I dissent from the judgment of the court for the reason that a review of the evidence *Page 519 fails to show anything upon which a verdict in favor of the claimant could be predicated.
It is true there were statements of medical experts to the effect that the present condition of the claimant might be due to the original injury, inflicted in 1926.
It is true that wherever a factual question is presented the jury's conclusion is binding upon this court if there is any substantial evidence to sustain the same.
The burden is upon the claimant to prove the causal connection between an injury and his present condition by a preponderance of the evidence. Testimony that such condition might be due to such injury, to my mind, falls far short of proving a causal connection between the injury and the present condition, by the appropriate degree of proof. Courts certainly would hesitate to sustain verdicts in personal injury cases based upon statements in the evidence that the collision might have occurred, or that some important and controlling fact might have existed, and I see no reason for applying any different rule in a case bearing the character of the one under consideration, even though attention is directed in that case to opinion evidence of experts. Such statements, giving them their greatest force, amount to nothing more than the merest kind of conjecture and speculation.
Competency is not directly related to weight of evidence. A particular item of evidence may be competent, and yet be almost completely valueless as a probative factor. To say that, in the opinion of an expert, a condition may or might be due to a particular fact, is to present that which from a probative standpoint is a matter in exact equipoise, for in the affirmative statement is included an equally forceful inference that the condition may or might not be due to the particular fact.
It is suggested that the testimony of the wife is probative of the causal connection between the claimant's present condition and his original injury. The nature *Page 520 of the claimant's ailment is such as to preclude giving substantial weight to her evidence. Difficulty in establishing a fact may not be substituted as proof of the fact.
It is my conclusion that judgment should be entered in this court for the appellant, on the ground that there is absolutely no evidence showing a causal connection between the injury of 1926 and the condition now asserted by the claimant as constituting a basis for participation in the Industrial Compensation Fund.
I concur with Judge Hamilton in his conception of the law covering the particular questions of procedure presented.