The learned Circuit Court made a careful analysis of this case and rendered a lengthy opinion, which I now copy.
Opinion of Circuit Court
"STATEMENT OF FACTS"
"The decedent, Robert Shelton, had been regularly employed by respondent for seven years up to and including January 28, 1942, without loss of time on account of illness. On January 28, 1942, at about 3 o'clock p.m. *Page 1140 and while he was helping load 6"x6"x10' timbers on a box car from a truck about 3 1/2 feet high on which decedent was standing, one of the timbers became unbalanced and shoved decedent backwards off the truck on which he was standing to and on the ground and one of his fellow employees asked if he was hurt and he gazed around for about two minutes and mumbled something and said, `Just another day.'
"Decedent remained on the job for about an hour doing very little work and began to pass blood from his kidneys that same afternoon and never worked another day. He started home and became so sick that he had to stop at a neighbor's house and rest where he again passed blood from his kidneys and thereafter reached his home where he remained until his death on the 11th day of March, 1942. The deceased was evidently badly diseased on January 28, 1942, date of injury.
"1. Myrtle Shelton testified: that she was the widow of Robert Shelton, deceased, and they had been married ten years and ten months and that she and Suzie Maxine Shelton were Robert's dependents; that Robert had worked for respondent for the last past seven years and had been regularly employed during that time; that he never lost a day except one week when he had indigestion. Pay slips showed that he worked fifty hours the last week before his injury. She offered in evidence pay-slips showing his work for 1940, 1941 and 1942.
"On January 28, 1942, Robert came home, passing blood from his kidneys and Robert said he had been lifting heavy timbers and fell off the truck backwards and felt something slip loose or tear loose in his back.
"Palmer Houston carried him to the doctor the next morning and witness went with him and in her presence decedent told Dr. Ward that he was lifting heavy timbers and fell backwards and felt something slip loose in his back and that Dr. Ward prescribed for him.
"On the next day she tried to get Dr. Ward to go to see decedent. Witness stayed at his office practically all day trying to get him to go see her husband. She told the doctor Robert was spitting up blood. The doctor told *Page 1141 her he would call the drug store and she went to the drug store and the doctor failed to call. The next day, which was Saturday, she went out to the mill to see Dr. Ward, got there at daylight, was the first person there, and the doctor asked her what she wanted and she told him that she wanted him to go see her husband, Robert, and the doctor told her he did not know what was wrong with him and for Robert to come to his office. Thereupon she advised Dr. Ward that Robert was not able to come to his office and the doctor refused to go see him.
"On January 29, when Palmer Houston carried her husband to Dr. Ward's office he was forced to wait from nine to twelve o'clock. After the injury decedent was extremely tender across his back, could not lie down at night and had to sit up most of the time. After Dr. Ward would not go to see him, she got Dr. White from Warren to treat him. Decedent passed blood from his nose, mouth, kidneys and bowels. Witness called Dr. Ward one night and he advised her not to call him any more at night; that the doctor's pay had been deducted monthly from decedent's pay check. That her husband died without ever recovering.
"2. John, E. Jones, Negro preacher, testified that he had visited Robert Shelton after his injury and at a time when Robert knew he would not get well and at that time Robert told him he received his injury at the mill, and this witness' testimony as to the manner of the injury and its extent was the same as that of witness Myrtle Shelton, and it is therefore unnecessary to set out that evidence again.
"3. Roscoe McCrary testified that he saw Robert Shelton at Dr. Ward's office on January 29, and carried him home. Deceased made the same statement of facts to him as to how he received his injury as above stated and the same will not be restated here.
"4. Beatrice Juniel testified that she was a sister of Robert Shelton and was at his home on January 31, after the injury and Robert stated to her the manner in which he received his injury, which was as above described, *Page 1142 and that at that time deceased was bleeding from his mouth, nose and kidneys.
"5. Blanchie Clay testified that she had known Robert Shelton for twenty-five years and that his health had been good except for chills and fever before his injury and she heard Robert relate the manner in which he received his injury while working for respondent, and that the statement was to the effect that he had been shoved off of the truck on which he was working by a heavy timber, and that at that time he felt something slip or tear his back and that this statement was made at a time when Robert knew he would not recover.
"6. Mittie Couey testified that she had known Robert Shelton all her life, and that his health had been good prior to the injury; that she saw Robert on the day of his injury. He got out of a car at her home because he was too sick to go on home and Robert told her that he had got hurt at the mill. He went to her toilet and passed blood; she immediately thereafter saw the blood that had passed.
"7. Elgin Harris testified that he, Jewell Parks and Robert Shelton were loading timbers 6"x6"10 feet long, and some of them 12 feet long, off of a small truck into a boxcar when the boy (Robert Shelton) got hurt. Decedent picked up one and then fell down and when he looked around decedent was lying on the ground on his knees. Witness asked him what was the matter and he said, `Just another day.' He never worked another day. They finished that car and decedent went home. He never worked any more. `The boys asked me what I ruptured him for. I said he ruptured himself.' The timber kicked up in front. He fell about six feet. He was about as tall as witness. Decedent was weak after the fall; not able to work much the rest of the day.
"To overcome the foregoing evidence for the claimant, respondent produced the following witnesses:
"1. Jewell Parks virtually corroborated Elgin Harris as to the fall and injury. He was helping load *Page 1143 the timber. The timbers were heavy and it took a big man to push them. Decedent got overbalanced and stepped off the stack and fell off and one foot hit the ground; Elgin asked him if it hurt him and he said, `Just another lucky day.' He stood there awhile, shook his head and then got back on the timber. He did the best he could after that. They worked on for awhile and did not think Robert was that sick until he was dead. Saw him go behind a boxcar to make water. He did not say anything about passing blood to witness. Witness was in the boxcar at that time. The truck decedent was standing on was three feet, four inches high. After the fall decedent shook his head and mumbled something and then said, `Just another lucky day.' The timber was heavy, and he was not man enough to shove it and the weight of the timber shoved him off. He stood there with his hands on the stack and his face downwards and shook his head for about two minutes. He appeared to be dazed. He considered himself lucky that he didn't break his leg or the timber didn't fall on his head. Mr. Gordon was not present. He fell off, had a hard fall. The timber coming back pushed him off. He got a jolt while he was in a strained position. Both witness and Harris were much larger than decedent.
"2. There were other witnesses who knew nothing of the actual fall and injury, some of whom testified that Robert Shelton's work had not been as good as theretofore.
Findings
"Upon the foregoing evidence the court finds that all of the evidence, even that of respondent, establishes that Robert Shelton received an accidental injury on January 28, 1942, that arose out of and in the course of his employment with the respondent, employer.
"It is conceded by Dr. Ward, Dr. White and Dr. Simmons that the decedent was a badly diseased man at the time they treated him and the only other question to be decided by the court is whether or not there is any substantial competent evidence to support the findings *Page 1144 of the commission to the effect that the accidental injury received by decedent on January 28, 1942, did not accelerate, aggravate or lighten up the preexisting or latent infirmity of which decedent was suffering, and this question greatly concerns the court.
"Dr. Ward was evidently a busy man. Although decedent was paying him for his medical treatment, Dr. Ward was unable to go to see him and when decedent was carried to his office he was forced to wait long hours before obtaining a prescription, and he evidently did not make a thorough examination of the man until Dr. Simmons was employed by the respondent to come to Fordyce from Pine Bluff to make an examination at a time when respondent knew the claim was pending and this examination was made on or about March 8, 1942, and decedent died about five days thereafter. Their opinion could constitute nothing more than an answer to a hypothetical question, which is squarely met by the opinion of Dr. White who treated decedent throughout his injury and sickness and who testified that it was his opinion that the injury did accelerate, aggravate and lighten up the preexisting or latent infirmity of the decedent and thereby hasten his death, but the answer to the query is to be found in the physical facts and what actually happened. Robert Shelton had worked regularly for seven years for respondent without having lost any time. Respondent had him physically examined and that record was called for by the claimant and was not produced. Had he been treated by the company doctor for any serious defects prior to the injury, for which treatment decedent had paid out of his monthly wages for seven years, that would most certainly have been shown.
"On January 28, he received an injury while working for respondent and immediately became sick and passed blood from his kidneys and the passage of the blood continued until his death. He never worked another day and immediately went or was carried home where he remained until his death. *Page 1145
"In the recent case of Oviatt, Administrator, v. Garretson, 205 Ark. 792, 171 S.W.2d 287, the Supreme Court of Arkansas made the following statement: `These and other physical facts appeal to common sense and reason more than do hypothetical questions and answers.' The foregoing statement squarely answers the question here presented.
"It is the judgment of the court that there is not sufficient competent evidence to support the findings of the commission, and the facts found by the commission do not support the award and the same will be reversed, and an award granted to claimant and the dependent child against the respondent, Fordyce Lumber Company, in accordance with the act."
For the reasons stated in the foregoing opinion of the circuit court I respectfully dissent from the holding of the majority herein; and I am authorized to state that Mr. Justice ROBINS and Mr. Justice KNOX join me in this dissent.