                    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."




                                 - 2 -
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

                               - 3 -
          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


                               - 4 -
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."


                              - 5 -
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.




                                - 6 -
                              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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