Potlatch Forests, Inc. v. Smith

• Decision Date: 13 January 1964
• Docket Number: No. 5-3099,5-3099
• Citation: 374 S.W.2d 166,237 Ark. 468
• Parties: POTLATCH FORESTS, INC., Appellant, v. Sylvester SMITH, Appellee.
• Court: Arkansas Supreme Court

Page 166

374 S.W.2d 166

237 Ark. 468

POTLATCH FORESTS, INC., Appellant, v. Sylvester SMITH, Appellee.

No. 5-3099.

Supreme Court of Arkansas.

Jan. 13, 1964.

Rehearing Denied Feb. 3, 1964.

Williamson, Williamson & Ball, Monticello, for appellant.

Huey & Rothwell, Warren, for appellee.

HARRIS, Chief Justice.

This is a Workmen's Compensation case. Sylvester Smith was employed by Potlatch Forests, Inc., and contends that on September 19, 1961, he sustained a compensable injury, which resulted in the loss of his right eye. Appellant company controverted the claim. Contending that the injury did not arise out of, and in the course of, his employment. The referee heard the evidence, concluded that the claim was compensable, and entered an order accordingly. The company appealed to the full commission, and that body found that a preponderance of the evidence sustained appellant's contention that Smith's injury did not arise out of, and in the course of, his employment. The referee's opinion was therefore reversed, and the claim for compensation denied and dismissed. Thereafter, claimant appealed to the Bradley Circuit Court, and the court reversed the finding of the Commission and remanded the case back for orders consistent with the award of the referee. From the judgment so entered, the company brings this appeal.

The only question before this court is whether there was any substantial evidence to support the finding of the Commission. Preliminarily, we might dispose of one of the arguments advanced by appellee. It is pointed out that the referee, who originally tried this case, heard all of the witnesses in person, both for claimant and the company, and, on appeal, no additional testimony was presented to the Commission. Appellee states that the referee, therefore,

'* * * was the sole and exclusive judge of the weight of the evidence and credibility of the witnesses. In case of contradictions or inconsistencies he had the right to accept the testimony of the witnesses he believed to be most worthy of credit and reject the testimony of those he believed less worthy of credit, or accept any part he believed true and reject any part he believed untrue. He was in position to take into consideration all the surrounding circumstances of each witness, and of particular importance, the manner and demeanor of each witness on the witness stand. * * *'

This contention must be rejected. As recently as October 21 of last year, we had occasion, in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528, to comment upon this contention, stating,

'We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee.'

Cases are then cited in support of the statement. Thus, as stated at the outset, we can only concern ourselves with whether the finding of the full Commission was supported by any substantial evidence.

Claimant's case was primarily dependent upon the testimony of Smith himself. Appellee testified that he commenced work for Bradley Lumber Company in 1952, and had been working for that company and its successor, Potlatch, since that time. ¹ He stated that on September 19, he worked from 6:00 A.M. until 2:30 P.M. His duties consisted of pulling lumber off 'the green chain.' At 2:30, he 'punched out,' but waited around on the dock for about ten minutes to determine whether all night shift workers appeared, it being his purpose to put in extra time by work on the night shift if any workers were absent. During this period, he sat and smoked a cigarette. After observing that all of the night crew had reported in, he got up and started toward his parked car, walking underneath the conveyer belt. After walking ten or fifteen feet, his foot struck a stick, which 'flew up' and hit him in the eye. Subsequently, he stated, 'I remember my feet hitting the stick and something flew up and hit me in the eye is all I can say.' The witness said he could not see out of his eye, but that he did not have any paid at that time. He could feel something 'running' out of the eye, and wiped it with his handkerchief, but walked right on to his car and drove bome. Smith testified that when the foreign object his him in the eye, he sat down a few minutes, and then walked on, no pain occurring until after he reached his home. Appellee stated that he was able to drive his car normally, and that it took him about five or six minutes to drive from the plant to his house. Claimant's wife took him to the hospital about 3:00 P.M. Around 4:00 o'clock, Smith reported the accident to Herbert Bliss, yard foreman.

Smith's wife, Velma, testified that her husband drove up to the house, but didn't get out of the car. When she inquired as to the reason, he complained of his eye, and she then 'taken him out of the car and carried him in the house.' Velima then drove her husband to the hospital. This testimony was corroborated by Rosa Benson, a neighbor.

Gilbert Block, a resident of Warren, testified that he (Block) had an artificial right eye, having lost the sight of his eye while working on his automobile, 'and a piece of steel flew off and hit me and went through it.' Block stated that he did not feel any pain in the eye until four days after it happened, 'after Dr. Lanford took it out.'

Smith's eye was treated by Dr. James W. Marsh of Warren, who stated that he understood Smith to say that 'something flew out of the clock (time clock) and hit him. But I am not at all sure of this because he was in pain and does not speak very clearly, and I didn't question him on the history.' Dr. Marsh found 'a laceration of the center of his cornea which was transverse with a slight ellipse. It had penetrated all the way through his cornea and had dislodged the lens to some extend so that the lens was partially protruding through this laceration. There was fluid escaping from the inside of the eye.' The iris was not struck by the object. In reply to a question as to whether he had any opinion concerning whether the object which caused the eye injury came from the ground level, the doctor replied, 'I don't think it could have.' As the basis for this conclusion, Marsh stated that 'the object hit him in the central cornea and went through the cornea and through the lens with no injury at all to the iris. And the angle of an object coming up from ground level from near him would have been such that to have penetrated both the central cornea and the lens would have caused some injury to the iris.' The doctor was of the view that the object came from approximately eye level, rather than from the ground. He likewise was of the opinion that the injury was not caused by a stick. The physician also testified that, in his judgment, initial pain would have been marked and severe, and probably would have continued from the time of the occurrence until Smith was taken to the hospital.

Dr. Marsh, after rendering emergency treatment, immediately made arrangements for Dr. W. R. Nixon, a Pine Bluff ophthalmologist, to see the patient. The history taken by Dr. Nixon reflected that Smith had stepped on a stick which 'flipped up' and struck claimant in the right eye. Smith was complaining of intense pain, and, most of the time, kept both eyes shut, particularly the right one. The doctor testified that at the time he saw appellee, he (Nixon) wondered about the injury being caused by any object from the ground. 'Because when something flips up, hitting the eye, it would strike at an angle. Unless he was looking down at the ground it was rather difficult for it to go through the eye without perforating the iris.' The doctor stated, 'I wouldn't necessarily say it hit at eye level. He could have been lying on his back and it dropped in his eye.' Nixon was of the opinion that the object 'would have to be reasonably sharp or thrown with extreme force to penetrate the eye, one or the other, or both. A blunt object hitting the eye would require a great deal of force to penetrate the eye. They are a lot tougher than we think. For instance, a beebee gun so often hits the eye and bounces off. They cause a hemorrhage and damage, but bounce. * * * Another thing, this thing apparently hit between his lids, and the eye has a rapid blink reflex. It has to hit with pretty good speed to hit the eye without damaging the lids.' The doctor was of the opinion that the injury described by Smith would have caused severe pain for at least a few minutes, probably 'five to ten minutes.' Thereafter, he stated that the eye certainly wouldn't feel normal; there would be a certain amount of discomfort.

'I would think that, after looking at him, that the man was unable to see immediately from the injury out of that eye. Of course he has the other eye. He has been a two-eyed man and suddenly becomes a one-eyed man for all purposes. I am sure he has a loss of depth perception, plus peripheral vision. He could still drive. He would certainly be doing something a little bit difficult because he has had a sudden and abrupt change that he has never had to cope with before.'

Efforts were first made to save the sight of the eye, but subsequently, it became necessary to remove it. The testimony of these witnesses comprises the case for appellee.

On behalf of appellant, Arthur Weaver, a fellow employee of Smith, testified that on September 19, at 2:30, he was in the outhouse located across from the 'green chain.' He heard the 2:30 siren blow, and came out a minute later. Weaver stated that he saw Smith, who was walking between the conveyer belt and the parking lot (having already passed under the belt), heading toward the lot. From...