## Facts

- A 15-year-old, Jeffrey A. McCray, was killed in a Charlottesville Music Center store while operating a wooden cargo hoist used to move items between the first floor and basement.
- McCray went to the store with a friend to help other youths erect shelving; the store manager knew of and tacitly approved their help.
- No compensation was promised, and the youths did not expect to be paid.
- Evidence indicated the hoist had not been inspected since 1946, had been overloaded in the past causing the motor hook to straighten, had visible defects, and had previously malfunctioned.
- The hoist fell to the basement, killing McCray; there were no eyewitnesses to the accident.

## Issues

1. Whether McCray was an “employee” under the Virginia Workmen’s Compensation Act, making workers’ compensation the exclusive remedy and barring the wrongful-death action.
2. Whether McCray was a licensee rather than an invitee, limiting the duty owed by the store.
3. Whether the evidence was insufficient to prove the store’s negligence, requiring the case to be struck or the verdict set aside.
4. Whether McCray was contributorily negligent as a matter of law.
5. Whether the trial court erred in admitting expert testimony about how the accident occurred.
6. Whether the trial court erred in refusing to exclude jurors who had prior knowledge of the accident through publicity.

## Decision

- The Supreme Court of Virginia affirmed the judgment for the plaintiff on a jury verdict of $25,500 (including $500 for funeral expenses).
- McCray was not an employee under the Workmen’s Compensation Act because there was no express or implied contract of hire and no payment or expectation of remuneration.
- McCray was treated as an invitee because he performed services on the premises with the occupier’s knowledge, approval, and consent, even though the services were gratuitous.
- The evidence regarding the hoist’s condition and history was sufficient to submit negligence to the jury.
- Contributory negligence was properly left to the jury; with no eyewitnesses, the decedent was entitled to a presumption of due care absent evidence to the contrary.
- The expert-testimony challenge was not reviewed because the appellate objection differed from the trial objection.
- The trial court did not reversibly err in jury selection where jurors with prior knowledge stated they had no bias, and the record did not contain the allegedly prejudicial articles.

## Legal Principles

- Workers’ compensation exclusivity applies only where the injured person worked under a contract of hire; gratuitous services, without payment or expected remuneration, are not covered.
- An implied contract of hire may arise only when circumstances reasonably indicate the parties intended compensation or the recipient of services should know remuneration was to be exchanged.
- A person performing services on premises with the occupier’s knowledge, approval, and consent may be an invitee even if the services are gratuitous; the occupier owes ordinary care to keep premises reasonably safe and to warn of hidden dangers known or reasonably discoverable.
- Negligence and contributory negligence are generally jury questions and become questions of law only when reasonable minds can draw only one inference.
- When an accident causes death and there are no eyewitnesses, the decedent is presumed to have exercised ordinary care absent evidence to the contrary.
- Appellate review of evidentiary rulings requires preservation: the objection argued on appeal must match the ground stated at trial.
- Jurors need not be wholly unaware of case facts; absent demonstrated bias or a sufficient record showing prejudice, refusal to strike such jurors is not reversible error.

## Conclusion

The court held that a youth who volunteered to help with store work without any expectation of pay was not an employee for workers’ compensation purposes and could pursue a wrongful-death claim; the evidence supported treating him as an invitee and left negligence and contributory negligence to the jury, with the decedent benefiting from a presumption of due care where no eyewitnesses existed.


Charlottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 205 S.E.2d 674 (1974)