Pinnell Lumber Co. v. Smith

• Decision Date: 05 March 1940
• Docket Number: 16458.
• Citation: 25 N.E.2d 643,107 Ind.App. 686
• Parties: PINNELL LUMBER CO. v. SMITH.
• Court: Indiana Appellate Court

25 N.E.2d 643

107 Ind.App. 686

PINNELL LUMBER CO. v. SMITH.

No. 16458.

Appellate Court of Indiana, in Banc.

March 5, 1940

James L. Murray, of Indianapolis, for appellant.

Donald F. Roberts, of Indianapolis, for appellee.

DE VOSS, Chief Judge.

This court, heretofore on the 7th day of November, 1939, rendered an opinion (23 N.E.2d 283) in this cause and upon appellant's petition for a rehearing, after considering said petition for a rehearing and the authorities, now grants such petition for a rehearing herein, and now renders the following opinion in lieu of said former opinion, to wit:

Appellee filed his application with the Industrial Board of Indiana for compensation for an injury suffered as the result of an accident arising out of and in the course of his employment with appellant, from which accidental injury appellee lost the complete vision of his left eye.

The application was submitted to said Board, composed of one member thereof, and said Board member, having heard the evidence, made a finding and award adverse to appellee.

Thereafter said appellee applied for a review of such award by the full Industrial Board, and said full Industrial Board on review made a finding and award by a majority of said Board, which finding and award of the full Board is as follows:

"And the full Industrial Board, having heard the argument of counsel, having reviewed the evidence taken at the time of the hearing before the single member and the evidence taken at the time of this hearing before the full Board, now finds that on January 26, 1939, while in the employ of the defendant at an average weekly wage of $22.50 plaintiff suffered an injury as the result of an accident arising out of and in the course of his employment, of which the defendant had knowledge; that as a result of said accidental injury plaintiff has suffered the complete loss of vision of his left eye.

"Award

"It is therefore considered and ordered by the full Industrial Board of Indiana that there is awarded plaintiff as against defendant, compensation at the rate of $12.38 a week for 150 weeks, beginning with January 27, 1939, deferred payments to be brought up to date and paid in cash and in a lump sum.

"It is further ordered that defendant shall pay the reasonable and necessary medical, surgical, hospital and nurse's services for the first 90 days following the accidental injury.

"It is further ordered that the defendant shall pay the costs of this proceeding.

"It is further ordered that all compensation by virtue of this award be paid directly to the plaintiff, except as hereinafter ordered paid to plaintiff's attorney.

"It is further ordered that the fees of plaintiff's attorney in this cause shall be: A minimum sum of $10.00, and in addition thereto 10% upon the first $1,000.00 or fraction thereof recovered; 5% upon the second $1,000.00 or fraction thereof recovered and 2 1/2 upon all sums in excess thereof and that said attorney fees shall be paid by the defendant direct to plaintiff's attorney of record, Donald F Roberts, and that defendant shall have credit against the compensation herein awarded plaintiff for all sums paid out as attorney's fees in accordance with this award.

"It is further ordered that the amount of attorney's fees ordered paid herein shall be paid in proportion to the amount of compensation actually paid for the period due."

From this award of the full Industrial Board appellant appeals to this court and assigns as error: That the award of the full Industrial Board of Indiana is contrary to law.

It is contended by appellant that appellee's loss of vision in his left eye was not the result of any accidental injury that there is no causal connection between the blindness in the left eye of appellee and any accidental injury suffered by him.

Appellee testified that he was 29 years old, married, and employed by appellant on the 26th day of January, 1939, and that he had been so employed three years. That on the 26th day of January, 1939, he was unloading dimension lumber for said appellant from a box car; that during the course of that work some dust blew into his left eye. That he was instructed by his foreman to go and see another individual who took him to the office and there administered some treatment to the eye; that immediately thereafter he went back to where the car had been placed, got up on a stack of lumber and was piling the lumber, which was being handed to him from the car by another employee of appellant; that after stooping over and receiving a stick of timber from said employee he raised up and struck his head on a beam of the roof of the shed in which the timber was being stacked. That Mr. Rice, the party who was assisting in the unloading of the timber, said: "You could heard it plum up the corner," meaning the striking of his head; that he became dizzy and could hardly see the timbers when they were handed up to him, and that he went to the doctor and from that day to the present he could not see out of his left eye. That it is completely dark; that prior to that time he had never suffered from any disease and did not lay off nor had he ever had any pains; that the injury occurred around 9 o'clock A. M., and that he was dizzy and couldn't see, but that sight came back to his right eye in about 10 minutes; that his eyes burned and watered and continued to do so until after he went to the doctor, got a prescription and put some of the medicine prescribed into his eyes, and that about 7 o'clock P. M. of the same day his eyes were relieved from the burning.

A part of the evidence of Dr. Carter, one of the physicians who examined appellee after the accident, is quoted verbatim as follows:

"Q. Did he state to you he had received a blow on the back of the

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