I respectfully dissent from the majority, and this is the process of reasoning impelling this dissent:
(a) The Arkansas Workmen's Compensation Law was not taken bodily from any other state, so we are not bound by any rule of construction from any other state. Cases from other jurisdictions are persuasive merely — that is, we follow the cases from other courts only when the reasoning in such cases convinces us of soundness. *Page 1051 This appeal presents a case of first impression in Arkansas. We are bound by no judicial precedent.
(b) There is no direct provision in the Arkansas Workmen's Compensation Law applicable to this case. That is, the act does not say that awards do survive or do not survive. The act is silent.
(c) Therefore, this court is unrestrained by judicial precedent and legislative mandate, and can decide this present case according to the real spirit of the Workmen's Compensation Law, and without any indictment of "judicial legislation" being levelled at the court. What, then, is the spirit of the Workmen's Compensation Law? We have said in previous opinions that the Workmen's Compensation Law should be liberally construed to effectuate its purpose. What is its purpose?
One of the purposes of the Workmen's Compensation Law is to give the working man more rights than he had before the law was enacted. Prior to the Workmen's Compensation Law, in order to recover for injuries, the working man (called the servant in legal parlance) was required in most cases to prove (1) some negligence of the master or a fellow-servant, and (2) absence of contributory negligence and assumed risk by the plaintiff. This is broadly stated, but it was the general condition that existed under the old law. Under the Workmen's Compensation Law these matters of negligence and assumed risk are obliterated. Broadly speaking, an injury in employment is all that need be shown in workman compensation cases. So the law was to benefit the working man.
Before the Workmen's Compensation Law, if the working man received a judgment for injuries, it survived to his estate. The award under the Workmen's Compensation Law was to take the place of the judgment under the old law. Certainly, if the working man is to be helped by the Workmen's Compensation Law, then the award under the compensation law should survive, just as the judgment survived under the old law. But under *Page 1052 the construction of the majority, the death of the working man leaves his estate without any claim to the award.
In the case at bar, the working man suffered a permanent injury to his eye. If he had secured a judgment against his employer under the old law, the judgment would have gone to his estate. I say the death of a working man makes his wife and children need the compensation after his death just as much as, or more than, they needed it during his life.
The majority say that the award is not assignable, and therefore does not survive. The fact that the award is not assignable is for the protection of the working man. It keeps his creditors from touching it. But the section against assignment was not to restrict the rights of the estate of the working man.
The majority say that the probability of death of an injured employee is to be computed under the American Experience Table of Mortality, and that this indicates that the award is not subject to survivorship. I think the reason, that the probability of death of the injured employee is to be computed according to the American Experience Table of Mortality, was to benefit the working man. If a working man be injured, witnesses could be called who would testify that the particular man in that particular condition could only live a short time. So the Workmen's Compensation Law, in order to broaden the rights of the working man, says that the expectancy of a particular individual is not to be based on his particular ailment, but on the broad experience tables of mortality of mankind generally.
In other words, the very rules and reasons, cited by the majority, appeal to me as showing the opposite intention, because I believe that the purpose of the Workmen's Compensation Law was to benefit the working man, and that no construction of the act should be adopted which reaches the opposite conclusion when the court is free — as in this case — to interpret the law according to its real spirit.
For the reasons stated, I therefore dissent. *Page 1053