dissenting.
I believe that the workman is entitled to compensation, and that his petition should not be dismissed, and therefore dissent from the opinion adopted by a bare majority of this court.
This case was argued to this court February 20, 1939, and involved such disputed questions of fact in the testimony of medical experts that several views could each be upheld, depending on which doctor’s testimony was believed.
I desire to state the facts and law to support my views that this man, who is entirely helpless, is entitled to be compensated.
This is an appeal from an order of the district court, dismissing the appeal of the defendant to that court from an award of the compensation court sitting en banc.
On October 20, 1937, plaintiff filed petition in the Nebraska workmen’s compensation court, alleging that on July 30, 1937; while employed as a mechanic by the Standard Auto Parts Company, Inc., of Lincoln, he was working under an automobile, and it slipped off the jack, crushed him to the floor, causing injuries to the left shoulder, left chest wall, and ribs, producing an active tuberculosis of the lungs. He further alleged that the injury was permanent; that his wages at the time of the injury were $18 a week.
A hearing was had December 22, 1937, before Honorable Frank M. Coffey, one of the judges of the Nebraska workmen’s compensation court, at St. Elizabeth Hospital, where the plaintiff was being hospitalized.
Judge Coffey made an award on January 31, 1938, finding that plaintiff was injured while making adjustments under an automobile, as described in his petition, and found that previous to this accidental injury plaintiff had had a degree of tubercular infection, but that such infection had been arrested and plaintiff was able to perform manual labor, and was not receiving medical attention at the time of his accidental injury on July 30, 1937, which injury was the direct cause of lighting up the arrested tubercular con*759dition, and awarded payment of claims for hospital and medical services, together with $12 a week to plaintiff for not more than 300 weeks from July 30, 1937.
Defendant filed waiver of rehearing and notice of appeal directly to the district court, and certificate thereof was duly entered by the Nebraska workmen’s compensation court.
On February 7, 1938, the plaintiff filed a petition for rehearing from the award entered by Judge Frank M. Coffey, setting up that he was suffering total and permanent disability as a result of active tuberculosis, and an aggravation of a latent arthritis. He also appealed from the disallowance of the claim of $240 of Dr. Arthur L. Smith, and its allowance in the sum of $140 only.
The next day defendant asked leave to withdraw its waiver and election to appeal directly to the district court, and also asked for a rehearing before the full Nebraska workmen’s compensation court.
On March 7, 1938, it came on for rehearing before the three members of the workmen’s compensation court sitting en banc at St. Elizabeth Hospital, where the evidence of the plaintiff was taken. The hearing was then concluded at the compensation courtroom in the State House, and the evidence duly taken by an official shorthand reporter of said court, in accordance with section 48-174, Comp. St. Supp. 1937, and each party rested. Thereupon, the parties were directed to furnish briefs to the court.
Thereafter, on May 9, 1938, an award was made by said court, describing the injuries received in the accident, and finding that prior to this accident plaintiff had a degree of tuberculosis infection, which had been arrested, and that he was not receiving medical attention at the time of the accident. The award allowed the plaintiff $12 a week for not to exceed 300 weeks from July 30, 1937, and set aside the award made on January 31, 1938, by Honorable Frank M. Coffey, which had allowed lesser amounts for hospital and medical services.
Thereupon, defendant appealed to the district court, *760where a hearing was had on September 21, 1938. As was said in Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N. W. 352: “It will be noted that, where a retrial has been had before the full compensation court, the appeal authorized to the district court is limited in scope and is primarily in the nature of an error proceeding.”
No further evidence was taken in the district court, and after the arguments of counsel said matter was taken under advisement, and judgment was entered October 22, 1938, finding that there is conflicting evidence in the record, but that there was competent evidence to support the award made by the Nebraska workmen’s compensation court, and it was therefore ordered, adjudged, and decreed that the award so made on May 9, 1938, be affirmed, and the appeal of the defendant dismissed at defendant’s costs. Thereupon, the defendant filed a motion for a new trial, and upon its being overruled, filed a supersedeas bond in the sum of $3,000 and appealed to this court.
When such an appeal comes before this court, it is provided “that a judgment, order, or award of the district court may be modified or set aside only upon the following grounds: (1) That the court acted without or in excess of its powers. (2) That the judgment, order or award was procured by fraud. (3) That the findings of fact are not •conclusively supported by the evidence as'disclosed by the record, and if so found, the cause shall be considered de novo upon the record. (4) That the findings of fact by the court do not support the order or award.” Comp.' St. Supp. 1937, sec. 48-174.
In the bill of exceptions it is shown that the evidence of the plaintiff was taken before the full compensation court on March 7, 1938, at St. Elizabeth Hospital, where plaintiff was confined, and more than a dozen X-rays were received in evidence when offered by plaintiff.
Dr. Smith testified that he had made 114 personal calls, and 17 physical examinations of plaintiff’s chest and lungs, taken seven X-ray pictures at his office, and had six more taken at the hospital, also took tuberculin and sputum tests. *761In his long description of plaintiff’s chest, he said he found fractures of three ribs, and abundant evidence of former tubercular trouble, such as old hardened lesions, manifested by deposits of calcium in various parts of the lungs, and he got a positive tubercular test after 24 hours. Dr. Smith took up each X-ray exhibit, and told in detail the exact condition which it indicated. His conclusions may perhaps be inadequately condensed to these facts: That the plaintiff had a fracture of three ribs on the right side, an aggravation of arthritis in the dorsal vertebrae, a separation of the second left and right costocartilages from the sternum margin, and in his lungs there was an activation of an old tuberculosis; that all of these conditions are the proximate result of trauma suffered in the accident.
Dr. Czar Johnson testified at length of the conditions found by him, and that the proximate cause of these conditions was the accidental injury when plaintiff was crushed between a car and the cement floor. His specific findings agreed in nearly every detail with those of Dr. Arthur L. Smith.
The plaintiff introduced exhibit No. 17, being a five-page signed statement of Dr. Miles J. Breuer, dated January 5, 1930. This gives in greatest detail the results of a careful examination of plaintiff, made presumably in connection with plaintiff’s claim for disability from the government. Briefly, it shows plaintiff’s history, as follows :
He grew up on a farm and in lumber woods until he was 23 years of age, when he went to work on a cattle ranch in Texas for a year, then in a steel mill in Pueblo, Colorado, for two years, after which he entered military service. He was in training at Camp Custer, Michigan, three months, got sick from drilling and hiking in mud and water, was in hospital two weeks; was with A. E. F. in France nearly a year; on discharge, has never been able to hold a job since; willing, but not physically able to carry out the work. The statement ends with the sentence: “It is necessary that a chronic tuberculosis of this type, though it does not show extensive pathology, be recognized as a total disability.”
*762I will now discuss the testimony of the medical experts called on behalf of the defendant.
Dr. John C. Thompson testified that he examined plaintiff at St. Elizabeth Hospital, together with Dr. Clayton Andrews and Dr. W. W. Carveth. The history which they took of plaintiff covers seven pages of testimony. He said his condition clearly indicated a childhood tuberculosis, which had not been active for a long time, but he found a complete absence of adult tuberculosis. He stated positively that he saw no evidence in the X-rays of any fractured ribs. One answer gives Dr. Thompson’s conclusions in regard to plaintiff, as follows: “We have not only the X-ray findings, we have the history, got the interpretation of a mass of evidence through a period of time, and finally, we have what we had in this test, and that’s nothing but bronchitis. Furthermore, especially on this X-ray, from this evidence of the blood pressure finding, I think this man is a deliberate liar.”
In the examination of plaintiff by the three doctors, Dr. John C. Thompson took his blood pressure and found it 154 over 88, which he says is definitely aggravated for a man of his age. Later Dr. Andrews took it, and got it 142 systolic. Then later Dr. Carveth took it, and got 118. Dr. Thompson explains this by saying that, when they began their rapid cross-questioning and plaintiff was embarrassed, the blood pressure was high, and when the questioning stopped it dropped to 118. He adds that blood pressure readings are an important part of the instrument devised at Northwestern University for the detection of lies.
Dr. Carveth then told of the examination of the plaintiff by the three doctors for the defendant; that they began at 9:30 a. m. and finished at 12:30 p. m. on February 28, 1938; that they did not take any X-ray pictures, nor take any tuberculin test.
Dr. Carveth testified that in his opinion plaintiff’s chronic alternating activity is not tuberculosis, but bronchitis.
Dr. Clayton Andrews could find no disability in the back due to arthritis, and no disability due to the accident, and *763said there was no reason why plaintiff could not be doing as much work now as he did before the accident. He also doubted the sincerity of the plaintiff.
I have now given a very brief summary of the expert medical testimony of the defendant. These experts do not agrqe on any point with plaintiff’s doctors, and defendant argues that we must find that Dr. Arthur L. Smith and Dr. Czar Johnson are entirely wrong, and Dr. Owen, Dr. Carveth, Dr. Andrews, and Dr. John C. Thompson are right, and set aside the award.
The evidence of Dr. Arthur L. Smith, who has been in constant attendance for so many months upon the plaintiff, is definite and positive, and founded upon a patient study of the case from day to day. It stands up well under cross-examination, and is supported by X-rays, and by the testimony of Dr. Czar Johnson.
On the other hand, the testimony of the three medical experts called in by the defendant, and who for three hours subjected him to such surprise tests and experiments- that his blood pressure fluctuated between 118 and 154, is to the effect that they think the plaintiff is lying, and that the effect of the accident was merely trivial, and conclude that he is suffering from bronchitis, and not tuberculosis.
It will be seen that the decision in this case depends upon the weight to be given to the testimony of these expert medical witnesses.
Now, take a case where an unfortunate employee, who was not physically strong, but sought and obtained work, was injured while doing the very best he could, and has never been able to work a day since the injury, files a petition for compensation, and is only able to employ two reputable doctors; that their bills run to several hundred dollars. Is it required that their testimony be rejected because, if the employee secures an award, it will carry with it an allowance of their medical bills? I think not.
On the other hand, the defendant corporation, who is fighting the allowance of any compensation to an injured employee, is able to employ more than twice as many *764equally reputable doctors, who testify exactly contrary on every proposition, including their testimony that the X-ray photographs tell an entirely different story when read by them.
I cannot believe that it resolves itself to a question that, as only two doctors testified for plaintiff and five or six against him, therefore the weight of the evidence is against allowing any award. Weight of evidence is not determined merely by counting the witnesses on either side.
To prove that this difficulty arising when eminent medical experts testify to exactly opposite conclusions existed sixty years ago, I quote from an article by G. Brooke Freeman in the Law Magazine and Review of London in February, 1878: “On some special branches of inquiry the same two eminent experts * * * confront each other daily. * * * When the evidence is only as to a matter of opinion, the witness, of course, cannot be indicted for perjury, and it is clear that this will allow the assertion of anything which a skilled witness may think likely to advantage the cause of his employer, or add importance to his theories and himself. The serious mischief caused in this way, added to the frequent inability of the court to obtain any other kind of evidence, or to arrive at a conclusion which does not depend mainly on such testimony, naturally produces great dissatisfaction with any decision in an expert action.” Rogers, Expert Testimony (2d ed.) 468.
One of the earliest complete discussions of expert testimony is that following the case of Hammond v. Woodman, 66 Am. Dec. 219, 228-246 (41 Me. 177).
The situation presented courts by medical experts is covered by Jones, Commentaries on Evidence (2d ed.) 2509, sec. 1370, in this pertinent discussion: “It is the inherent infirmity of expert testimony that it consists largely of matters of opinion. In addition to those elements of weakness and uncertainty which enter into the testimony of those who relate simply what they have seen and heard, we have in expert testimony the deductions and reasoning of the witness with all the chances of error incident to human *765reasoning. The notorious fact that experts of equal credibility and skill are found in almost every important cause testifying to directly opposite conclusions illustrates both the fallibility of such testimony and the fact that a conviction for perjury based upon such evidence would be very difficult. It is a matter of common observation in the courts that witnesses of the highest character and of undoubted veracity may be easily led as experts to espouse and defend a theory with all the zeal of the advocate. Again, the practice prevails of employing expert witnesses and paying them for their services, as compensation, amounts depending upon their skill, or, perhaps, the result of the action. These and similar considerations have led to those strictures upon expert testimony so often made in instructions to juries or in judicial decisions.”
In an article on “Opinion Evidence of Medical Witnesses,” by Henry W. Taft, of New York City, he quotes Dr. Sloan, president of Illinois State Medical Society, who says that in Civil Law countries of Europe “the expert is a part of the judicial system. He is an officer of the court and treated as such. * * * They are free from partisan bias, possessed of great judgment, a judicial mind, scientific experience and knowledge, and their expert opinions upon the questions submitted to them occupy a position like that of judicial opinions in weight and decisiveness.”
On the other hand, in the United States a regrettable situation sometimes arises, for Mr. Taft quotes a committee of the American Bar Association to the effect that “medical witnesses in personal injury cases, dependent for their compensation upon the success of the side retaining them, ‘magnify the seriousness and permanence of the injury, while the defendant’s witnesses, although sure of their compensation from a responsible client, minimize the injury.’ ” 14 Va. Law Review, 81.
“The remedy therefore seems to lie in removing this partisan feature, i. e., by bringing him in court free from any committal to either party. Such a status for the expert would indeed not secure perfection. But it can be asserted *766that no measure can be effective which does not secure such a status for the expert witness. How can this be done ? The essential features, in the abstract, are that the state, not the party, shall be the one to pay his fee, and that the court, not the party, shall be the one to select and summon him.” 1 Wigmore, Evidence, sec. 563.
“Expert witnesses are produced to support a certain theory by their opinions, often upon facts which have been detailed by others; they are frequently selected because of ability to express opinions which are favorable to the party who calls them and to whom they are to look for their compensation beyond that paid as witnesses’ fees to all witnesses. Their opinions may be swayed one way or the other by bias or interest without conscious dishonesty. * * * Its value and usefulness are attested by the fact that resort to it is constantly increasing in all coui-ts and in respect of an ever-widening range of subjects. Many cases are to be found in which expert testimony is commended and held not properly subject to deprecating remarks in the court’s instructions, or else is declared to be entitled to the jury’s unbiased consideration, free from the court’s prejudicial remarks either in its favor or against it.” 20 Am. Jur. 1058, sec. 1207.
An excellent article on medical experts, and the difficulties from their standpoint, is that by Dr. H. Mason Smith, of Tampa, and found in 8 Fla. Law Journal, 33.
In the case at bar, awards were made to this injured workman after both of the hearings before the compensation court, and affirmed in the district court, based upon the weight given to the expert medical witnesses for the plaintiff. The reasons for accepting their opinions, findings, and testimony, supported by the X-rays, seemed to be satisfactory to three courts. Why should this court reject such findings now?
It is true that injury resulting solely from disease is not compensable (Svoboda v. Mandler, 133 Neb. 433, 275 N. W. 599), but where the injury and a latent disease combined to produce disability, recovery may be allowed (Gilcrest Lum*767ber Co. v. Rengler, 109 Neb. 246, 190 N. W. 578), in which case a disease of the blood was aggravated by trauma. See, also, Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N. W. 688.
The writer of this dissent, considering the liberality with which we must consider all compensation cases, believes that plaintiff suffered an injury in the accident, and is not yet able to work, and accepts the testimony of his doctors that the injury to his chest lighted up an old tubercular condition, which was dormant when he was injured and has now become active, and believes that this unfortunate is entitled to compensation.