dissenting. My disagreement with the majority decision in this case begins with the opinion’s statement that “the issue before us is whether the injury and death of Thomas Daniels was an accidental injury arising out of and in the course of his employment.”
If that were the issue, and if the decision were ours to make, I might agree with the results reached by the majority. But I think the issue before us is whether the appellees have shown that there is no genuine issue as to any material fact as to whether the injury and death of Thomas Daniels arose out of and in the course of his employment.
To determine if that burden has been met requires more than the recognition that summary judgment is an “extreme remedy.” The Supreme Court of Arkansas has said that the theory underlying the motion is the same as that underlying a motion for directed verdict and that the evidence must be viewed “in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.” Russell v. City of Rogers, 236 Ark. 713, 368 S.W.2d 89 (1963). If the evidence is not in material dispute, but inconsistent hypotheses might be reasonably drawn and reasonable men might differ, summary judgment is not proper. Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978); Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W.2d 435 (1965). And if there is any doubt whatever as to the existence of issues of fact, summary judgment should be denied. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S. W.2d 89 (1979).
On the other hand, when the question is before, or on appeal from, the Workers’ Compensation Commission we have an entirely different point of view. For example, Williams & Johnson v. Nat’l. Youth Corps., 269 Ark. 649, 600 S.W.2d 27 (Ark. App. 1980), involved two boys working in a federally funded work-study program supervised and administered by a local school district. They were injured while riding home in the school bus after work. The commission allowed their claims for compensation but the circuit court reversed. This court reversed the circuit court and said:
It was the duty of the commission to draw every legitimate inference possible in favor of the claimants and to give them the benefit of the doubt in making factual determinations.... Further, the commission in considering a • claim is required to follow a liberal approach .... (Citations omitted.)
Also, the court said, the decision of the commission must be affirmed if supported by substantial evidence and in making that determination the evidence must be viewed in the light most favorable to the findings of the commission.
Here, the mother of Thomas Daniels testified by deposition that shortly before his death, Thomas started working at the Handicapped Center and would ride the van from his home to the center in the mornings but he did not ride the van home in the afternoon because he did not get off work until after the van left. It was her testimony that she made arrangements for her mentally and physically handicapped son to ride the van and she did not understand this was part of his work.
The majority cites the cases of Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S.W.2d 778 (1948) and Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S.W.2d 646 (1950) in support of their holding in the instant case that the motion for summary judgment was properly granted. Blankinship simply held that the finding of the commission was supported by substantial evidence and Owens held that the commission’s finding was not supported by substantial evidence because it was undisputed that free transportation was part of the employment contract.
We are not, however, reviewing the findings of a Workers’ Compensation Commission and we should not apply a rule that draws every legitimate inference in favor of coverage and affirms the commission if there is any substantial evidence to support its findings. We are reviewing the granting of a motion for summary judgment and we should apply the rule that says we must resolve all doubts and inferences against the moving party and if there is any doubt as to the existence of issues of fact, the motion should be denied. In my opinion, the application of that rule means the motion in this case should have been denied.
Cooper and Cloninger, JJ., join in this dissent.