereafter, Dewease vowed revenge upon 'everyone having anything to do' with his case and he expressed his desire 'to get them all in the courthouse and blow it up.' He especially 'seemed to want to kill' the claimant. While in prison, Dewease bragged of his knowledge of bomb construction and of his ability to 'get dynamite and caps after he got out.'
Shortly after his release from prison, Dewease, on the night of December 4, 1973, went to the claimant's home in Christiansburg. There, he placed on the top of the claimant's family automobile, which was parked in the driveway, a 'potato chip can' containing a homemade bomb.
On that same evening, the claimant worked in his office at the courthouse preparing for the next day's trial of Commonwealth cases. Completing his work at approximately 11:30 p.m., he drove home in a borrowed automobile. Upon arrival at home, he observed the can on the top of the family car. Believing the can was a toy or an item of groceries, he picked it up. The device exploded, causing the severe and disabling injuries upon which the present claim for compensation is based.
Code § 65.1--7, part of the Virginia Workmen's Compensation Act, defines a compensable accidental injury as one 'arising out of and in the course of the employment.' We have said that the expressions 'arising out of' and 'in the course of' are used conjunctively and are not synonymous. Both conditions must be satisfied before compensation can be awarded. Southern Motor Lines v. Alvis, 200 Va. 168, 170, 104 S.E.2d 735, 737 (1958); Dreyfus & Co. v. Meade, 142 Va. 567, 569, 129 S.E. 336 (1925).
As has been noted, the Commission found that the claimant's injuries arose out of his employment. On appeal, that finding is conclusive. Whether the injuries arose in the course of employment is the sole, and novel, question for decision.
In holding that the claimant's injury did not arise in the course of his employment, the Commission relied upon our decision in Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962). There, we said:
'(T)he words 'in the course of' refer to the time, place and circumstances under which the accident occurred.
'(A)n accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.' 203 Va. at 208, 123 S.E.2d at 396.
Tested by this seemingly rigid rule, the claimant's case might fail. Conner equates 'arising' with 'occurring.' The express requirement that the injury must Occur within the specified time, space, and circumstances of the employment would appear well-nigh insurmountable in the present case.
But the Conner rule was enunciated in and designed for application to a case involving the usual employer-employee relationship and the typical industrial...
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