I respectfully dissent from the majority opinion lastly rendered in this case. It turned upon the primary question of fact, viz., has plaintiff proven by a preponderance of the evidence that he suffered the accident alleged by him to have occurred on April 4, 1936?
It was established at the second trial below that at that time his disability was total, and his counsel now concedes that the experience he had on April 6th did not amount to an accident within the intendment of the Workmen's Compensation Law.
In support of this dissent, the following is submitted in addition to what is said on the subject in the original opinion of this court:
I think it is the observation of all judges, trial and appellate, having jurisdiction of compensation cases, that injured workmen never overlook a strong point in their favor and that the hope of receiving compensation immediately after being injured arises spontaneously within them. For this we register no unfriendly criticism. The anxiety he feels for subsistence for himself and family during the period of disability naturally impels him to think seriously along this line. He therefore does not omit, if in possession of his normal mental faculty, consideration and pondering over any fact, circumstance or incident deemed to have favorable bearing upon his right to receive or recover such compensation.
The fact that plaintiff did not inform Doctors Doles and Harmon that he was injured by excessive straining, etc., on April 4, 1936, weighed heavily against him when his case was first considered by us. In the interest of justice and actuated by that purity of motive which should always influence judges and courts in all cases, especially such as plaintiff's, we remanded the case for additional testimony. The record as supplemented has not served to alter the opinion I originally formed as *Page 461 regards the alleged accident of April 4th. I think the record clearly preponderates in favor of the contention that plaintiff did not, in giving the case history, inform either of these doctors that he was injured on that date. The facts were then fresh in his mind. Every reason argued in favor of him telling of this accident, if it really happened. Naturally he would be supposed to impart to these doctors all the facts favorable to himself and emphasize them. If he did not then tell these physicians of this, the much more serious of the two experiences, we frankly submit that it is unreasonable to believe that such an accident really happened, especially when other circumstances and testimony bearing thereon is considered. The inference being, as stated in our original opinion, that the fear of discontinuance of compensation payments could have served as an incentive to injecting into the case history facts of an accident stronger than those constituting the incident of April 6th.
Dr. Doles is positive he specifically asked plaintiff if he had had an accident or injury prior to April 6th, and that he answered in the negative. It is true that the doctor's report to defendant was actually made up several days after he examined plaintiff but this fact should not detract from the probity of the testimony given by him but, on the contrary, should support and corroborate his independent recollection of the facts as related to him by plaintiff. The report and his independent recollection agree.
Dr. Harmon is positive he took from plaintiff the history of his case, after Dr. Addison had previously done so, and that he only mentioned to him the alleged accident of April 6th. This is clearly disclosed from the doctor's testimony below quoted:
"Q. Doctor, that is all right, but did you take the history of his case, which I am sure is of some importance to this court? You did not make that record, did you? A. I certainly did make the man's record.
"Q. I mean by that you did not take his history on April 10th, 1936, did you? A. I do not recall what date I made it. What is the date of my report? Of course, I may not have written it on the day I took it. I may have taken it the day before.
"Q. I am asking you if it was April 10, 1936. A. That was his first visit?
"Q. That is what your records show. I am going to ask you, Dr. Harmon, is it not a fact that you were out of the city of Shreveport on that date and that his history was taken by Dr. Addison? A. Dr. Addison may have taken his history, but so did I.
"Q. You do not know what he told Dr. Addison, necessarily, if you were out of town? A. I know what he told me. I cannot testify as to what he told Dr. Addison.
"Q. Did you take a history also? A. Yes, when I saw him."
Dr. Harmon afterward testified that if he was absent when a patient was sent to him, the history taken by his associate, Dr. Addison, would be read by him all right, but that he also keeps a record of his cases, independent of anything Dr. Addison, in the beginning, may have had to do with them.
We have not the pleasure of an acquaintance with either of these doctors. In the absence of anything to influence a contrary opinion, we are bound to assume that their credibility before the court is of that high character which the members of the medical fraternity should always enjoy. Surely their interest in the outcome of the case does not in the remotest degree approach that of plaintiff.
Plaintiff's explanation to his own counsel touching the omission by him to mention to these physicians anything about an injury on April 4th is interesting. We quote from counsel's brief:
"The court may wonder why Moore was not placed on the stand in rebuttal and asked the question as to whether he had given a history of the first accident to Doles. We are frank to state that we asked Moore whether he had given a history of the first accident and he was honest enough to state that he simply did not recall what he stated to Doles with reference to either of said accidents, he was in such pain at the time."
Notwithstanding the pain plaintiff was suffering when the history of his case was taken by each doctor, it is certain he mentioned the experience of April 6th, or else they would not have known of it.
It would be a coincidence of the rarest character — too much so to believe true — that these doctors, acting independently of each other, should both fail to record *Page 462 the fact of the accident of April 4th if plaintiff had mentioned it to them and, in addition, not to recall it from memory, but to vividly remember what he said about the lesser experience two days later.
We have again given diligent consideration to the testimony given by plaintiff, largely quoted in the opinion this day announced, with reference to the accident of April 4th, his action immediately thereafter, etc. We reproduce the following therefrom:
"Q. Did you tell Mr. Baldack, on Saturday April 4th that you were hurt? A. I told him that I had a pain in the back, when trying to raise up.
"Q. Did you tell him that you had gotten hurt lifting, or anything like that? A. Well, no —"
It required considerable prodding to move him to any extent from the declaration that he did not tell his foreman that he then and there injured himself by excessive straining. The foreman was present and was overseeing the work in which plaintiff was engaged. The witness, Prudhomme, says that plaintiff "grabbed himself and says `I hurt my back'". No other witness saw or heard this and even plaintiff would not and did not testify that such happened.
We think it fairly well established by the testimony of fellow-workmen that plaintiff was complaining of his back hurting him prior to Saturday, April 4th. There is every reason why he should have done so, in view of the multiple sources of focal infection the many physicians found to beset him.
Plaintiff's physical condition is to be lamented. However, the country abounds in cases of like character. He has been afflicted with several focal infections for possibly years. These work slowly but surely to accomplish destruction of physical virility. The physical breakdown he has experienced is but the expected result of such a combination of maladies. The crash came directly as a result of their activities. Legion of strong men have likewise suffered when not engaged in any sort of work or in work not requiring heavy physical exertion. It was not intended that industry should be condemned to absorb the burden of alleviating the suffering and disability present in such cases.