I respectfully dissent. I agree with the learned circuit judge who tried the case below that appellee's present disability grew out of his original injury and that his claim was not barred by limitation.
Two physicians testified that the injury which appellee received while working for appellants, Sanderson and Porter, caused his existing disability; and appellants' physician who attended him immediately after the injury did not deny that the original injury was to the spine as well as to other parts of his body. So, it may be said that undisputed testimony established the injury at the plant of appellants, Sanderson and Porter, as the cause of the disability from which this unfortunate man is now suffering.
As to the bar of limitation, it is shown that a claim for disability growing out of this accident was in apt time filed on behalf of appellee — and appellants acknowledged liability thereon. The contention of appellants is that this claim did not embrace the spine injury which, it is now shown, appellee received from his fall on the *Page 422 steel rod. But is appellee at fault in not including the spine injury in his claim when neither he nor the physician employed for him by appellants knew of the existence of such injury when the original claim was filed?
The evidence shows that this man was not a malingerer and that after his injury he did different kinds of work, which caused him much pain, in an honest effort to diminish his claim and make a living for his family. He even volunteered for wartime service in the navy, where he served until navy physicians had him discharged on account of the condition of his spine.
We dealt with a similar situation in the case of Williams Manufacturing Company v. Walker, 206 Ark. 392,175 S.W.2d 380. In that case the claim of a workman for disability by reason of hernia was resisted on the ground that the workman did not give notice of hernia within forty-eight hours, as required by the statute. The Workmen's Compensation Commission held that proper notice was not given and denied the claim, but the circuit court overruled the Commission and allowed it. In that case we said: "These compensation acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities — by putting form above substance. In the case at bar there is no intimation in the record of any malingering, lack of good faith, or misrepresentation or concealment of facts, on the part of appellee. Since he suffered an accidental injury in the course of his employment and it clearly appears that he did all that could be reasonably expected of a workman in the way of reporting his injury promptly and submitting himself to examination by his employer's physician, we conclude that the judgment of the lower court was correct and must be affirmed." I think the doctrine enunciated in that case is applicable here.
There seems to be concern lest, in requiring that appellee be paid what he claims as his share of a fund created, by the labor of workers, to protect themselves and society from pauperism resulting from disabling injuries to workers, we set a precedent that might some *Page 423 time be unfair to an insurance carrier. We should be concerned, of course, with the rights of an insurance company in exactly the same manner and to exactly the same extent as we should protect and enforce the rights of every litigant before us. But we should not disregard entirely the rights of that great multitude of men and women who, with infinite patience and fortitude, have been down through the centuries, and still are, doing the world's hard, dirty and dangerous work. I submit that a decision like the one in this case, whereby an honest, self-reliant, but ignorant, laborer is deprived of his dues solely because he depended (as he was compelled to do) on the diagnosis of a physician selected for him by his employer, may hardly be called a milestone of progress along the road toward realization of man's age-old dream of equal justice to all.
The judgment below should be affirmed, with a modification that would diminish the amount of appellee's recovery by the amount otherwise allowable to him for such time (if any) after his injury during which he worked and received full pay.
Justice MILLWEE joins in this dissent.