Ferguson v. Twin Hills Golf & Country Club, Inc.

679 S.W.2d 355, 1984 Mo. App. LEXIS 4075
CourtMissouri Court of Appeals
DecidedAugust 27, 1984
DocketNo. 13463
StatusPublished
Cited by4 cases

This text of 679 S.W.2d 355 (Ferguson v. Twin Hills Golf & Country Club, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. Twin Hills Golf & Country Club, Inc., 679 S.W.2d 355, 1984 Mo. App. LEXIS 4075 (Mo. Ct. App. 1984).

Opinions

GREENE, Judge.

Claimants, Robin Laverne Ferguson and Glenda Joan Ferguson, appeal a final award by the Labor and Industrial Relations Commission (commission) denying workers’ compensation benefits, for the death of their grandfather, Truman LeRoy Ferguson.

The sole issue is whether Truman’s death arose out of and in the course of his employment with the Twin Hills Golf and Country Club located in Jasper County, Missouri.

We view the record in the light most favorable to the commission, whose findings are conclusive if supported by competent and substantial evidence. Taliaferro v. Barnes Hospital, 586 S.W.2d 429, 431 (Mo.App.1979).

There is competent and substantial evidence in the record to show that Truman Ferguson was employed as a weekend night watchman at the country club. He worked from 10 P.M. until 6 A.M. on Saturday and Sunday nights. The country club is located southeast of the intersection of [356]*35620th Street and Black Cat Road in Jasper County. Truman lived west of Twin Hills in Galena, Kansas. To get to work, he drove his 1956 Ford east on 20th Street from Galena to Twin Hills.

At about 10 P.M. on the evening of October 3, 1981, two men who were John Johnson and Randall Ruark, were riding around in Johnson’s pickup truck. Johnson was driving and Ruark was a passenger. The two men had been drinking whiskey and were “drunk and ornery.” As Johnson’s pickup exited a dirt road and entered West 20th Street, at a point about two miles west of the intersection of 20th Street and Black Cat Road, Johnson narrowly missed being involved in a collision with an old blue Ford going east on 20th Street. After the near miss, both vehicles travelled east on 20th Street with the Ford in front. Johnson and Ruark were angry because of the near collision. Johnson would speed up until his front bumper would almost touch the rear bumper of the Ford and would try to pass the Ford. When this happened, the Ford would veer to the center of the road, preventing a pass. This went on for two miles until they got to the intersection of 20th Street and Black Cat Road. The Ford veered slightly to the south and Johnson started to pass the Ford. At this point, Ruark pointed a loaded .44 caliber pistol owned by Johnson in the general direction of the Ford and fired one shot. The pickup truck then continued on 20th Street.

Neither Johnson nor Ruark was aware that the shot had struck Ferguson. The next morning, Ferguson was found in his automobile. There was a hole in the driver’s door window. He had a gunshot wound to the head, and there was a lot of blood in the car. The Ford was located on a paved portion of the intersection across the street from the entrance to the country club. The car’s headlights and ignition key were on and the car was in gear but the engine was not running. Ferguson died from his gunshot wound on October 17.

Ruark was charged with manslaughter for killing Ferguson. He pled guilty and was sentenced to 10 years’ imprisonment.

Based on these uncontroverted facts, the referee, now administrative law judge, for the commission ruled that Ferguson met his death by reason of an assault that occurred in the course of a private quarrel that was personal to Ferguson, Johnson and Ruark, and, therefore, did not arise out of Ferguson’s employment. For that reason, he denied the claim of Robin and Glenda for death benefits. The commission, on application for review, affirmed the findings and award of the administrative law judge.

The parties agree that this is an assault case. Missouri courts recognize three types of assault that affect employers’ liability in workers’ compensation claims. These classification are 1) assaults invited by the employee’s dangerous duties or environment, or directly attributable in some way to the risks in the worker’s employment, 2) assaults committed in the course of private quarrels that are purely personal to the participants, and 3) irrational unexplained assaults of so-called “neutral” origin, which cannot rationally be attributed to employment. Person v. Scullin Steel Company, 523 S.W.2d 801, 803-804 (Mo. banc 1975).

There is no evidence in this case that the assault in question occurred as a result of Ferguson’s duties, or his environment, while performing his duties as' a night watchman, or that it was directly attributable in some way to the risks of Ferguson’s employment, so that classification is eliminated from our consideration of the problem.

While the administrative law judge ruled that Ferguson’s death was caused by an assault which occurred in the course of a private quarrel between Ferguson, Johnson and Ruark, which ruling was adopted by the commission, we do not believe that there is a factual basis for such declaration of law. Accepting everything Johnson testified to as true, there is nothing in his testimony to indicate that Ferguson was involved in a “private quarrel” with Johnson and Ruark. To the contrary, the evidence shows that the shooting of Ferguson [357]*357was an irrational and unexplained act that was unprovoked by Ferguson. The precise testimony on the issue was as follows:

“Q. Then can you tell the Court what happened as you approached the intersection of Twentieth and Black Cat Road?
A. Okay, yeah, I was going, from there, I guess the car in front of us veered off to the south and I thought, ‘My perfect chance; I'll go around him and get out of this junk.’ I went around and about half way through the intersection Randy popped off the shot.
Q. When, you say Randy popped off the shot, who’s Randy?
A. Mr. Ruark.
Q. When you say popped off the shot, you mean he shot the gun?
A. Right.
Q. Were you in—this incident you referred to happened in a split second, did it not?
A. The shot?
Q. The pop?
A. Oh, yeah, it was so fast.
Q. You just heard the pop; you didn’t see Randall take the gun and aim?
A. Out of the corner of my eye I happened to catch he was sticking his arm out the window.
Q. You didn’t know whether he had a whiskey bottle or gun, did you?
A. It’s kind of obvious. It’s not a small weapon. Yes, I was aware.
Q. As you entered the intersection?
A. Right.
Q. And you heard the pop?
A. Right.
Q. And before that time Randall hadn’t told you he was going to shoot anything?
A. Yes, he had.
Q. What did he say?
A.

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Bluebook (online)
679 S.W.2d 355, 1984 Mo. App. LEXIS 4075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-twin-hills-golf-country-club-inc-moctapp-1984.