                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia


JOYE ANNETTE COMPTON-WALDROP, DECEASED
                                              OPINION BY
v.       Record No. 2385-94-1          JUDGE SAM W. COLEMAN III
                                           NOVEMBER 14, 1995
CITY OF VIRGINIA BEACH POLICE DEPARTMENT


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Michael A. Kernbach for appellant.
          Charles B. Miller, Assistant City Attorney
          (Office of the City Attorney, on brief),
          for appellee.



     In this workers' compensation appeal, the commission denied

death benefits under Code § 65.2-512 to the statutory beneficiary

of Joye Annette Compton-Waldrop, deceased.   The commission held

that the decedent was not an employee of the City of Virginia

Beach Police Department as defined by Code § 65.2-101

("Employee") of the Workers' Compensation Act (Act).    The

claimant contends that Compton-Waldrop was an employee of the

City under the "emergency employee" doctrine because she had been

"deputized" to assist an auxiliary police officer with an

emergency rescue.   We hold that because the City of Virginia

Beach had passed a resolution extending its workers' compensation

coverage to members of its auxiliary police force, when Compton-

Waldrop was required to assist the auxiliary police officer in

the rescue, she became an ad hoc member of the auxiliary police
force and thereby became an "employee" under the Act by virtue of
Code § 65.2-101 ("Employee") Subsection (1)(l).     Accordingly, we

reverse the commission and remand the claim for entry of an award

in accordance with this holding.

     Joye Annette Compton-Waldrop worked as a restaurant manager.

 After an evening shift, she and a co-worker, Martin Egert, drove

several employees home.   Thereafter, Compton-Waldrop and Egert

witnessed a serious two-car collision.     They stopped and began

rendering assistance to the injured occupants of the wrecked

vehicles.   While doing so, a City of Virginia Beach Auxiliary

Police officer, George W. Starr, arrived and took control of the

accident scene. 1

     Initially, Officer Starr ordered everyone to the side of the

roadway.    Moments later, however, he directed Egert, Compton-

Waldrop, and another gentleman to assist him.     He told Egert to

direct the headlights of his car to illuminate the accident scene

and then to take a flashlight and reflective vest to alert

oncoming drivers of the accident.      Officer Starr told Compton-

Waldrop to assist him with an injured person lying in the roadway

who appeared confused.    Officer Starr said to Compton-Waldrop,

"Ma'am come here, I need some help with this man."     Compton-
     1
       Code §§ 15.1-159.2(A) and 15.1-159.5 define the authority
of auxiliary police officers. Code § 15.1-159.2(A) provides that
an auxiliary police officer, "when called into service . . .
shall have all the powers and authority and all the immunities of
constables at common law." Although the record does not
specifically address whether Officer Starr had been "called into
service" by the City of Virginia Beach at the time, he was in
uniform, and it appears from the record that the parties do not
dispute that Starr was in service as an auxiliary officer.



                                 -2-
Waldrop responded and went onto the traveled portion of the

highway to assist the officer.   As Egert was walking up the

roadway, a car sped past him and struck Compton-Waldrop and

Officer Starr, killing both.

     Whether a person is an employee under the Workers'

Compensation Act is a question of law, reviewable on appeal.

Humphries v. Thomas, 244 Va. 571, 574, 422 S.E.2d 755, 756

(1992).   Because the right to recover under the Act is purely

statutory, the legislature has exercised its authority to define

who is and who is not an employee.     Code § 65.2-101 ("Employee");
see Barksdale v. H.O. Engen, Inc., 218 Va. 496, 498-99, 237

S.E.2d 794, 796 (1977).   Code § 65.2-101 defines the term,

"Employee" in subsection (1)(1) as "[e]very person, including a

minor, in the service of another under any contract of hire or

apprenticeship, written or implied, . . . in the usual course of

the trade, business, occupation or profession of the employer."

In addition to the foregoing general definition, Code § 65.2-101

also identifies specific groups or classes of persons who are

"employees" under the Act.   Thus, an individual is covered by the

Act only if he or she qualifies as an "employee" under

subsections 1(b) through (q) or is in the service of another

under a written or implied contract of hire or apprenticeship in

the usual course of the employer's trade, business, occupation or

profession.

     The claimant contends that Compton-Waldrop became an


                                 -3-
employee of Virginia Beach when Officer Starr required that she

assist him in an emergency rescue of an injured motorist.    In

invoking the "emergency employee" doctrine, a principle

recognized in a number of jurisdictions, see, e.g., State ex rel.

Nienaber v. District Court of Ramsey County, 165 N.W. 268, 268

(Minn. 1917), she argues that Officer Starr made Compton-Waldrop

a deputy subject to his command and control.   See also 1B Arthur

Larson, The Law of Workmen's Compensation § 47.42(c) (1995);

Annotation, Implied Authority of Servant to Employ Another in
Emergency So As to Create Relation of Master and Servant, 76

A.L.R. 963, 971(c) (1932).   Consequently, because the power to

control a person's actions is the most significant factor in

defining a master-servant or employment relationship, Intermodal

Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d 221, 224

(1988), Compton-Waldrop became a deputy, and thus, an employee

under Code § 18.2-463 and the doctrine of posse comitatus.

     Code § 18.2-463 provides that if a person, on being required

to assist a law enforcement officer, refuses or neglects to

assist in any case of rescue, the person shall be guilty of a

Class 2 misdemeanor.   The statute is founded in the common law

doctrine of posse comitatus.
          [A]s in the days of Edward I, the citizenry
          may be called upon to enforce the justice of
          the state, not faintly and with lagging
          steps, but honestly and bravely and with
          whatever implements and facilities are
          convenient and at hand.


Babington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).


                                -4-
            This power of the sheriff, or his deputy,
          to summon aid in a proper case, in enforcing
          the criminal laws, is not open to question.
          It is of ancient origin and in the early days
          of our country's growth often was exercised.
           More recently, with the organization in
          almost every state of state-wide police
          agencies and the development in each county
          of the various states of a larger and better
          integrated sheriff's force, the occasion for
          resorting to the posse comitatus has
          diminished greatly. Nevertheless, the power
          is there. The sheriff may make the call and
          the citizen will ignore it at his peril.


Eaton v. Bernadillo County, 128 P.2d 738, 742 (N.M. 1942).
     The commission made no factual finding about whether Starr

ordered Compton-Waldrop to assist him in the emergency rescue.

However, the evidence proves, at a minimum, that Officer Starr

required the three bystanders to assist him in securing the

accident scene and in attempting to rescue the injured motorist.

Thus, we find that Compton-Waldrop was required to assist

Officer Starr subject to penalty under Code § 18.2-463 and,

therefore, became an ad hoc member of the auxiliary police force.

     Although Compton-Waldrop was legally obligated under

Code § 18.2-463 to assist the rescue effort and was an ad hoc
member of the auxiliary police force, the fact that Officer Starr

could control her actions does not alone render her an employee

of Virginia Beach for purposes of the Workers' Compensation Act.

The purpose of the Workers' Compensation Act is to compensate an

"employee" who is injured during and as a result of the

employment, in an amount based upon a portion of the injured

employee's average weekly wage.    "Generally, 'a person is an


                                  -5-
employee if he works for wages or a salary and the person who

hires him reserves the power to fire him and the power to

exercise control over the work to be performed.'"    Intermodal,

234 Va. at 601, 364 S.E.2d at 224 (quoting Richmond Newspapers v.

Gill, 224 Va. 92, 98, 294 S.E.2d 840, 843 (1982)).    Whether a

person is an "employee" depends upon whether the person meets the

definition under the Act, not whether the person satisfies a

common-law definition of master-servant as a result of

Code § 18.2-463 or the doctrine of posse comitatus.
Charlottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 34, 205

S.E.2d 674, 677 (1974).   A person may be an employee under the

Act based upon an "implied" contract of hire, Code § 65.2-101

("Employee") (1)(a); however, if no contract to pay wages for

"hire" can be implied from the facts, a person is not an

"employee" under Subsection (1)(a).

     Compton-Waldrop had no expectation that she would be

compensated for her services.   "[E]xcluded from the definition of

'employees' [are] workers who neither receive nor expect to

receive remuneration of any kind for their services."
Charlottesville Music 215 Va. at 35, 205 S.E.2d at 678.     Thus,

Compton-Waldrop was not an "employee" based upon an implied

contract for hire under Subsection (1)(a) of Code § 65.2-101.       If

Compton-Waldrop was an "employee" under another provision of the

Act, only Subsection (1)(l) is potentially applicable.

     Code § 65.2-101 ("Employee") (1)(l) provides that for



                                -6-
purposes of the Act, "volunteer lifesaving or rescue squad

members, . . . auxiliary or reserve police . . . shall be deemed

employees . . . if the [local] governing body of such political

subdivision . . . has adopted a resolution acknowledging" that

coverage under the Act shall be extended to them.      Id. (emphasis

added).   Virginia Beach has adopted such a resolution, which

states in part:
          Sec. 2-4. Recognition of police, fire
                    companies and rescue squads as part
                    of public safety program.

             In gratitude to and in recognition of the
           valuable and necessary services performed by
           police, fire companies and rescue squads and
           the individual members thereof, both
           professional and volunteer, which service the
           city, the following police agencies and
           chartered fire companies and rescue squads
           are recognized and acknowledged to be an
           integral part of the official public safety
           program of the city, and the volunteer
           members of these police, and chartered and
           nonchartered fire companies and rescue
           squads, shall be deemed employees for the
           purposes of the Virginia Worker's
           Compensation Act:

                  *    *    *    *    *      *   *

           Virginia Beach Auxiliary Police

                  *    *    *    *    *      *   *

           Virginia Beach Rescue Squad, Incorporated



     Subsection (1)(l) of Code § 65.1-101 ("Employee") enables

local governing bodies to adopt a resolution extending workers'

compensation benefits to members of volunteer rescue squads or

auxiliary police forces, who serve the public without

                                -7-
compensation.   These persons become "employees" at the locality's

option.   Virginia Beach adopted such a resolution extending

coverage to members of the auxiliary police force, even though

these "employees" receive no weekly wage or have no expectation

of remuneration.

     We hold that when Officer Starr required Compton-Waldrop to

assist him with the emergency rescue, thereby placing her in

harm's way, she became an ad hoc member of the Virginia Beach

Auxiliary Police Department, and, therefore, because Virginia

Beach had passed a resolution extending workers' compensation

benefits to members of the Virginia Beach Auxiliary Police,

Compton-Waldrop was an "employee" under the Act.   Accordingly, we

remand the claim to the commission for entry of an award in

accordance with the Act.
                                         Reversed and remanded.




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