Gunman Sprays Town; Kills 2, Wounds 4, Commits Suicide
HARRISONVILLE, Mo. (UPI)- A young man dressed in Army fatigues and firing an Ml carbine, sprayed bullets through the stores and streets around the square of this western Missouri town Friday killing two policemen and wounding four persons. Then he killed himself. "It's an act of a man going berserk, that's obvious," said Assistant City Counselor Nelson Allan. "Blood literally flowed in the streets," said a witness. "A stream of blood a block and a half long ran in the gutter." Dead by his own hand was Charles R. Simpson, 24, who lived with his elderly father in rural Holden, Mo., 20 miles away. Officers Donald Marler, 26, and Francis E. Wirts, 24, were killed by bullets fired into their backs. Hoping to discourage any further violence, city officials installed a curfew for the next two nights. Witnesses said the long-haired gunman stepped out of a car at sundown as the two officers walked their beat and shot them. He then allegedly fired several more times as they lay on the sidewalk across the square from the courthouse. Simpson then ran into the Allen Bank and firing wildly, wounded employees Deborah Roach and Mary Ellen Stuart. At least a dozen bullets were recovered from the bank later by FBI agents. The gunman ran down a side street toward Cass County jail and on the way shot Orville Allen, 50, in the chest and leg as Allen walked from a clothes cleaners. Allen was in critical condition in a local hospital. On reaching the jail Simpson then reportedly fired into a glass door of the sheriff's living quarters hitting Sheriff Bill Gough in the arm and leg.
April 24, 1972 The Kansas City Star, Charles Simpson Shooting in Harrisonville, M0
International Herald Tribune
PARIS, MONDAY APRIL 24, 1972
HARRISONVILLE, Mo April 23 1972 (AP). — A young man shot up the town square with an M1 carbine, killing two policemen, wounding a sheriff and three other persons, then killing himself.
Charles R. Simpson. 24, of nearby Holden, Mo., went on the five-minute rampage Friday evening in this community of 5,000. The slain policemen were Donald Marler, 26, father of one child and an officer for one year, and Francis Wirt, 24, who had been on the police force less than a month after Army duty in Vietnam. He was single.
Witnesses said the long-haired Simpson, wearing old Army fatigues, cut down the two policemen with a burst of rifle fire in the back as they walked in front
of a local bank.
Darting into the bank, Simpson sprayed it with bullets, inflicting superficial wounds on two employees, Deborah Roach and Mary Stewart.
Simpson ran past a cleaning shop and' a burst of gunfire,brought down Orville Allen, a delivery man in his 50s.
Mr. Allen, wounded in the chest and right leg, was In critical condition.
Dashing on to the sheriffs office, Simpson fired two shots through a window into the living quarters of Sheriff Bill Gough, who was lilt in the right shoulder and right leg while eating dinner. Sheriff Gough's condition was listed as good.
Simpson ran back toward the square, then shot himself. More than 100 rifle cartridges were found in his pockets.
Holden Police Chief Albert Wakeman said that Simpson had been in trouble frequently, mostly for traffic violations with his motorcycle.
“He seemed to get quite a kick out of trying to upset things around town with his motorcycle,” the police chief said. “He seemed to be in with the militant people
— the younger group that was turned this way. He was very belligerent toward police or authority."
He said that Simpson frequently called him "pig” and “he got a little stronger at times.” “He believed he was always getting the short end of the stick,” Chief Wakeman said. “He always had the feeling that he was being picked on.”
The Sedalia Democrat.
(UPl) Fourth Death in Harrisonville HARRISONVILLE, Mo. (AP) — The fourth victim of a wild shooting spree here last Friday died late Monday, a few hours after funerals of the other three were completed. Orville Allen, 58, a laundry deliveryman, died in a hospital where he had been in critical condition since he was shot down Friday on the Harrisonville square. Charles R. Simpson, 25, of Holden, Mo., went berserk with an M-1 carbine. He killed two policemen, wounded a sheriff and two bank employees in addition to Allen, then put the gun muzzle in his mouth and killed himself. Funerals were held in Harrisonville Monday for the officers, Donald Marler, 26. and Francis Wirt, 24. Services for Simpson were at Chilhowee, 30 miles east of Harrisonville. His long-haired pallbearers raised arms in clenched fist salutes as they carried his casket from a chapel. Sheriff Bill Gough, wounded in a shoulder and leg by Simpson’s gunfire, is in good condition in the hospital. The two bank employees suffered only superficial wounds and were not hospitalized. No motive for the shooting has been established. Simpson was a friend of some long-haired youths who were arrested in an altercation on the square Thursday night. Gough said Simpson posted bond for some of the youths and quoted him as saying. “Simpson is my name and revolution is my game.” Mayor M. O. Raine said the young people have gathered on the square regularly. “They’ve sworn at elderly women, played football in the street, obstructed traffic and blocked the doorways to stores.” Both the mayor and John Leach, service station owner, said seven or eight men from 20 to 30 years old have gathered Harrisonville teenagers around them and are responsible for incidents on the square. “Our young people are good people,” Leach said, “but they are being led like sheep to a slaughter." He said a teenager working for him told him Friday morning before the killing that “trouble from outside” was coming. “If the kids knew something might happen why didn’t they tell the police?” Leach said. “Those officers might have had a chance if they were on the alert for trouble.” The city council extended the curfew through Monday night, but the mayor said he hoped there will be none tonight. “I hope this will quiet them down," Raine said of the youths. “Maybe they’ve gotten some message from ail this. I hope it will make them stop and think. It could have been them, or their brother or sister or parents.’’
|1972 Shooting in Harrisonville MO by Charles R. Simpson, Chilhowee, MO Map of Shooting Pat|
(The Morning, KANSAS CITY STAR) Three young men will be buried in Harrisonville and Holden, Mo., today, apparently the victims of a year of antagonism between long-haired youths and the citizens of Harrisonville which flared into violence Friday night. The killings came as a shock to this town of 5.000 persons, but Bill Gough, Cass County sheriff. who was wounded in the ; gunfire, said yesterday he could see the trouble coming. “This last year we've had more trouble than usual with young people,” he said from his bed in the Cass County Hospital, j where he is recuperating from bullet wounds in the shoulder and leg. “The kids were defying . t he law. Now most of them are ¡real good kids, but a few were trying to test us, to see how much they could get away with, I think. It was mostly the stuff all kids do—racing their cars | around town and making noise. “I got lots of calls from ladies and girls who said they were afraid to walk around the town square with all these kids hanging around. I've heard they blocked traffic on the sidewalks and swore at people, but I never observed such activities. Until Thursday night (when eight youths were arrested for disturbing the peace) I don't think there was any violence at all. “I figured it was leading to a major problem, but I was hoping it would cool off.” Today the citizens of Harrisonville, who have been under a 6 p.m. to 6 a.m. curfew the last three nights, are asking themselves why it happened. One thing is clear—something so enraged Charles R. Simpson, 25, of Holden, that he took up an M-l carbine and turned Harrisonville’s town square into a battlefield, killing two police officers, wounding Gough, two bank bookkeepers and a laundry delivery man, and finally placing the rifle barrel in his mouth and killing himself. »Sheriff Gough said yesterday from his hospital bed that he ; had just taken off his revolver j and was sitting down to read ;the evening newspaper in his • quarters behind the sheriff’s office. “What I heard didn't sound like gunfire,’’ he said. “I thought it was someone beating a piece of tin with a stick. When I stepped outside I saw him coming around the corner of the nursing home, firing at me.” Gough, 46, said when the bullets struck him In the right shoulder and leg he fell to the ground, but stood up and walked into his quarters to retrieve his revolver. He pulled his wife, Mrs. Betty Gough, onto the floor, but by that time Simpson had stopped firing and was running east toward the square. He stopped in front of the Harrisonville Retirement Home. He shot himself. In an emergency session later (See RIFT on Page 6 Continued From Page 1) Friday night the city council placed the city under the curfew. James Thompson, city counselor, said the move was to reassure citizens no further violence would take place. Sheriff Gough yesterday said he believes that Simpson attacked him because he was the man who ran the jail where eight long-haired young men were held after a fight Thursday in front of a drugstore on the town square. Those arrests were significant of many of the problems which have existed between the youths and other citizens of Harrisonville. Police officers, among them Marler and Wirt, broke up the fight with billy clubs, arresting eight of the men but not a town square merchant who was ithere. It was Charles Simpson who Friday morning posted $1,500 of the $1,880 bond to get his friends out of the Cass County Jail. Sheriff Gough said the events which led up to Friday’s tragedy began months ago, and rests in the fear and distrust with which the citizens of Harrisonville and the young persons regard each other. Sheriff Gough said for the last year he had foreseen trouble, trouble which started when many of Harrisonville’s young
Death Swift in Harrisonville
In less than three minutes Friday night in Harrisonville three men died and four other persons were wounded as Charles R. Simpson, 25, began firing with an M-l carbine in downtown Harrisonville. An outline of Friday night’s events: About 5:50 p.m. Simpson approached two Harrisonville police officers, Donald Marler, 26, and Francis Wirt, 24, in front of the Allen Bank & Trust Co. on the northwest corner of the town square. He opened fire on the two officers, who fell, and then fired five or six shots into each of their bodies. Inside the bank J. D. Lindsey, a vice-president, turned to the window when he heard the shots: “I saw the police fall and saw the man standing over them firing into their bodies. Then he walked to the open doors of the bank and began firing straight back toward the rear of the building where the bookkeeping section is located.” Simpson walked about 30 feet into the lobby, past two tellers, a man customer and a woman customer and her three children, all of whom crouched behind furniture or in the teller’s booths. Lindsey said Simpson did not aim the gun but fired straight at the rear of the bank. He said all the bullets struck the rear wall in a circular area no more than eight feet in diameter. Nine spent shells were found on the bank floor. Miss Mary Ellen Stuart, 22, one of two bookkeepers wound-ed, said she was at her desk at the rear of the bank. “I didn’t recognize the sound,” she said. “I thought it was a car backfiring or something. Then I looked up into the lobby and saw him standing in front, firing back at us. I pushed Mrs. Roach (Mrs. Deborah Roach, also wounded) down behind my desk. “When the shooting stopped Mrs. Roach said, ‘I think I’ve been shot.’ She had blood on the back of her dress. After the man left I stood up and saw that I had blood on my side and realized I'd been shot, too.” The two women were treated for superficial wounds. Simpson walked west toward the Cass County sheriff’s office. Halfway down the block he met Orville Allen, who had stepped out of the Capitol Cleaners j where he worked as a delivery man. Simpson fired at least two shots at Allen, wounding him in the leg and chest. Simpson ran to the sheriff’s office, wounding Sheriff Bill Gough, who had stepped outside. Simpson turned, ran back up the street, stopping in front of the Harrisonville Retirement Home. Simpson placed the rifle barrel in his mouth and pulled the trigger, killing himself. men returned to town after, serving in the armed forces or studying at college. Most moved back in with their parents, but their long hair, beards, and lifestyle (which many of the youths admit does not include a job) grated against the hardworking, conservative style of small town life. Another factor in building tension was the city council’s passage last month of an ordinance which prohibits the gathering of more than three persons in the town square. The ordinance was enforced against the young persons, but apparently not against others, notably elderly men and women who sunned themselves for hours around the courthouse. Bill Davis, Harrisonville police chief, who refused to talk about the shootings Friday night or Saturday, yesterday consent ed to a brief telephone interview. Davis said police had been clearing the young persons out of the square area because “citizens and business people were complaining that the youths were loitering around the square, ruining business. “They don’t like the kids up there and they’ve pressured U5v into doing something about it,” he said. When asked who “they” referred to, Davis rep-lied: “The merchants and citizens. They’re who we work for. “We’ve had lots of complaints in the last year about the kids yelling obscenities and performing lewd acts in public, but I’ve never witnessed any myself. We’ve been in the middle.” Although they do not often Continued on
Rift Between Young, Old Remains as Town Buries 3 s Shooting Scene This aerial photograph of downtown Harrisonville shows the path of Charles R. Simpson, 25, who Friday killed two police officers and wounded four other persons before killing himself. Simpson shot the two officers outside the Allen Bank & Trust Co.
(1), then fired several shots inside the bank. He then ran west, wounding a delivery man outside the Capitol Laundry (2). He continued running to the Cass County sheriff's office (3), where he wounded the sheriff and then ran back east, stopping in front of a retirement home (4), where he killed himself. (Star photo by Joe Wellington)
Rift Between Towns Young, Old Continued from Preceding Page
agree with Chief Davis, Simpson’s friends also believe the two slain policemen were "caught in the middle.” “Marler could be a real decent guy,” John Risner, 23, said of the slain officer. “I used to talk to him a lot when he was out of uniform. He was real nice, but when he put on his uniform and went back on the street he started acting like a policeman again.” Risner also complained of television coverage given the killings. “Some television newsman said there was more violence expected here,” he said. ‘‘When you say something like that you get people so scared they make the violence themselves.” George Russell, 24, said the fears of Harrisonville’s citizens were unfounded. “These people have fabricated rumors until this happened,” he said. “There are two types of law enforcement here, one for common citizens and one for us. That’s the point we’ve been telling our parents and teachers for a long time. “They’re trying to move us out of town. Police officers have told me that. Move on to where? I’ve lived here all my life. The reason I came back here was because it’s home. I don’t want to go to a big city,. but a long-hair is so much more obvious here.” Russell said long-haired young persons were regularly stopped in their cars and on the sidewalks and had been told to keep out of parks. He said one officer had advised him “Anytime you’ re ready to have it out we’ll meet you on the street.” Chief Davis last night denied there had ever been any harassment of young persons and that if cars or individuals were stopped such actions were taken for good reasons. “The reason we stick together,” Russell said, “is that we’re afraid to walk around alone.” He said probably only 50 persons in Harrisonville qualify as “long-hairs.” Simpson went berserk, his friends say, because he could not stand the pressure any more. Risner described him as ‘probably the best man I ever knew.” None of Simpson’s companions thought he ever had acted in a psychotic manner and most said he was level-headed, although he was not reticent about voicing his unhappiness with residences and which its with the treatment of young persons in Harrisonville and his contempt for police officers. “He was an odd person,” Chief Davis said. “You couldn’t talk to him. He just had his own mind, I guess.” “He was real smart,” Sheriff Gough said of Simpson. “Very intelligent. But you know what he said when he posted bond for his friends? He said ‘Simpson’s my name, revolution’s my game.’ He was belligerent, trying to pick a fight. But I think the shooting just happened. It wasn’t planned or anything.” Even though the police regard the killings as the actions of a lone, berserk man, some Harrisonville citizens are afraid. Risner said: “They’ve been trying to run me out of this town since I got out of the service a year ago. I guess they won the war. I’m going to leave. But we’re just as much a part of the community as anyone else.” Russell, however, says he will not leave and says he has met with an American Civil Liberties Union lawyer to help defend the many young persons who have had run-ins with the Harrisonville police. “I’m sure we’re in for more trouble if we stay, but I’m going to stay,” he said. “But we need help down here. What’s going to happen when the frustrations really set in.
DONALD L. MARLER leaves his wife, Mrs. Darlene K. Marler, and a son, Nathan Todd Marler, both of the home, and his parents, Mr. and Mrs. Lloyd F. Marler, Creighton. Services will be at 10:30 a.m. today at Our Saviour Lutheran Church in Harrisonville; burial in Garden City Cemetery in Cass County.
Donald Lee Marler
Donald Lee Marler
FRANCES E. WIRT leaves his parents, M. Sgt. and Mrs. Frank E. Wirt, Sr., Fairchild Air Force Base, Wash.; four brothers, Daniel Wirt and Christopher Wirt, both of Fairchild; Sgt. Michael J Wirt, Norton Air Force Base, Calif., and Sgt. Patrick Wirt, with the U.S. Army in Vietnam. Services will be at 2:30 p.m. today at the Lady of Lourdes Catholic Church, Harrisonville; burial in Orient Cemetery, Harrisonville. Francis E. Wirt
Orville Thornton Allen 1914-1972
Orville Thornton Allen 1914-1972
Mrs. Junetta Allen, of Garden City, Missouri, was born June 18, 1917 at Dayton, Missouri, the daughter of William Henry and Nellie Maude (Smith) Smith. She departed this life Sunday, October 15, 2006, at her home, at the age of 89 years, 3 months and 27 days.
On June 29, 1940, June was united in marriage to Orville "Jug" Thornton Allen in Yuma, Arizona.
June was currently serving as City Tax Collector for the City of Garden City, an elected position she had held since 1974. Earlier, June and Jug owned and operated Allen's Cleaners and Beauty Shop in Garden City. She had also been employed by the Garden City Garment Factory. June attended Dayton Public Schools and was a 1935 graduate of Garden City High School. She was a member of the First Christian Church, Order of the Eastern Star Chapter #340, Matron's Club, Bridge Club, Pinochle Club, Cass County Democratic Committee Woman and the Garden City Cemetery Association, all of Garden City. June was well known for serving as Treasurer for many of these organizations. She enjoyed going on many trips with Bishop Tours and later, Allen Tours. June served as the correspondent for the Cass County Democrat-Missourian and the Garden View, a position she enjoyed very much. She was selected as "Woman of the Year" for Garden City in 1999. June enjoyed playing cards and was very proud to be "Grandma Grape" to her grandchildren and great-grandchildren.
Besides her parents, she was preceded in death by her husband, Jug, on April 24, 1972; a granddaughter, DeAnna Allen on June 27, 1965; three brothers, Vernon, Oren and Jinks Smith and a sister, Alma Smith.
She is survived by four children, Sharon Yoder and husband Joe, Garden City, Ron Allen and wife Jeanne, Locust Grove, Virginia, Doug Allen and wife Gloria, Lee's Summit, and Linda Mueller and husband Ron, Garden City; eight grandchildren, Brad Jones and wife Kim, Randy Jones, Jim Allen and wife Kris, Cristy Swanson and husband Brad, Kelly Lorenz and husband Chuck, Jeff Mueller and wife Carrie, Ryan Allen and wife Amy, and Barry Mueller and wife Bridgette; eight great-grandchildren, Tyler, Aidan, Justin, Delaney, Katie, Kari, Joslyn and Jillian; a sister, Maggie Yoder, Lee's Summit; many nieces and nephews and a host of friends.
Funeral services were held Wednesday, October 18, 2006 at the Dickey Funeral Home, Garden City, Missouri with burial in the Garden City Cemetery.
Fines Levied Without Mention Of Shooting
The Daily Standard, Sikeston, Mo. Wednesday, June 14, 1972 HARRISONVILLE, Mo (AP) No one in the courtroom mentioned the crackling gunfire that killed four persons and wounded three others on the Harrisonville square April 21, but the memory was there. After the testimony was completed Monday night in city court, Judge A. J. Anderson found six young Harrisonville men guilty of disturbing the peace. He levied fines of $50 on George Russell, 24, Gary Hale, 24, and his brother, Steve Hale, 17. Fined $50 and also placed on probation 60 days were John Thompson, 22, Edwin Allen, 24, and Harry Miller 21 Charges were dropped against Ronnie Thompson, 18, brother of John Thompson. Doug Sned. 17, had pleaded guilty earlier and did not appear. The eight were arrested April 20 after a fight on the square between John Thompson and Don Foster, manager of the Sears store. The arrests climaxed growing unease among merchants about gatherings of long-haired young persons on the square. The next morning, bonds for most of the eight were posted by a friend, Charles Simpson, 25, of Holden, Mo. That afternoon Simpson, carrying an M-l carbine, topped out of a car on the Harrisonville square, killed two policemen with a burst of gunfire, sprayed the interior of a bank with bullets, wounding two women. Then he fatally wounded a deliveryman, and wounded Sheriff Bill Gough, and finally stuck the rifle muzzle in his mouth and killed himself. The policemen, Donald Marler, 26, and Francis Wirt, 24, had helped arrest the eight the night before The deliveryman, Orville Allen, 58, apparently just happened to be in Simpson’s way as the berserk gunman went looking for the sheriff. Police estimated Simpson fired 50 shots and had 100 more cartridges in his surplus army jacket. In court Monday night Foster and his father, Lloyd Foster, who owns a drug store next to the Sears store, testified the fighting occurred when about 25 persons refused to move from in front of the Sears store. Don Foster said he asked them to move and “they started cussing me.” Lloyd Foster said he heard a disturbance and went outside. He said John Thompson swung at him, starting the fight. The defendants denied they were blocking the doorway and said they did not use profanity. A defense witness, Don Turner, testified Don Foster drove up, got out of his car and was “arrogant and obnoxious.” “It seemed like he was perturbed and he started yelling,” Turner said. “He told everybody to get off.” Sgt. Jim Harris, policeman, said he broke up a scuffle between John Thompson and Don Foster, hitting Thompson with his night stick. He said the arrests were made when Lloyd Foster stated he wanted to sign a complaint against the eight. Harris said Thompson asked him to arrest Don Foster, but he did not do so. Simpson’s father, Charles B. Simpson of Holden, was among those at the trial. He said he still did not understand what happened to his son. “I don’t carry any grudge,” Simpson said. “It's just one of those terrible things " Two reconciliation meetings have been held between city council members and the bi-racial long hairs since the shooting. John Risner, spokesman for the street people, said at the first one April 26 that they would “start spreading more love and less hate.” A city councilman asked the young people to go easier on loud obscenities, heavy petting and indecent exposure. He promised in turn that the police would not bear down on them so hard.
CHARLES R. SIMPSON leaves his father, Charles B. Simpson, Holden; his mother, Mrs. Helen Simpson, Riley, Kan.; a brother, Elwyn Simpson, Holden, and a sister, Mrs. Marla McLanahan, Riley, Kan. Services will be at 2 p.m. today at the Cook-Ward Chapel, Chilhowee, Mo.; burial In Wall Cemetery, Holden.
Legal Case Link
ALLEN v. DOROTHY'S LAUNDRY AND DRY CLEANING CO.
No. KCD 27279.
523 S.W.2d 874 (1975)
Junetta ALLEN, Respondent, v. DOROTHY'S LAUNDRY AND DRY CLEANING COMPANY, Employer, and Miller's Mutual Insurance Agency of Illinois, Insurer, Appellants.
Missouri Court of Appeals, Kansas City District.
May 5, 1975.
Motion for Rehearing and/or Transfer Denied June 2, 1975.
Application to Transfer Denied July 14, 1975.
Attorney(s) appearing for the CaseJohn C. Russell, Raytown, for appellants.
John C. Milholland, A. J. Anderson, Harrisonville, for respondent.
Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
ROBERT R. WELBORN, Special Judge.
Workmen's Compensation proceeding. Referee of Division of Workmen's Compensation denied claim for death benefit. Industrial Commission affirmed ruling of referee. Circuit court reversed and ordered allowance of claim. Employer and insurer appeal.
The decisive facts are set out in the findings of the referee, as follows:
"I find from the evidence that on April 21, 1972 [Orville T. Allen] was shot by a berserk rifleman on the streets of Harrisonville, Missouri, and that as a result of such shooting the employee died on April 24, 1972. At the time of the shooting the deceased was in the process of delivering laundry to Capitol Cleaners, a laundry and dry cleaning establishment located just off of the square in Harrisonville. Just prior to the shooting of the employee, the rifleman had shot and killed two Harrisonville policemen and subsequently shot and wounded the sheriff of Cass County. For a period of several months prior to April 21, 1972 the square in Harrisonville had been frequented by groups of young people described as `hippies' who on occasion blocked traffic on the streets around the square, directed profane language at citizens around the square and engaged in other breaches of the peace. However, there were no incidents involving the use of guns prior to the shooting on April 21, 1972. The killers' (sic) motive is obscure, but the evidence would tend to indicate that he was a radical protestor of some sort rebellious against society in general.
"The first issue for decision is whether the deceased Orville T. Allen, was an employee of the alleged employer, Dorothy's Laundry and Dry Cleaning Company, while engaged in delivering laundry pursuant to an arrangement for such delivery between the alleged employer and Capitol Cleaners. [The affirmative finding on this issue is not controverted. The basis of the finding is, therefore, omitted.]
"The second issue for decision is whether the employee sustained an accident arising out of his employment. The claimant [widow of employee] contends that the case is compensable under the so-called `street risk doctrine' and/or the `assault doctrine', and under the latter more particularly since the 1969 amendment of Sec. 287.120 RSMo 1969 [V.A.M.S.] defining the term `accident' to include `injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.'
"The `positional risk theory' which makes an accident compensable if claimant's employment caused him to be at the place where it happened has not been accepted or followed in Missouri. Liebman v. Colonial Baking Company, [Mo.App.] 391 S.W.2nd, 948. Likewise, the Liebman case is authority for the proposition that the risk of assault is not a hazard of the street within the meaning of the `street risk doctrine.' I find, therefore, that claimant cannot recover on either the `positional risk theory' or `street risk doctrine' upon the facts presented.
"With respect to the `assault doctrine' I find that the case at hand is one of `neutral origin', meaning that the assault was not attributable to the employment on any more rational basis than that the employment offered convenient occasion for the attack to take place. Such an assault has not been heretofore held compensable in
[523 S.W.2d 876]
"I find that the assault upon the employee was unprovoked and accordingly conclude that he sustained an `accident' as that term is contemplated by Section 287.020-2 and Section 287.120-1 as amended, RSMo 1969, [V.A.M.S.]. However, I further find such accident did not arise out of the employment. If it was the intention of the legislature to change the law which heretofore made situations like those found in the Liebman case and Kelley v. Sohio Chemical Company, [Mo.] 392 S.W.2nd, 255 not compensable, the term `accident' used in the amendment, should have been expanded to read `accident arising out of and in the course of the employment.'"
The circuit court disagreed with the referee's conclusion as to the meaning and effect of § 287.120, subd. 1, RSMo 1969, V.A.M.S., and concluded that the 1969 amendment, referred to by the referee, made an unprovoked assault in the course of employment a compensable accident. This was a conclusion of law and appellants' contention that the circuit court's action was a prohibited substitution of its conclusion for a factual finding of the referee is without merit. § 287.490, subd. 1, RSMo 1969, V.A.M.S.
The language of § 287.120, subd. 1, referred to by the referee and the matter at the crux of the issue here presented, is the last sentence of the subparagraph, which in its entirety reads:
"If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term `accident' as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
The last sentence was added by the General Assembly in 1969. Laws of Mo. 1969, p. 390. The amending legislation made this sole change. In attempting to arrive at the proper meaning and effect of the change, a look at the law as it stood at the time is in order.
In Liebman v. Colonial Baking Company,
391 S.W.2d 948(Mo.App.1965), the law of this state regarding the compensability of injury resulting from assault upon a workman is well summarized (391 S.W.2d 951-952):
"The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson's Workmen's Compensation Law, Sec. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly [Kelley] v. Sohio Chemical Co., Mo.App.,
383 S.W.2d 146, 147.
"1st: Those which are invited by the dangerous nature of the employee's duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri. * * *
"2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compensable in Missouri. * * *
"3rd: Irrational, unexplained or accidental assaults of so-called `neutral' origin, which, although they occur `in the course of the victim's employment, cannot be attributed to it on any more rational basis than
[523 S.W.2d 877]
"In every Missouri case involving an assault of `neutral' origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man's employment than to another's unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former."
A short time later, the assault doctrine was before the Supreme Court en banc in Kelley v. Sohio Chemical Company,
392 S.W.2d 255 (1965). In that case, employee, alone in the office of her employer, heard footsteps and when she turned was struck in the head. She was found unconscious sometime later. The employee did not know the assailant. Nothing had been disturbed in the office. In affirming the denial of compensation the court held that the claimant had failed to sustain her burden "to show some direct causal connection between the injury and the employment." 392 S.W.2d 257. Two judges dissented in Kelley. They would have applied the rule that "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; * * *." 392 S.W.2d 259.
Appellants' first contention here is that the 1969 amendment did not alter the requirement of the remainder of the section that the assault arise out of and in the course of the employment. Without conceding that it in fact does so, appellants alternatively advance the suggestion that the amendment might in effect provide a statutory basis for the presumption which the dissenters sought to apply in Kelley, but still permit a rebuttal of the presumption by evidence showing that the assault did not arise out of the employment. They contend that there was evidence here which explained the assault so that the referee was authorized to conclude as he did that the injury was not the result of an accident in the course of employment.
The respondent predicates the 1969 amendment upon a perceived necessity to change the law as applied in Kelley. She contends that the legislature by the amendment intended to and did make "unprovoked assaults" compensable accidents. Her contention is that the meaning and effect of the amendment is the same as it would have been had the legislature provided: "The term `accident arising out of and in the course of his employment' shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
As a starting point for the resolution of the problem presented, it must be presumed that the legislature, by the 1969 amendment, intended to change or clarify the existing law. "In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute." 73 Am.Jur.2d, Statutes, § 249, p. 422 (1974). The difficulty here arises because the change was attempted to be made by addition of a statutory definition of the term "accident" as used in § 287.120. The term "accident" is elsewhere defined in § 287.020, subd. 2. That is the definition which has given rise to the problem presented by cases such as the "abnormal strain" situations. See Carroll, "Present Concept of Accident under Missouri Workmen's Compensation Law,"
[523 S.W.2d 878]
The problem with assaults was not whether the incident was an accident, but whether it was an accident "arising out of and in the course of his employment" under § 287.120. The analysis of the assault cases in Liebman, supra, clearly shows the problem which those cases presented. However, if appellants' primary analysis of the effect of the 1969 amendment is to be accepted, the effect of the amendment would be to have written into § 287.120 a superfluous definition of the term "accident," while retaining the requirement that the assault arise out of and in the course of employment. To adopt such a construction would convict the General Assembly of having enacted a meaningless piece of legislation, a result to be avoided if any other logical, rational construction of the amendatory legislation is permissible.
Appellants' alternative suggestion that the amendment was intended to apply only to "unexplained" assaults, such as in the Kelley case, would require the insertion of that limitation in the amendatory langage, which is directed only at "unprovoked" assaults.
Turning to respondent's construction of the statute, she relies on the presumption that the amendment was designed to have some meaning and effect. She also points to § 1.010, RSMo 1969, V.A.M.S., calling for the liberal construction of acts of the General Assembly "so as to effectuate the true intent and meaning thereof." Although not mentioned by respondent, note also is to be taken of § 287.800, a legislative declaration applicable expressly to the Workmen's Compensation Law, calling for its liberal construction "with a view to the public welfare * * *." Respondent argues that the legislature clearly intended to bring injury or death resulting from an unprovoked assault within the coverage of the Workmen's Compensation Act, and that the legislature accomplished this purpose by making the definition of "accident" applicable to the term "as used in this section," inasmuch as the term is used in § 287.120 to describe only "compensable accident." She concludes that since the term "accident" in § 287.120 is used in connection with the language "arising out of and in the course of his employment" the meaning of the amendment is the same as if it actually read: "The term `accident arising out of and in the course of his employment' shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
Acceptance of this construction is difficult, however, inasmuch as it would eliminate both the requirement that the assault occurred in the course of employment and that it arise out of the employment. Inasmuch as the problem in assault claims arises with respect to the latter requirement, there would appear to have been no reason for the elimination of the first requirement, which was found to have been met in this case.
Although the language of the 1969 amendment leaves considerable to be desired, considering the problem which the amendment appears to have been intended to solve, the requirement that effect be given the amendment, if at all possible, the requirement of liberal construction of the law, and the oft-stated principle that doubts in the construction of the Workmen's Compensation Law are to be resolved in favor of the employee (Henderson v. National Bearing Division,
267 S.W.2d 349, 853 (Mo.App.1954); Baer v. City of Brookfield, 366 S.W.2d 469, 471 (Mo.App.1963); Todd v. Goostree, 493 S.W.2d 411, 416[1-6] (Mo. App.1973)), the trial court properly construed the amendment to eliminate in this case of a "neutral" unprovoked assault which arose in the course of employment, the necessity for an affirmative showing
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