COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
KAREN D. MALLORY, on behalf of
VICTOR REGINALD MALLORY, SR. (DECEASED)
MEMORANDUM OPINION* BY
v. Record No. 1226-99-2 JUDGE NELSON T. OVERTON
JANUARY 27, 2000
WILLIAM OSCAR TYLER AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ruth E. Nathanson (Maloney, Huennekens,
Parks, Gecker & Parsons, on brief), for
appellant.
Theodore J. Burr, Jr. (Outten, Barrett, Burr
& Sharrett, P.C., on brief), for appellee
William Oscar Tyler.
Christopher D. Eib, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General, on brief), for appellee
Uninsured Employer's Fund.
Karen D. Mallory ("Mallory"), on behalf of Victor Reginald
Mallory, Sr. ("decedent"), appeals a decision of the Workers'
Compensation Commission (commission) denying her application
alleging a September 6, 1996 injury by accident resulting in the
decedent's death. Mallory contends that the commission erred in
finding that (1) the decedent, a cab driver, left the scope of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
his employment and the protection of the Workers' Compensation
Act ("the Act") when he broke employer's rules; (2) the
presumption contained in Southern Motor Lines v. Alvis, 200 Va.
168, 104 S.E.2d 735 (1958), was not applicable to this case; and
(3) the decedent engaged in willful misconduct which barred an
award of benefits. Finding no error, we affirm the commission's
decision.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
A claimant must prove that an injury arose out of and in
the course of his employment to qualify for any benefits under
the Act. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410
S.E.2d 646, 647 (1991).
An act is within the scope of the
employment relationship if
"(1) it be something fairly and naturally
incident to the business, and (2) if it be
done while the servant was engaged upon the
master's business and be done, although
mistakenly or ill-advisedly, with a view to
further the master's interests, or from some
impulse or emotion which naturally grew out
of or was incident to the attempt to perform
the master's business, and did not arise
wholly from some external, independent, and
personal motive on the part of the servant
to do the act upon his own account."
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Smith v. Landmark Communications, Inc., 246 Va. 149, 151-52, 431
S.E.2d 306, 307-08 (1993) (citations omitted). Unless we can
say as a matter of law that Mallory's evidence sustained her
burden of proof, the commission's findings are binding and
conclusive upon us. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In holding that the decedent's death occurred after he left
the scope of his employment, the commission found as follows:
[T]he evidence clearly establishes that the
[decedent] had just dropped off a fare in
the Washington Park area on the west side of
town. He had been instructed by the
dispatcher for the employer to go to the
Holiday Inn on the east side of town and
pick up a fare. Both of the women the
[decedent] picked up testified that [he] was
heading from the Washington Park area when
they flashed their lights at the cab,
causing him to stop. The [decedent]
voluntarily turned his cab around and the
women got in the cab and headed in the
opposite direction of his assigned fare back
toward Washington Park.
The [decedent] broke his company's
rules by disobeying the instructions given
to him by the dispatcher. As such, [he]
left the scope of his employment and the
protection of the . . . Act.
Moreover, any evidence that the
[decedent] was involved in a car jacking is
purely speculative. The evidence consisted
mostly of otherwise uncorroborated accounts
from people incarcerated and accused of the
[decedent's] murder who indicated that the
[decedent] was involved in a drug deal
and/or solicitation of sex. Billy Borum, an
undercover officer, testified based on his
knowledge, experience and a review of some
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of the facts surrounding the murder, that he
believed the [decedent] was robbed. Even if
we accept this speculative testimony that
the [decedent] was robbed and did not
participate in any illegal activity, he was
robbed after he deviated from his
employment.
The evidence included the testimony of William Tyler,
employer's written rules and regulations, and Section 86-91 of
the City Code of Emporia, which Tyler had instructed his
employees to comply with. This credible evidence supports the
commission's finding that employer's rules required that its cab
drivers obey the dispatcher's instructions regarding picking up
passengers at a designated location and that they were not
permitted to pick up passengers unless assigned by the
dispatcher or located at a cab stand. Credible evidence also
established that the decedent was made aware of employer's rules
before his death.
Furthermore, undisputed evidence established that the
decedent deviated from his employment when, instead of
continuing to drive away from Washington Park, he voluntarily
turned his cab around, picked up the two women, and headed back
toward Washington Park instead of in the direction of the
Holiday Inn. Based upon this evidence, the commission could
reasonably conclude that the decedent was not engaged in an
activity fairly and naturally incidental to employer's business
immediately prior to his death. Rather, the evidence permitted
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the inference that the decedent broke employer's rules and
removed himself from the scope of his employment before his
death, regardless of what occurred thereafter.
Because Mallory's evidence did not prove as a matter of law
that the decedent was acting in the course of his employment at
the time of his death, the commission's findings are binding and
conclusive upon us.
II.
In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104
S.E.2d 735 (1958), the Supreme Court recognized the following
presumption:
[W]here an employee is found dead as the
result of an accident at his place of work
or near-by, where his duties may have called
him during the hours of his work, and there
is no evidence offered to show what caused
the death or to show that he was not engaged
in his master's business at the time, the
court will indulge the presumption that the
relation of master and servant existed at
the time of the accident and that it arose
out of and in the course of his employment.
Id. at 171-72, 104 S.E.2d at 738. However,
"[w]here liability is imposed on the
employer on presumptive evidence to the
effect that the death arose out of the
employment, there must be an absence of
contrary or conflicting evidence on the
point and the circumstances which form the
basis of the presumption must be of
sufficient strength from which the only
rational inference to be drawn is that death
arose out of and in the course of the
employment."
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Winegar v. Int'l Telephone & Telegraph, 1 Va. App. 260, 263, 337
S.E.2d 760, 761 (1985) (quoting Hopson v. Hungerford Coal Co.,
187 Va. 299, 305, 46 S.E.2d 392, 395 (1948)).
In this case, contrary and conflicting evidence existed
with respect to the circumstances surrounding the decedent's
death. As fact finder, the commission was entitled to weigh the
evidence and to resolve the conflicting inferences deducible
from that evidence against Mallory. "Matters of weight and
preponderance of the evidence, and the resolution of conflicting
inferences fairly deducible from the evidence, are within the
prerogative of the commission, and are conclusive and binding on
the Court of Appeals." Kim v. Sportswear, 10 Va. App. 460, 465,
393 S.E.2d 418, 421 (1990) (citation omitted).
Credible evidence supports the commission's inference that
prior to the decedent's death, he left the scope of his
employment when he willfully violated employer's rules and went
on a frolic of his own. That is, the decedent was not "where
his duties . . . called him" at the time of his death, rendering
the presumption inapplicable. Here, unlike Alvis, credible
evidence supports the rational inference that the decedent's
death did not occur in the course of or arise out of his
employment. Accordingly, the commission did not err in refusing
to apply the Alvis presumption.
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III.
Because our rulings on Issues I and II dispose of this
appeal, we need not address this issue.
For these reasons, we affirm the commission's decision.
Affirmed.
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