Mailman v. Record Foundry & Mach. Co.

• Decision Date: 27 May 1919
• Citation: 106 A. 606
• Parties: MAILMAN v. RECORD FOUNDRY & MACHINE CO. et al.
• Court: Maine Supreme Court

106 A. 606

MAILMAN

v. RECORD FOUNDRY & MACHINE CO. et al.

Supreme Judicial Court of Maine.

May 27, 1919.

Appeal from Supreme Judicial Court, Androscoggin County, at Law.

Proceeding under the Workmen's Compensation Act by Helen B. Mailman, for compensation for the death of William Mailman, against the Record Foundry & Machine Company and another. There was finding for the dependent, and from the decree of a single justice of the Supreme Judicial Court, rendered in accordance with such finding, defendants appeal. Appeal denied, and decree affirmed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

Andrews & Nelson, of Augusta, for appellants.

McGillicuddy & Morey, of Lewiston, for appellee.

DEASY, J. Proceeding under the Workmen's Compensation Act (Rev. St. c. 50). Helen B. Mailman, widow and dependent of William Mailman, alleges that her husband died from an "accident arising out of and in the course of his employment" by the Record Foundry & Machine Company.

William Mailman, a night watchman, went to work as usual on April 18, 1917. The following morning he was discovered at the foundry in a state of collapse. He developed pneumonia and peritonitis, and after a few days died. His dependent claimed that his pneumonia was traumatic—i. e., the result of an injury—and that the injury was due to an accident sustained by the deceased while alone at the foundry on the night of the 18th. The chairman of the Industrial Accident Commission found in favor of the dependent. From the formal decree of a single justice rendered in accordance with such finding the defendants appeal. To avoid confusion we shall refer to the dependent as the plaintiff.

Jurisdiction.—"His [chairman of Industrial Accident Commission] decision, in the absence of fraud, upon all questions of fact shall be final. * * * Such decree [decree of single justice in accordance with finding of chairman] shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though rendered in a suit in equity duly heard and determined by said court, except there shall be no appeal therefrom upon questions of fact found by said commission or its chairman." R. S. c. 50, § 34.

In the absence of fraud this court is precluded by positive law from acting as a trier of facts. It does not review the facts. Another tribunal has final jurisdiction for this purpose. The Supreme Judicial Court finally determines questions of law. For this purpose its members, or a majority of them, sit as a court of law. It possesses this power, whether sitting as a court of common law or of equity, or to decide probate appeals, or appeals from quasi judicial tribunals like the Industrial Accident Commission. The Constitution does not and the Legislature cannot abridge this power.

But it does not in all cases finally determine questions of fact.

In equity causes the court sitting in banc speaks the final word both as to law and fact. So in actions at common law reported by consent of parties. But in other common-law causes, with immaterial exceptions, the Constitution guarantees trials of fact by a jury; in probate appeals, under a system sanctioned by long usage and repeated decisions, a single judge passes finally on facts; and in causes arising under the Workmen's Compensation Act the chairman of the Industrial Accident Commission is by statute made the trier of facts, and his decrees are, in the absence of fraud, final.

The constitutionality of a law vesting such a power in a tribunal not a court with a jury, and which is partly and perhaps primarily administrative, has been questioned.

The Maine Workmen's Compensation Act is elective. No employer or employe is bound to submit to it without his assent, actively or passively manifested. Substantially similar statutory provisions have been upheld generally by courts. State v. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A. (N. S.) 694; Cunningham v. N. W. Imp. Co., 44 Mont. 180, 119 Pac. 554; Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Sexton v. Newark Co., 84 N. J. Law, 85, 86 Atl. 451; Hunter v. Colfax Consol. Coal Co., 175 Iowa, 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. Cas. 1917E, 803; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Deibeikes v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241; Sayles v Foley (R. I.) 96 Atl. 340. For reasons which are in these cases mobilized in compelling force, we hold that the Maine Compensation Act is not violative of the Constitution in respect to the method by it provided for the exclusive determination of issues of fact.

Burden of Proof.—In the hearing before the commission the plaintiff has the burden of proof. Von Ette's Case, 223 Mass. 59, 111 N. E. 696, L. R: A. 1910D, 641; Sanderson's Case, 224 Mass. 562, 113 N. E. 355.

For this reason a finding in favor of the plaintiff of any essential fact without proper evidence is an error of law. To sustain the decree it must appear that there was produced at the trial of facts competent legal evidence of three things, to wit, that the deceased died or was disabled as the result of (1) an accident arising (2) out of and (3) in the course of his employment by the defendant. R. S. c. 50, § 11.

Questions of Law Involved.—The defendants contend that the commissioner fell into errors of law in the following respects: (1) That he admitted incompetent, to wit, hearsay, testimony, and based his decree wholly or partly upon it; and (2) that he made his decree in favor of the plaintiff with no competent evidence supporting certain essentials of her case.

Hearsay Testimony.—The commissioner permitted witnesses to rehearse the story of the accident as told by the deceased. This was hearsay testimony, plainly inadmissible. But the allowance of hearsay evidence by the commissioner does not require this court to reverse his decree, unless such decree was in whole, or in part, based upon such incompetent testimony. Pigeon's Case, 216 Mass, 55, 102 N. E. 932, Ann. Cas. 1915A, 737; Derinza's Case, 229 Mass. 444, 118 N. E. 942; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 249; Kinney v. Cadillac Motor Co., 199 Mich. 435, 165 N. W. 651.

Were the court convinced that hearsay influenced the decree, it would be required to sustain the appeal. We perceive, however, no sufficient reason for questioning the commissioner's statement that he made his finding of fact "wholly disregarding the hearsay evidence."

The commissioner permitted the introduction of testimony that when the deceased was discovered, on the morning of April 19, 1917, he said, "I got hurt," and then or afterward indicated where he was hurt. Counsel for plaintiff urges that this testimony was admissible as a part of the res gestae This contention is sound. It is admissible, but only as tending to show the physical condition of the deceased at the time.

If the man had been groaning or screaming, no law would forbid proof of such fact The rule remains the same where pain finds articulate expression. Heald v. Thing, 45 Me. 394; Hutchins v. Ford, 82 Me. 378, 19 Atl. 832; Barber v. Merriam, 11 Allen (Mass.) 322.

But the effect of this testimony is limited by its purpose. It must be treated as an expression of present condition, and not as an abbreviated narrative of an occurrence in even the immediate past. Asbury Insurance Co. v. Warren, 66 Me. 529, 22 Am. Rep. 590; Gosser v. Ohio Valley Water Co., 244 Pa. 59, 90 Atl. 540, Ann. Cas. 1915C, 685; Peoria Cordage Co. v. Ind. Board, 284 Ill. 90, 119 N. E. 990, L. R. A. 1918E, 822; Boyd on Workmen's Compensation," 1123; Bradbury on Workmen's Compensation (2d Ed.) 800.

Evidence Required to Support Decree.—There must be some competent evidence. It may be "slender." It must be evidence, however, and not speculation, surmise, or conjecture. Von Ette's Case, 223 Mass. 60, 111 N. E. 696, L. R. A. 1916D, 641; Sponatski's Case, 220 Mass. 528, 108 N. E. 466, L. R. A, 1916A, 333. While no general rule can be established applicable to all cases, certain principles are clear:

If there is direct testimony which, standing alone and uncontradicted, would justify the decree, there is some evidence, notwithstanding its contradiction by other evidence of much greater weight.

If the case must be proved wholly or in part circumstantially, and there is a dispute as to what the circumstances are, the determination of such dispute by the commissioner is final. It is for the trier of facts, who sees and hears witnesses, to weigh their testimony and without appeal to determine their trustworthiness.

But the inferences which the commissioner draws from proved or admitted circumstances must needs be weighed and tested by this court. Otherwise it cannot determine whether the decree is based on evidence or conjecture.

In other words, the court will review the commissioner's reasoning, but will not, in the absence of fraud, review his findings as to the credibility and weight of testimony.

"In cases of this class the Supreme Court is not authorized to determine the preponderance or weight of testimony." Nevich v. Delaware, L. & W. R. Co., 90 N. J. Law, 230, 100 Atl. 234, L. R. A. 1917E, 847.

"On a review of the findings of the Industrial Board, the court does not pass on the weight of the evidence as to controverted facts." Albaugh-Dover Co. v. Ind. Board, 278 Ill. 179, 115 N. E. 834.

"Its conclusion [the commission's conclusion in matters of fact] is not subject to review by the courts, unless palpably contrary to the undisputed evidence." Frankfort Ins. Co. v. Pillsbury, 173 Cal. 56, 159 Pac. 150.

"We have said so often the real question is whether there is evidence in the record to support the finding, and that we are not concerned with the weight of evidence, that we shall not discuss the matter." Oniji v. Studebaker Corp., 196 Mich....