Jordan v. St. Louis County Police Dept., 49477

• Decision Date: 08 October 1985
• Docket Number: No. 49477,49477
• Citation: 699 S.W.2d 124
• Parties: Robert JORDAN, Deceased, and Emmagene M. Jordan, et al., Claimants, v. ST. LOUIS COUNTY POLICE DEPARTMENT, Employer.
• Court: Missouri Court of Appeals

Page 124

699 S.W.2d 124

Robert JORDAN, Deceased, and Emmagene M. Jordan, et al., Claimants, v. ST. LOUIS COUNTY POLICE DEPARTMENT, Employer.

No. 49477.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 8, 1985.

Jack Randall, St. Louis, for claimants.

Daniel Bartlett, Clayton, for employer.

SMITH, Presiding Judge.

Claimants appeal from an award of the Labor and Industrial Relations Commission denying worker's compensation for the death of Robert Jordan. The denial was based upon the finding of the Commission that "the facts in evidence and the inferences that can be drawn therefrom are insufficient to reach a conclusion that Officer Jordan's death resulted from the course and scope of his employment with the St. Louis County Police Department."

The facts necessary to a resolution of Jordan's status at the time he was killed are undisputed and are contained in a stipulation of the parties which includes the testimony given by three witnesses who testified at the killer's capital murder trial. Jordan had been a St. Louis County police officer for 19 years and was a resident of the City of St. Louis. On May 16, 1981, Jordan came home from his part-time job as a security guard at Fashion Gal, a woman's clothier. He put on civilian clothing and strapped his service revolver behind his back under his shirt. It was his custom always to carry his police identification, badge and revolver whenever he left home. He verified through his wife that the revolver was concealed, and then left his home with his daughter to go shopping. Outside a package liquor and confectionary store in the City of St. Louis Jordan was shot by Samuel McDonald. There was no evidence of what happened immediately prior to the first shot which wounded Jordan but not fatally. After the shot three witnesses saw Jordan on his knees. He pulled his wallet, containing his badge, from his pocket and handed it to McDonald. One witness, Jordan's 11 year old daughter, saw the badge flash as the wallet was handed to McDonald. After receiving the wallet, McDonald turned, started to walk away, looked at the wallet, turned back and shot Jordan. The bullet penetrated two chambers of the heart, passed through the lower portion of the left lung, passed through the stomach and left the body. This shot was fatal. After firing the shot McDonald turned to walk away. Jordan got to his feet, drew his revolver and fired at McDonald, wounding him. Jordan then entered the confectionary, stated he had been shot and to call the police, and then collapsed. He died shortly thereafter. McDonald crawled to his getaway car, driven by his girlfriend, and was taken to the Veteran's Administration hospital. He was located there by the police. Upon inspection of the gunman's car, the police found Jordan's wallet with his badge protruding. McDonald was tried and convicted of capital murder and sentenced to death. State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983).

The Commission found that Jordan's death did not arise either "out of" or "in the course of" Jordan's employment with St. Louis County. See Sec. 287.120.1 RSMo 1978. Where the facts are not significantly in dispute the question of whether the death arose out of and in the course of employment is a matter of law. Dillard v. City of St. Louis, 685 S.W.2d 918 (Mo.App.1985) [9, 10]. As such, the Commission's decision is not binding on the court. Hunt v. Allis-Chalmers Manufacturing Company, 445 S.W.2d 400 (Mo.App.1969) l.c. 401. The Worker's Compensation law is to be liberally construed and any doubt as to the employee's right to compensation must be resolved in favor of the employee. Conyers v. Krey Packing Co., 194 S.W.2d 749 (Mo.App.1946) .

In Dillard v. City of St. Louis, supra, [4-6], we stated the accepted definitions of "arising out of and in the course of" employment as follows:

"An injury 'arises in the course of' employment if it occurs within the period of employment at a place where the employee may reasonably be, while engaged in the furtherance of the employer's business or if he is injured in doing an act reasonably incidental to the performance of his duties, of which his employer might reasonably have knowledge or reasonably anticipate.... (Citations omitted). An injury 'arises out of' the employment if (1) the injury results from a natural and reasonable incident of the employment, a rational consequence of some hazard connected therewith or a risk reasonably inherent in the particular conditions of the employment and (2) if the injury is the result of a risk peculiar to the employment or enhanced thereby."

Whether the death is an incident of the employment must be determined by the particular facts and circumstances of each case as no all-embracing definition of the phrase "arising out of and in the course of employment" has yet been framed. Conyers v. Krey Packing Co., supra, [2-3]; King v. City of Clinton, 343 S.W.2d 185 (Mo.App.1961) [2, 3].

The Commission based its conclusion that Jordan's death did not "arise out of and in the course of" his employment upon essentially two facts--Jordan was off-duty at the time of the shooting and he was outside his jurisdiction. The manual of Conduct and Discipline of the Board of Police Commissioners of St. Louis County lists seven violations under Neglect of Duty. The first states:

"Having knowledge that a crime has been committed and wilfully or through neglect fails to report such knowledge to the proper authority or fails to take reasonable steps to apprehend the offender;"

The fifth states:

"Fails to take appropriate action to protect life and property, preserve the peace, prevent crime, or otherwise enforce all federal, state and local laws and ordinances, while on duty and within the jurisdiction of the St. Louis County Department of Police; ...." (Emphasis in original)

None of the other violations constituting neglect of duty contains the underlined phrase. We are led to the conclusion that the conduct prescribed under the first quoted provision is required whether the officer is on or off duty and whether he is within or without the jurisdiction of the ...