Matter of Carroll v. . Knickerbocker Ice Co. , 218 N.Y. 435 ( 1916 )

This is an appeal by the Knickerbocker Ice Company from an order affirming the decision and award of the workmen's compensation commission in the matter of the claim of Bridget Carroll for compensation for the death of her husband, Myles Carroll, which was occasioned as it is alleged by injuries received while he was in the employ of the appellant. The Knickerbocker Ice Company is a self-insurer under the Workmen's Compensation Law. The decedent was employed by the ice company as driver on an ice wagon, and the claim is that he suffered an injury on September 22, 1914, while delivering ice. The commission made certain findings of fact upon which it based an award to the claimant. One of such findings of fact is as follows:

"2. On said date while said Carroll was putting ice in the cellar of a saloon at 20 East Forty-second street, borough of Manhattan, city of New York, the ice tongs slipped and a 300-lb. cake of ice fell upon him, striking him in the abdomen, causing an epigastric hemorrhage and a rigidity of the abdomen. He was taken to a hospital and there developed delirium tremens and died on the 28th day of September, 1914."

Section 21 of the Workmen's Compensation Law (L. 1914, ch. 41) provides that in any proceeding upon a claim for compensation under the law, "it shall be presumed in the absence of substantial evidence to the contrary (1) that the claim comes within the provisions of this chapter," etc. There was in this case substantial evidence to overcome this statutory presumption. A helper on the ice wagon and two cooks employed in the saloon where the ice was delivered, testified before the commission that they were present at the time and place when it was alleged the plaintiff was injured, and that they did not see any accident whatsoever happen to him, and that they did not see any cake of ice fall. The physicians who subsequently examined the decedent testified that there were no bruises, discolorations or abrasions on the surface of his body.

The finding of the commission is based solely on the testimony of witnesses who related what Carroll told them as to how he was injured. Carroll's wife testified that when he came home from his work he told her that he was putting a 300 pound cake of ice in Daly's cellar and the tongs slipped and the ice came back on him. The physician who was called to treat the injured man at his home, a neighbor who dropped in, and the physicians at the hospital, where he was taken later in the day, testified that he made like statements to them.

The question is presented whether this hearsay testimony is sufficient under the circumstances of the case to sustain the finding of the commission. The decision of the Appellate Division which affirmed the award was not unanimous, and, therefore, there is open in this court the question whether there was any evidence to sustain the finding.

It is a question with text-book writers whether the rules of evidence which exclude hearsay testimony are wise and well founded or not. It is argued by some that though such testimony is not supported by an oath, and is not subject to the test of cross-examination, it is, nevertheless, valuable. There are some jurisdictions in which it has been held that hearsay testimony is admissible (Insurance Co. v. Mosley, 75 U.S. 397), but the contrary has always been the rule of the courts in this state which have steadfastly resisted any innovation in the rule. (Waldele v. N.Y.C. H.R.R.R. Co., 95 N.Y. 274.) But we are not concerned here with any abstract question as to the wisdom or lack of wisdom in the law which excludes hearsay testimony.

We have only to consider whether the law of this state excluding such testimony has been changed in cases coming within the Workmen's Compensation Law by section 68 of that law. That section is as follows:

"Section 68. Technical rules of evidence or procedure not required. The commission or a commissioner or deputy commissioner in making an investigation or inquiry or conducting a hearing shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided in this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties."

This section has plainly changed the rule of evidence in all cases affected by the act. It gives the workmen's compensation commission free rein in making its investigations and in conducting its hearings and authorizes it to receive and consider not only hearsay testimony, but any kind of evidence that may throw light on a claim pending before it. The award of the commission cannot be overturned on account of any alleged error in receiving evidence.

This is all true, but, as I read it, section 68 as applied to this case does not make the hearsay testimony offered by the claimant sufficient ground to uphold the award which the commission made. That section does not declare the probative force of any evidence, but it does declare that the aim and end of the investigation by the commission shall be "to ascertain the substantial rights of the parties." No matter what latitude the commission may give to its inquiry, it must result in a determination of the substantial rights of the parties. Otherwise the statute becomes grossly unjust and a means of oppression.

The act may be taken to mean that while the commission's inquiry is not limited by the common law or statutory rules of evidence or by technical or formal rules of procedure, and it may in its discretion accept any evidence that is offered; still in the end there must be a residuum of legal evidence to support the claim before an award can be made. As was said by Justice WOODWARD in his able dissenting opinion at the Appellate Division: "There must be in the record some evidence of a sound, competent and recognizedly probative character to sustain the findings and award made, else the findings and award must in fairness be set aside by (the) court."

It is not necessary to consider in this case the constitutional limitations upon the power of the legislature to change the rules of evidence. It is sufficient to say that the intention of the legislature as revealed in the Workmen's Compensation Law was not so revolutionary in character as to declare that an award can be sustained which is dependent altogether on hearsay testimony where the presumption created by section 21 of the statute is overcome by substantial evidence.

The only substantial evidence before the workmen's compensation commission was to the effect that no cake of ice slipped and struck the decedent, and there were no bruises or marks upon his body which indicated, that he had been so injured. The findings to the contrary rest solely on the decedent's statement made at a time when he was confessedly in a highly nervous state, which ended in his death from delirium tremens. Such hearsay testimony is no evidence. (Matter of Case, 214 N.Y. 199.)

It is suggested that the hearsay testimony was admissible as part of the res gestæ; but, according to the rules of the courts of this state, the statements of the injured man in this case were not part of the res gestæ but were simply narratives of an event past and gone. (Greener v. General Electric Co., 209 N.Y. 135. )

Since this appeal was taken the workmen's compensation commission has been superseded by the industrial commission, but that change does not affect any of the questions that have been considered.

I recommend that the order appealed from be reversed and the claim for compensation be dismissed, with costs against state industrial commission, and that the question certified to this court be answered in the negative.