On December 20, 1940, an opinion was adopted by this Court affirming the judgment of the lower court, On January 29, 1941, an order was entered granting the petition of appellants for a rehearing and a time limit *Page 575 was fixed in which to file briefs, but an oral argument on rehearing was denied.
It is contended by counsel for appellants that the testimony is legally insufficient to show or establish liability on the part of the appellants within the meaning of Chapter 17481, Acts of 1935, Laws of Florida, commonly known as the Workmen's Compensation Act, and particularly Subsection (f) of Section 15 and Section 16 thereof. This same contention was presented and elaborately argued before the Honorable C.E. Chillingworth, Circuit judge, who held the testimony was ample to sustain a liability on the part of Dixie Laundry and Standard Accident Insurance Company and reversed the order of the Industrial Commission, which held there was no liability.
A recital of the findings of the circuit judge appearing in the order appealed from are pertinent and are, viz.:
"The accident took place September 4, 1936. The physician furnished by the employer and the insurance company, treated the husband and the claimant, who was injured. He returned to work about four weeks later. He received an award for the time lost from his employment. He resumed work and thereafter received from his employer the same wages that he had received prior to the accident. In the accident, the claimant's husband suffered a hernia — in addition to other injuries — with the elements required by Section 15 (f) of the Florida Workmen's Compensation Act, established by the proof in this case. The same physician and surgeon furnished by the insurance company and the employer operated upon the husband and the claimant for a hernia, on October 5, 1938. fie died October 16, 1938, as a result of this operation. The claimant filed her claim April 7, 1939. It is opposed primarily on three grounds, first, that the testimony of the widow is inadmissible under Section 4372, Compiled General *Page 576 Laws of Florida; second, the death claim was neither filed within one year after the accident, nor had there been a continuous disability following the accident, so as to extend the time for filing the claim; and, third, because the surgeon who performed the operation had not been furnished by the employer.
"No useful purpose would be served in making a detailed finding. Suffiice it to say that, as to the first objection, in the light of Section 29 (a) of the Workmen's Compensation Act, and the obvious spirit and purpose of the Act, one should not reject this testimony of the widow.
"The award of the Commission was apparently based on the theory that a continuous disability could not exist if the injured party, after the accident, worked and received pay equal to that before the accident. I find nothing to warrant making the receipt of an amount of compensation the sole test of disability. For many reasons, the injured party might pursue his employment and receive more or even less compensation than before, and still suffer from a continuous disability. The accident caused the hernia. It can hardly be disputed that such a hernia was in fact a disability and that the disability was continuous, even though the injured party was able to pursue his employment, notwithstanding the disability. Section 2 (8) of the Act defines disability, but does not establish earning capacity as the sole and exclusive test of disability.
"With reference to the objection that the surgeon who performed the operation was not one furnished by the employer, it appears that he was the identical person who was furnished by the employer and the insurance company immediately after the accident. There was nothing to indicate to the employee, or to the claimant, that the insurance company bad severed the relationship of physician and patient between the physician and the employee, even if it *Page 577 may be inferred that the physician had ceased to be one who was furnished by the employer. Because the operation was not successful, even though performed by the surgeon furnished by the employer, would not of itself permit the employer to disown the physician or to thereafter repudiate his status as one furnished by the employer, under Section 9 (a) of the Act.
"It is therefore the conclusion of the Court that notwithstanding the objections of the employer, claimant has made a clear case under the Workmen's Compensation Act, which entitles her to compensation under the provisions of Section 16."
On oral argument at the bar of this Court and in brief's the sufficiency of the testimony was carefully and pains-takingly presented and was by this Court in its former opinion given due consideration. The record was examined in the light of the contention of counsel on oral argument and in briefs. We reached the same conclusion as the lower court.
Section 26 of Chapter 17481, supra, provides that a presumption of liability shall exist, in the absence of substantial evidence to the contrary, in certain defined instances, one of which is, viz.: "that the claim comes within the provisions of the Act." The lower court cited in his order assigned as error the aforesaid presumption.
In the case of Atlantic Marine Boat Yard, Inc., v. Daniel,138 Fla. 864, 190 So. 612, the claimant was pushing a boat into the water on the railroad, the roller on the truck struck, a joint on the rail and the employee tried to push it over the joint and felt a stinging sensation on his right side. The accident occurred on October 4, 1936, and the claimant continued his employment until November 1, 1936, when he observed a slight bulging in his groin; be was examined by a physician on February 9, 1937, and the physician *Page 578 diagnosed his ailment as a right inguinal hernia. It was there contended that the injury was not the result of the accident and did not come within the provisions of Subsection (f) of Section 15 of the Act. This Court upheld the conclusions of the lower court, despite the intervention of time from October 4, 1936, until February 9, 1937. In the case at bar the claimant sustained an injury on Friday and the hernia was discovered on Sunday. It is reasonable to assume that the injury was invisible from Friday until Sunday.
The presumption provided for in Section 26 of the Act "that the claim comes within the provision of this Act," coupled with a previous holding of this Court to the effect that "the Supreme Court shall give to the findings of fact by the circuit judge that degree of consideration, force and effect which the Supreme Court gives to the chancellor in an ordinary chancery suit," impels the conclusion that appellants faded to make error appear on the record. The rule to be applied was expressed by Mr. Justice BUFORD, speaking for the Court in Firestone Auto Supply Service Stores v. Bullard, 141 Fla. 282, 192 So. 865, thusly:
"Therefore, our construction is that the circuit court considers the case on the record and enters such order as to the circuit court appears to be in accord with the law and facts. The circuit judge shall give to the findings of the Commission about the same weight and consideration which the chancellor should properly give to the findings of law and fact by a special master appointed by the court for that purpose.
"When, however, appeal is taken from the order of the circuit court to the Supreme Court, the Supreme Court shall give to the findings of fact by the circuit judge that degree of consideration, force and effect which the Supreme Court gives to the findings of a chancellor in an ordinary chancery *Page 579 suit, which means that if the circuit court has acted upon the record made before the Commission, great weight will be given findings of the circuit court.
"It follows that the burden in cases appealed to this Court is upon the appellant to show clearly that the circuit court has arrived at an erroneous or unwarranted conclusion."
On rehearing a careful consideration has been given to the entire record; the original briefs and briefs on rehearing have been examined and we fail to find error in the record. The original opinion filed in this cause is hereby adhered to.
It is so ordered.
WHITFIELD, BUFORD and ADAMS, J. J., dissent.
BROWN and THOMAS, J. J., dissent.