(dissenting).
I regret that I am unable to agree with the conclusions reached in the principal opinion or the opinion of the Kansas City Court of Appeals (383 S.W.2d 146) which is approved and adopted by the opinion of this court.
The facts are not in dispute and, since the question presented is one of law as regards its interpretation or application to the facts, the finding of the Industrial Commission is not binding on the reviewing court. The court of appeals recognizes this and cites supporting authorities. 383 S.W.2d at 147[3].
The essential facts bearing on the injury as set out in the opinion of the court of appeals are these, 383 S.W.2d at 147:
“ * * * On January 22, 1962, at 11:45 a. m. she [Miss Kelley, the claimant,] went out to lunch, and returned at 12:30 p. m. All the other offices on the floor were empty and closed at noon as their employees were at lunch. Miss Kelley’s office was the only one that always had someone present.
“Upon Miss Kelley’s return from lunch Mr. Terrell, a fellow employee, left for lunch leaving Miss Kelley alone. The third employee, Mr. Goodnight, was out of town that day. Miss Kelley went to the stock room for something and heard the bell on the elevator ring. The stock room is an inner room which can be entered only through the office. She describes what next occurred: ‘We have an automatic elevator and when it stops on our floor the bell rings, and I heard somebody walk into the office and walk up behind me and when I didn’t hear anybody say anything I started to turn around and then all I remember was somebody hitting me and that was all until I regained consciousness.’
“When Mr. Terrell returned from lunch at 1:10 p. m. he found Miss Kelley stretched out on the floor, face down and unconscious. She had a lump on the back of her head from something having struck *259it hard. There were black and blue marks on her right arm which could have been caused by finger prints. There were no heavy objects lying near her. Nothing in the office had been disturbed, tampered with or taken. Mr. Terrell summoned others, and Miss Kelley was taken to the hospital where she remained for a number of days.”
The court of appeals opinion sets out the three categories into which wilful assaults are divided and concludes that Missouri regards as noncompensable the “neutral category” which includes “completely unexplained assaults.” 383 S.W.2d at 147-148 [3], In support of this conclusion the opinion cites Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, which in turn relies chiefly on Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165. Both of these cases recognized the rule, as others have, that where an employee has been found injured at a place where his duty required him to be, a rebuttable presumption arises that he was injured in the course of and in consequence of his employment. It is true that in each case the court affirmed a judgment denying compensation but the reason was that there was evidence in each case tending to prove that the injury had no causal connection with the employment.
In Mershon, the Missouri rule was stated as follows, 221 S.W.2d at 167[2]: “Without reviewing those cases separately, we make the following general observations: Some, or all of them, hold under our Workmen’s Compensation Act and similar Acts that the burden is on a claimant to show that an employee’s injury resulted from an accident arising out of and in the course of his employment; but, when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; that such presumption is rebuttable.” The Toole case recognizes the same rule citing Mershon. See 291 S.W.2d at 880[4].
Thus, the court of appeals opinion considers the case to be a true “unexplained assault” case but holds that the “supreme court has definitely placed this state” among those jurisdictions that regard this category as noncompensable. In so ruling the opinion of the court of appeals is clearly erroneous. The principal opinion adopts the court of appeals opinion but goes further and draws inferences that the evidence rebuts the presumption of causal connection. I deem this to be a true unexplained assault case which under the Missouri rule requires an award of compensation.
Section 287.800, RSMo 1959, V.A.M.S., provides that the Workmen’s Compensation Act “shall be liberally construed with a view to the public welfare”. This has been held to mean that a doubt as to the right of compensation should be resolved in favor of the employee. Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, 773 [5]; Holland v. Missouri Electric Power Co., Mo.App., 104 S.W.2d 277, 282[5]; Baird v. Gleaner Harvester Corp., Mo.App., 172 S.W.2d 892, 898[9].
There is no evidence in this case that the assault was a personal matter unconnected with the employee’s duty to attend the open office and protect her employer’s property. It is a proper case for the application of the rule laid down in Toole, Mershon, and other cases if such rule has any meaning or application at all. The most likely explanation of the assault is that the unknown intruder intended to rob or pilfer but became frightened and fled after he struck Miss Kelley and she fell face downward on the floor. This is a permissible inference and should be adopted since there is no evidence tending to show the injury did not arise out of the employment. Certainly if the blow had killed her such result would have been in order. The meager evidence does not mitigate against this, theory. The court of appeals and the principal opinion tend to dilute and destroy established rulings of the supreme court without overruling the cases.
*260For the reasons assigned I respectfully dissent. I would reverse the judgment and remand with directions to award compensation.
HOLMAN, J., concurs.