dissenting.
While I agree with the majority’s analysis of the difficulties attendant in attempting to apply a rigid rule to force claimants in occupational disease cases to establish a time certain from which to measure the limitations of time, I disagree with their holding that Mrs. Smith conclusively established timely notice and claim.
Perhaps, if the issues had been submitted to the jury and been answered against Mrs. Smith, any answers against her would, under the record, have been against the weight and preponderance of the evidence. However, such an evidentiary evaluation would not be sufficient to justify refusal to submit the issues to the jury.
I would hold that Mrs. Smith’s credibility having been cast in question there was necessity for jury issues because the question of when her first distinct manifestation occurred was of such a subjective nature that Commercial could not readily contradict or disprove her testimony. Furthermore it was only by making the inference that the majority held actions to have been timely from date of any “first distinct manifestation.” The basis for the exception to the interested witness rule relied on by the majority is weakened somewhat when the testimony of Mrs. Smith is recognized to be such that it could not be readily contradicted if untrue.
I would reverse the judgment and remand the cause for a new trial.