Hill City Trucking v. Christian, 1224-86-3

• Decision Date: 06 September 1988
• Docket Number: No. 1224-86-3,1224-86-3
• Parties: HILL CITY TRUCKING, et al. v. Michael Lewis CHRISTIAN. Record
• Court: Virginia Court of Appeals

Page 575

371 S.E.2d 575

7 Va.App. 78

HILL CITY TRUCKING, et al. v. Michael Lewis CHRISTIAN.

Record No. 1224-86-3.

Court of Appeals of Virginia.

Sept. 6, 1988.

M. Lanier Woodrum (Robert Jett Ingram, Jr.; Fox, Wooten & Hart, P.C., Roanoke, on brief), for appellant.

Peter O. Ward, Jr., Washington, D.C., on brief for appellee.

Present: KOONTZ, C.J. and BAKER, BARROW, BENTON, COLE, COLEMAN, KEENAN and MOON, JJ.

MOON, Judge.

Hill City Trucking, Inc., seeks reversal of an Industrial Commission award providing benefits to Michael Lewis Christian who sustained injuries when he was shot and robbed during the course of his employment. ¹ Hill City argues that the injury did not arise out of Christian's employment. ² We disagree and affirm the award.

Christian was a long distance truck driver, employed by Hill City of Lynchburg, Virginia. He had hauled loads to the West coast for more than thirteen years. In the early morning of October 16, 1984, while traveling back from California to Maryland, he stopped at a truck stop on Interstate Highway 40 in Tennessee to eat and buy fuel. Before leaving he cashed a wire transfer of $1,000 he received for his operating expenses. He paid $425 for the fuel and left the truck stop with $575 cash. He travelled twenty miles east and at approximately 3:00 a.m., noticed what he thought was a police car with blue flashing lights behind him. He pulled over, climbed down from the truck and walked towards the car. Two men carrying pistols confronted him and demanded his money. He threw his wallet on the ground and backed away. After taking Christian's money and wallet, the men shot Christian and fled. Christian sustained serious injuries which required medical treatment and prevented him from working. He subsequently filed a timely application for workers' compensation benefits.

Whether an injury "arose out of" the employment within the meaning of Code § 65.1-7 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). The question presented asks whether Christian's employment exposed him to the risk of being injured as the result of a robbery. Immer & Co. v. Brosnahan, 207 Va. 720, 723, 152 S.E.2d 254, 257 (1967).

The commission found that it is generally known that long distance truck drivers carry money with which to pay their expenses during a trip. Whether truck drivers generally carry money may be, as appellants argue, a matter of supposition. However, it is highly unlikely that a truck driver miles from home will not have cash or other valuables either in his possession or on the truck. Individuals may travel from one state to another in private vehicles just to transport themselves without carrying valuable property. However, tractor trailer rigs are normally used to haul property, not solely to carry the driver. It is apodictic that persons who haul property vulnerable to asportation are subject to robbery. Thus, the question is not whether, in fact, more truck drivers carry credit cards or cash, but whether driving a tractor trailer truck subjects one to the chance of being robbed. Obviously, a truck driver must have some means of paying his way. Christian's work required him to be on dark roads, late at night in unfamiliar surroundings. After considering all the facts and circumstances, we believe that the commission correctly found that robbery was a risk of Christian's employment.

An injury arises out of the employment if the accident appears to have had its "origin in a risk connected with [the] employment, and flowed from that source as a rational consequence." Id. at 723, 152 S.E.2d at 257 (quoting Bettasso v. Snow-Hill Coal Corp., 135 Ind. App. 396, 401, 189 N.E.2d 833, 836 (1963)). Under this rule described as the "actual risk test":

It is not necessary ... that the employee show that his presence on the street or highway where his ... injuries are suffered exposes him to an increased hazard peculiar to the work and not common to the public generally ...; "it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street, whether continuously or infrequently."

Id. 207 Va. at 725, 152 S.E.2d at 257 (1967) (quoting 1 A. Larson, Workmen's Compensation Law § 9.10 (1964)) (emphasis added). In Park Oil Co. v. Parham, 1 Va.App. 166, 336 S.E.2d 531 (1985), we upheld the award of benefits to a service station employee who was injured when a truck hit him during the course of his employment. We applied the actual risk test and asserted, "The test ... is not that other persons are exposed to similar risks, but rather that the employment exposes the workman to the particular danger in the street." Id. at 169, 336 S.E.2d at 533 (quoting Immer, 207 Va. at 725, 152 S.E.2d at 257).

In R & T Investments v. Johns, 228 Va. 249, 321 S.E.2d 287 (1984) our Supreme

Court relied upon Professor Larson and opined "that among the occupations that have, for obvious reasons, been held to subject the employee to a special risk of assault and increased likelihood of robbery are those jobs that involve carrying money or that entail the handling of money." Id. at 253, 321 S.E.2d at 289. Christian need not show that he was subject to a special risk, but only that his employment subjected him to the risk of the robbery which resulted in his injuries. Immer, 207 Va. at 725, 152 S.E.2d at 257.

Hill City argues that the evidence did not show that Christian's employment attracted the robbers to him. The assault, according to the employer, could have occurred if Christian were in his own personal car. A similar argument was made and rejected in Continental Life Ins. Co. v. Gough, 161 Va. 755, 172 S.E. 264 (1934). Gough, an insurance agent, picked up two hitchhikers in his personally owned automobile while on his route. One of them attacked him with an ax, and Gough sustained serious injuries while driving. A collision prevented the assailants from completing their robbery. The robbers claimed that they were only after the car for the purpose of "joy riding."

The Court, after making light of the assailants' claim that they would not have taken Gough's insurance collection money, asserted:

At the time of the assault, claimant was performing the duties of his employment in a place he was required to be; he was using means of transportation for which the cost was paid by his employer, and even if the motive for the assault was to deprive him of this means of transportation, the assault was not personal to the employee, but arose out of the employment.

Id. at 763, 172 S.E. at 267. The Gough court further noted that "[i]njury caused by assault for the purpose of robbery is a hazard or risk to which collectors, paymasters, watchmen, etc. are exposed because of the nature of their duties." Id. at 761, 176 S.E. at 266. However, the opinion did not limit recovery only to high profile cash carriers. ³

The case of Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958) provides further guidance in determining the meaning of "arising out of" the employment. Alvis, a truck driver, fell to his death from the third story window of the hotel where he slept while away from home on his employer's business. The Court noted that because the safety of Alvis and his cargo demanded that he be rested and alert, the employer had provided him a hotel room in which to sleep. Considering whether Alvis' death arose out of his employment, the Court reasoned:

The words "arising out of" mean there must be a reasonable causal connection between the employee's work and the resultant injury or death. A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his contract of service.

Id. at 171, 104 S.E.2d at 738. The Court found under the facts in Alvis that the accident arose out of the employment.

Repeated judicial pronouncements have confirmed that Virginia employs the actual risk test to determine whether an injury arises out of the employment. Olsten of Richmond v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985); GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 605, n. 3, 272 S.E.2d 200, 204, n. 3 (1980); Johnson v. Chesterfield County, 5 Va.App. 15, 19, 359 S.E.2d 833, 835 (1987). Pursuant to the actual risk test, an employee must simply show that his injury resulted as a direct consequence of his employment. We recognize that the conflicting language of previous decisions has given employers grounds to argue that the danger which harms the employee must be "peculiar" or "special" to the employment. In Immer, the Court sought to place this contention in the proper perspective when it explained:

While, as the employer in the instant case points out, the opinion [in Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962) ] states, "the causative danger must be peculiar to the work and not common to the neighborhood," that statement cannot be read out of context with the rest of the opinion. In the same paragraph in which the statement is found, it is recognized that an injury is compensable if it appears "to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

Immer, 207 Va. at 726, 152 S.E.2d at 257-58. Hence, we believe that an injury which is reasonably connected with, and flows from the employment, is compensable.

Nevertheless, even after the clarification in Brosnahan, confusion may still arise over the actual risk test's meaning and application. For example, in Metcalf v. A.M. Express Moving Systems, 230 Va. 464, 339 S.E.2d 177 (1986), the Court offered as part of its test for an accident arising out of the employment, the quote that: "The causative danger must be peculiar to the work and not common to the neighborhood." Id. at 468, 339 S.E.2d at 180. Concurrently, the court asserted: "An accident...