Lyons v. Lyons Truck Service, WD45221

• Decision Date: 28 April 1992
• Docket Number: No. WD45221,WD45221
• Citation: 831 S.W.2d 706
• Court: Missouri Court of Appeals
• Parties: Joyce Y. LYONS and Duane & Daniel Lyons, Respondents, v. LYONS TRUCK SERVICE, Appellant, and State Treasurer, Custodian of the Second Injury Funds, Appellant.

Page 706

831 S.W.2d 706

Joyce Y. LYONS and Duane & Daniel Lyons, Respondents, v. LYONS TRUCK SERVICE, Appellant and State Treasurer, Custodian of the Second Injury Funds, Appellant.

No. WD45221.

Missouri Court of Appeals Western District.

April 28, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

June 2, 1992.

Application to Transfer Denied July 21, 1992.

Terry J. Brady, Mark E. Kelly, Kansas City, Gage & Tucker, for State Treasurer, Custodian of the Injury Fund.

James F. Crews, Tipton, Crews, Gaw, Lutz & Opie, for Lyons Truck Service.

William D. RottsColumbia, Charlotte Adams Atkinson, for Joyce Lyons, Duane Lyons and Daniel Lyons.

Before TURNAGE, P.J., KENNEDY and BERREY, JJ.

TURNAGE, Presiding Judge.

Joyce Lyons and her two minor children filed a claim for workers' compensation benefits as a result of the death of their husband and father, Howard Lyons. The Administrative Law Judge awarded benefits and on appeal to the Labor and Industrial Relations Commission the award was affirmed. On this appeal, the employer and the Second Injury Fund (SIF) contend there was no evidence to support a finding that Howard was killed as a result of an accident which arose out of and in the course of his employment, that exhibits offered by the employer should have been received, and that the SIF is not required to pay death benefits. Affirmed.

The evidence consisted primarily of testimony by Joyce Lyons and Forrest Lyons, the father of Howard. Joyce testified that on the afternoon of May 28, 1985, Howard called her from West Point, Mississippi, and told her that he was unloading livestock and was waiting on a load to return home. Howard drove a truck for Lyons Truck Service which at the time of his death was owned by his father and mother. The father and mother were divorced at the time of trial and only Forrest testified.

Lyons Truck Service is based in Hallsville, Missouri. Forrest testified that his company engaged in the interstate transportation of livestock. Forrest testified that he received a call on May 28, 1985, from West Point, Mississippi, advising him that Howard had been shot at 9:30 p.m. on that day and had died later that night. Forrest went to West Point and found the truck parked in a motel parking lot and the trailer at a Union 76 Truck Stop about one and one-half miles away. Forrest stated that drivers tried to obtain a return load and did sometimes stay overnight to wait for a return load. He stated that after such a trip a layover for rest was to be expected. He said that normally drivers were not authorized to stay in a motel but were expected to sleep in their truck cabs if they stayed overnight out of town. However he said that rule applied only as far as reimbursing drivers for motel rooms was concerned, and if a driver wanted to stay in a motel it would be at the driver's own expense. He further testified that it was 550 miles from Hallsville to West Point and the trip took about nine and one-half hours.

There was no evidence to show the circumstances surrounding the shooting of Howard.

There was an effort to introduce in evidence before the Administrative Law Judge two exhibits which were copies of proceedings in the Circuit Court of Clay County, Mississippi, relating to the death of Howard. One exhibit was an order purported to be signed by a circuit judge and the other purported to be the proceedings by which a person was sentenced for the killing of Howard. The Administrative Law Judge refused to admit such exhibits because they were not properly certified as required by § 490.130. ¹

It is conceded by all parties that Lyons Truck Service was not insured for workers' compensation at the time of Howard's death. Under § 287.220.5 payment may be made from the SIF when the employer is uninsured. For that reason the SIF is a party to this action as well as the employer.

The employer and SIF contend that there was no evidence to show that Howard was killed as a result of an accident arising out of and in the course of his employment. The standard of review of a decision by the Labor and Industrial Relations Commission is that its decision will be affirmed when this court determines that the decision is supported by substantial and competent evidence after this court reviews the entire record and considers the evidence in the light most favorable to the award. Olivio v. TLI, Inc., 731 S.W.2d 395, 397 (Mo.App.1987). The Commission found that it was a reasonable inference, based on Howard's truck being parked in a motel parking lot, that Howard was at the motel to obtain a room for rest. The Administrative Law Judge found, and the Commission affirmed, that the fatal assault on Howard was unexplained and that under the law an unexplained assault is compensable.

In Olivio, a truck driver was assaulted while he was sleeping in the cab of his truck. Id. at 397. The court held that Olivio was where he was supposed to be and doing what he was supposed to be doing when the injury occurred because he was sleeping while out of town on his duties. In Person v. Scullin Steel Company, 523 S.W.2d 801, 805 (Mo. banc 1975), the court quoted from Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165, 167 (1949), the rule that when an employee is found injured at a place where his duties required him to be that a rebuttable presumption arises that he was injured in the course of his employment.

In this case the Commission was justified in drawing the inference that Howard was in the motel parking lot for the purpose of obtaining a room for rest. As in Olivio, he was in a place where he was supposed to be because getting rest was authorized by his employer although he would have had to pay for the motel out of his own pocket. Since Howard was at a place where he was supposed to be and doing what he was authorized to do, the presumption arises that he was injured in the course of his employment and there was no evidence to rebut that presumption. The Commission was therefore authorized to find that he was acting in the course of his employment.

The other prong of the test, arising out of employment, was met also. There is no question that on this record the assault which resulted in Howard's death was unexplained. In Person, the court held that there are three types of assault in workers' compensation law which divide into three classes. Id. at 803. The first is the assault which is invited by the dangerous nature of the employee's duties or by the dangerous environment in which the employee is required to perform, or the outgrowth of frictions of the work itself. The second is an assault committed in the course of private quarrels that are purely personal to the participants. The third is an assault of an irrational, unexplained, or accidental nature which is classed as being of a neutral origin. Person held that a 1969 amendment to § 287.120.1 made the third class of assault compensable. Id. at 804. In Allen v. Dorothy's Laundry & Dry Cleaning Co., 523 S.W.2d 874, 878-79 (Mo.App.1975), this court stated that the amendment to § 287.120.1 in 1969 eliminated in the "case of a 'neutral' unprovoked assault which arose in the course of employment, the necessity for an affirmative showing that the assault arose out of the employment." In this case the assault was of the neutral class and therefore there was no necessity for showing that the assault arose out of the employment.

The death of Howard occurred while he was in the course of his employment and the assault as a matter of law arose out of the employment.

It follows that the Commission was justified in finding that the assault on Howard was compensable and that it arose out of and in the course of his employment. The employer and SIF point to testimony of Forrest Lyons when he mentioned drivers going to motels to pick up women and argue that Howard was at the motel for that...