delivered the opinion of the court.
Thе petitioner applied to the Industrial Commission of Virginia for compensation for the death of her husband, William L. Hopson, who was an employee of Hunger-ford Coal Co., Inc., dealers in coal. She and her six children under the age of eighteen years at the time of his death werе his dependents.
The Industrial Commission denied compensation on the ground that there was no evidence that the accident causing Hopson’s death arose out of his employment.
There is no dispute as to the facts. They are as follows: Hopson had been a faithful emplоyee of the Hungerford Coal Co., Inc., for 24 years and he had no known enemies. He was at the time of his death and had been for several years a truck driver engaged in delivering coal to the customers of his employer. In addition to this, he also worked on a farm in New Kent county which bеlonged to his employer and which was operated as a part of the business of the coal company and used for the entertainment of the customers of the company. It had proven successful for a number of years in aiding in the retention of old customers and attracting new ones. It was not self-supporting and the expense of maintaining and operating it, including Hopson’s salary, was borne by the coal company.
On the morning of October 16, 1946, Hopson was instructed to deliver a load of coal to a customer in Richmond and after the delivery to proceed with the coal truck to the farm where he was directed to cut some standing corn to be used in feeding the livestock. He was directed to return to Richmond that afternoon. The truck was a red, dump body truck, with the name, “Hungerford” in large letters on each side of the body, and the words “Hungerford Coal Co., Inc.” on the rear.
Hopson delivered the load of coal as directed and proceeded to the farm but failed to return to Richmond in the afternoon. He was never seen alive- after the morning of October 16. Mr. Hungerford, suspecting foul play, report
It is stipulated that Hopson was killed with a shotgun on October 16, 1946, during his regular working hours, by one Thomas Edward Barker, who had been committed to the Central State Hospital for the Negro insane at Petersburg on August 26, 1946, but had еscaped from that institution on October 13, 1946.
Barker was not available as a witness for the reason that he was insane. Dr. Allison of the Central State Hospital was of the opinion that he was feeble minded at the time he was committed in August, 1946, and that he possessed the mentality of a 13-year-old boy. He was familiar with the location of the Hungerford farm and of that general section of New Kent county, having been born and reared in that neighborhood. He and Hopson were not acquainted.
On October 15, Barker appeared at the home of his brother-in-law, Clifford Otey, whо lived near the Hungerford farm. He spent the night at Otey’s home and left the next morning at 7:30, after having stolen Otey’s 20-gauge shotgun, with which the murder was committed, and a box and a half of shotgun shells. Prior to the murder on October 16, Barker attempted to obtain money from persons in and
Barker again escaped from the hospital on the night of October 22 and returned to this same neighborhood. A posse was formed on the night of October 24 and he was captured about 10 p. m. that night. A button was missing from his coat and a button which was found at the scene of the crime was identified as corresponding to the buttons on the coat.
The missing truck was located on October 27 secreted in some woods near the Hopewell ferry. The record fails to show that Barker made any effort to dispose оf the truck. He was indicted for murder on November 4, 1946, but he has not been tried on account of his mental condition. He was found insane by the authorities at the State Hospital' on March 26, 1947.
The Industrial Commission held that from the established facts there could be no doubt but that Hopson was killed as the result of an accident happening in the course of his employment. When he was shot he was doing that which he was employed to do and doing it under instructions from his superior.
The serious and determinative question is, did the accident arise out of Hopson’s employment. This question was answered in the negative by the Industrial Commission.
Under section 2-D of the Workmen’s Compensation Act, which is carried in the Code of Virginia, 1942 (Michie) as
Perhaps the clearest definition of “arising out of and in the course of” is found in In re McNicol,
In several States there is a presumption, in the absence of evidence to the contrary, that where an employee charged with the performance of a duty is found injured at a place where his duty required him to be, he was injured in the course of and in consequence of the employment. Saunders v. New England Collapsible Tube Co.,
In Hanson v. Robitshek-Schneider Co.,
In Sullivan v. Suffolk Peanut Co.,
In cases of this nature, where liability is imposed on the employer on presumptive evidence to the effect that the deаth 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.
The New Jersey court has differentiated the cases in which the presumption may or may not be applied. See Nardone v. Public Service Elec., etc., Co., 113 N. J. L. 540,
Virginia is committed to a more conservative interpretation of the phrase “arising out of and in the course of”. In Campbell & Co. v. Messenger,
And again the court, at page 379, said: “ ‘When damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is bound to make out- his case by the preponderance of evidence.’ Norfolk, etc., R. Co. v. Poole,
Again at page 380 the court said: “It comes back to this: The plaintiff must prove his case, and as an essential part of it, he must prove causal connection between the employment and the shooting. This proof must go beyond conjecture.”
That case is controlling here, and compels an affirmance of the order of the commission. See also, Lawrence v. Viscose Corp., 6 O. I. C. 963; Pulley v. American Suppliers, Inc., 15 O. I. C. 163, and Maupin v. Roanoke Water Works Co., 15 O. I. C. 438.
It is true a permissible and reasonable inference could have been drawn by the Industrial Commission that Hop-son was killed by Barker in an effort on Barker’s part to steal the truck. H¿ did steal the truck and drove it many miles away and secreted it in the woods. Even if his mentality was that of a child 13 years of age he was cunning enough to hide the truck. Probably he was intelligent
A finding by the commission that Hopson’s death arose out of his employment could have been predicated on the circumstances narrated. But under its power to make conсlusive findings of fact it has found that the circumstances and the inferences do not support the claim that the theft of the truck was the motive of Barker in killing Hopson. The commission refers to other circumstances and inferences which it holds lead to the conclusion that theft was not the motive. The circumstances pointed out are that Hopson was shot close to where his body was found in the corn field. No evidence shows where the truck was parked at the time. It is not likely it was parked in the corn field. Barker might have taken the truck without Hopson’s knowledge or bеfore he could have reached Barker. If Hopson attempted to prevent the theft likely he would have left the corn field to do so. Probably the truck was taken by Barker in his effort to escape rather than for the purpose of stealing it.
Motive was the vital element in thе case for if it were a personal matter between Hopson and Barker then his death would not have grown out of his employment. On the other hand if the death occurred while he was attempting to protect his employer’s property from theft his death might have been said to hаve arisen out of his employment. The commission has held that there is no
In concluding, the commission held: “Thus there is here presented a case in which by possibility liability might follow from causes for which the employer is responsible. Other equally plausible causes have been suggested from which no liability can be established. An award of compensation therefore would be based upon mere conjecture or upon the hope of making the right guess. This cannot be done.”
Before compensation can be awarded it must be concluded from the facts that the injury or death has been traced to the employment as a cause. Where divergent or conflicting inferences reasonably might be drawn from established facts their determination is exclusively for the fact-finding body.
The order of the Industrial Commission is affirmed.
Affirmed.