R & T Investments, Ltd. v. Johns

• Decision Date: 12 October 1984
• Docket Number: No. 831442,831442
• Citation: 321 S.E.2d 287,228 Va. 249
• Court: Virginia Supreme Court
• Parties: R & T INVESTMENTS, LTD., et al. v. Gladys May JOHNS. Record

Page 287

321 S.E.2d 287

228 Va. 249

R & T INVESTMENTS, LTD., et al. v. Gladys May JOHNS.

Record No. 831442.

Supreme Court of Virginia.

Oct. 12, 1984.

J. Alvernon Smith, Jr., Richmond (Samuel Baronian, Jr., Smith, Blank, Isaacs & Hinton, Richmond, on brief), for appellants.

Milton P. Miller, Richmond, for appellee.

Present: All the Justices.

COMPTON, Justice.

In order to establish a compensable injury under the Workers' Compensation Act, a claimant must show that the injury was the result of an accident "arising out of and in the course of the employment...." Code § 65.1-7. The sole question in this appeal is whether the injury arose out of the employment.

On December 15, 1981, appellee Gladys May Johns was injured during a bank robbery in Richmond. At the time, the claimant, age 64, was employed by appellant R & T Investments, Inc., trading as Capitol Coin Shop. The employer was in the business of buying precious metals.

The claimant's duties involved work inside and outside the employer's shop. She purchased gold and silver from customers who came to the store. In addition, she "would go to the bank and make deposits" and carry gold to the "melter." She testified that she "was more like a runner" and that she would "do anything, go anywhere for them."

On the day in question, about 1:45 p.m., the claimant, as part of her duties, walked to a branch bank located in a shopping center several blocks from her place of employment. She was carrying $1,800.00 of her employer's funds in cash and intended to deposit the money to the credit of the employer's account. She was not on any business of her own at the time; she personally dealt with another bank. She was not wearing a uniform. The evidence does not indicate that she was carrying the money in a container with any special markings that would identify the money or identify her as an employee of Capitol Coin Shop.

While the claimant was standing inside the bank in a line of customers at a teller's window, three armed, masked men suddenly entered the bank. One of the robbers ordered everyone to "hit the floor." At that time, one of the men placed a sawed-off shotgun to the back of the claimant's neck, and the employer's money was taken from the claimant's hand. The claimant dropped to the floor. As a result, she suffered injury to her back, which gave rise to the instant claim.

Following a hearing, a deputy commissioner determined that the claimant had borne the burden of proving a "job-related occurrence" within the meaning of Code § 65.1-7 and entered an award of compensation. Upon review, the full Commission unanimously agreed with this finding. We granted the employer and its insurance carrier an appeal to the August 1983 final award.

On appeal, the employer and its carrier (collectively, the employer) agree that an "accident" occurred "in the course of" the claimant's employment. The employer contends, however, that the claimant failed to prove that her injury arose out of the employment.

The phrases "arising out of" and "in the course of" the employment are not synonymous, and the claimant must establish both conditions by a preponderance of the evidence before compensation will be awarded. Baggett & Meador Cos. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978). The words "arising out of," as used in Code § 65.1-7, refer to the origin or cause of the injury while the language "in the course of" pertains to the time, place, and circumstances under which the accident occurred. Id., 248 S.E.2d at 822. An accident occurs during "the course of" the employment if it happens within the period of employment, at a place where the employee may reasonably be expected to be, and while she is reasonably fulfilling the duties of her employment, or is performing a task that is reasonably incidental thereto. Id., 248 S.E.2d at 822.

An accident arises out of the employment if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed. In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913). Quoting In re McNicol, we have said: " '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 workmen 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).

The mere fact that the hazard is one to which the general public likewise is exposed is not, however, conclusive against the existence of such causal relationship. Honaker v. Hartley, 140 Va. 1, 11, 124 S.E. 220, 222 (1924). The requisite nexus in an assault case is supplied if there is "a showing that the probability of assault was augmented either because of the peculiar character of the claimant's job or because of the special liability to assault associated with the environment in which he must work." 1 A. Larson, The Law of Workmen's Compensation § 11.11(a) at 3-161 (1984). Professor Larson notes 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 3-161 to 3-165. See Continental Life Insurance Co. v. Gough, 161 Va. 755, 761, 172 S.E. 264, 266 (1934). See also Immer and Company v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257-58 (1967).

Applying the foregoing principles to the facts of the present case, we hold that the claimant was injured in an accident "arising out of" her employment. As part of her...