Maley v. Thomasville Furniture Co. , 214 N.C. 589 ( 1939 )

Seawell, J.

The appeal of defendants is based on exceptions to tbe admission of evidence wbicb they contend is hearsay and incompetent, and which, if excluded, would, as they contend, leave no competent evidence upon which the Commission’s findings of fact and award could be legally based; and to the findings of fact and the award. Reed v. Lavender Bros., 206 N. C., 898, 172 S. E., 877; Perdue v. State Board of Equalization, 205 N. C., 730, 172 S. E., 396. Plaintiffs contend that competent evidence relating to the accident and injury existed, and that this may be corroborated, supplemented, or explained by hearsay evidence under the practice in this jurisdiction and, generally, wherever Compensation Acts similar to ours are in force, citing Brown v. Ice Co., 203 N. C., 97, 164 S. E., 631; Johnson v. Bagging Co., 203 N. C., 579, 166 S. E., 586; Carlton v. Bernhardt-Seagle Co., 210 N. C., 655, 188 S. E., 77.

The defendants, however, failed to protect themselves against the introduction of the incompetent testimony of which they complain by proper objection and exception at the first hearing.

The hearing Commissioner, in the first instance, has been charged with the duty of hearing evidence and finding facts and making or declining an award; and subsequently, in case of demand for a hearing before the full Commission, he must make a report of the proceedings to that body. In Singleton v. Laundry Co., 213 N. C., 32, 34, 195 S. E., 34, the Commission, in the performance of its functions, has been said to act in somewhat the capacity of a referee, except that its findings of fact, when supported by evidence, are conclusive. "We think this principle can be extended to the duties and functions of the hearing Commissioner in the first instance with respect to the taking and transmission of evidence to the full board. The hearing before the full Commission is not entirely de novo. Section 59, chapter 120, Public Laws of 1929 — the Workmen’s Compensation Act — provides that in case a demand is made for a hearing before the full Commission the Commission “shall review the award, and if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award.” Under this section it is competent for the full Commission to reconsider the evidence taken before the hearing . Commissioner without hearing the witnesses again viva voce and give it such consideration as they may deem proper. Therefore, objection to the evidence should have been made when it was first offered, and we think that a subsequent formal objection to the evidence filed before the full Commission, accompanied by motion to strike, comes too late. In this particular case, practically all of the objections to the hearsay evidence were raised in this way.

The matter of reception and consideration of evidence before the Industrial Commission and in this Court upon review must be affected to some extent by the nature of the body before which it is offered and the manner in which the statute requires that body to perform its duties.

The Industrial Commission is an administrative board, with quasi-judicial functions. The manner in which it transacts its business is a proper subject of statutory regulation and need not necessarily conform to court procedure except where the statute so requires, or where, in harmony with the statute, or where it fails to speak, the Court of last resort, in order to preserve the essentials of justice and the principles of due process of law, shall consider rules similar to those observed in strictly judicial investigations in courts of law to be indispensable or proper. Section 54 of the Workmen’s Compensation Act empowers the Commission to make rules for carrying out the provisions of the act, and requires processes and procedure to be summary and simple. Section 58 provides: “The Commission, or any of its members, shall hear the parties at issue, or their representatives and witnesses, and shall determine the dispute in a summary manner.” Under these conditions we might expect a liberal treatment by the courts of the procedure adopted by the Commission with respect to the reception and consideration of evidence upon a claim in “dispute.” This is so obviously the intention of the statute that in one jurisdiction, at least, under a statute practically identical with ours, the Court has permitted the introduction of hearsay evidence freely, depending rather on the sound judgment and wise discretion of the Commission to save the practice from abuse- than upon the requirement of strict legal proof admissible in a court of law. American Furniture Co. v. Graves (Va.), 126 S. E., 213. While few courts have taken this extreme position, the decisions throughout the country are all marked with varying degrees of relaxation of the strict rules of evidence as applied to investigations of this kind. A recognized authority on the subject, Schneider’s Workmen Compensation Law, at page 1757, expresses the matter as follows:

“The well founded common law rule excluding hearsay evidence is not followed so strictly in compensation procedure, though the courts will not permit an award to stand which is based on hearsay evidence uncorroborated by facts and circumstances of other evidence.”

The further statement appears on page 1820:

“Where hearsay evidence has been admitted, an award will not be reversed where competent evidence on the same issue has been received but hearsay evidence uncorroborated by circumstantial evidence will not sustain an appeal.”

~We are much, enlightened as to the manner in which evidence should be received and considered before administrative boards, from the following excerpt, written by Chief Justice Hughes, in Consolidated Edison Company of New York, et al., v. National Labor Relations Board et al., and International Brotherhood of Electrical Workers, etc., v. National Labor Relations Board et al., handed down 5 December, 1938, found in Advance Sheets, United States Supreme Court, p. 11:

“The companies urge that the board received 'remote hearsay’ and 'mere rumor.’ The statute provides that 'the rules of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. Interstate Commerce Commission v. Baird, 194 U. S., 25, 44; Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U. S., 88, 93; United States v. Abilene & Southern Ry. Co., 265 U. S., 274, 288; Tagg Bros. & Moorhead v. United States, 280 U. S., 420, 442. But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence.”

Our Court has been inclined to regard examination before the Commission in the light of a judicial investigation only sub modo. In appropriate cases it has undertaken to say what is and what is not competent evidence'in that forum. Brown v. Ice Co., supra; Johnson v. Bagging Co., supra; Perdue v. State Board of Equalization, supra. In this connection it may be proper to say that the second headnote in Brown v. Ice Co., supra, is not sustained by the text of the opinion.

It does not follow that the Court has paid no deference to the administrative character of the Industrial Commission and the summary manner in which they are required by the statute to conduct their hearing. The decisions substantially recognize a modification of the strict requirements of judicial proof, to the extent that the findings and award will not be disturbed because of the presence in the case of hearsay testimony when there is other competent evidence, of sufficient probative force, upon which to base the findings. Cabe v. Parker-Graham-Sexton, Inc., 202 N. C., 176, 162 S. E., 223; Johnson v. Bagging Co., supra. The conservative attitude of this Court on the subject, intended to promote the highest degree of justice to both sides of the controversy, is not compromised by accepting the hearsay evidence found in this case as some corroboration or explanation of the circumstantial evidence relating to the accident and injury. The hearsay evidence must be considered as in the ease without objection. The principle on which hearsay evidence is excluded by rules of evidence relates to its competency, not to its relevancy. That it has probative force is unquestioned and there are numerous exceptions to the rule of exclusion.

But the circumstantial evidence relating to the injury, it seems to us, is of sufficient probative force to sustain the conclusion that deceased was injured by accident arising out of his employment and in the performance of his duty. In passing upon this evidence we must take into consideration matters of common knowledge; the character of the machine at which deceased was working, as being of a dangerous character and likely at one time or another to inflict injury upon one who operates it; the handling of rough plank upon a table, and feeding the same to the saw; and like matters within common experience. Of course, the deceased might have been stricken by an object from some other source while standing at his table and operating the saw, but for this also the defendants would have been ordinarily liable; or the deceased might have inflicted the injury upon himself, inadvertently or purposely, without reference to the duties of employment; but his injury from the operation of the machine is so much more probable as to take first place in such an analysis. Under these circumstances the deceased was found standing at his table, the saw in motion, with an injury upon his arm from which fresh blood was running. The cause of the injury is more than conjectural.

This case is easily distinguishable from Plyler v. Country Club, ante, 453, since in that case the evidence does not warrant an inference that deceased was injured while actually performing the duties of his employment as caddy; while in the case at bar Maley was found at his post of duty, his arm freshly bleeding, and surrounded by the physical conditions and circumstances calculated to bring about such an injury.

"We think the evidence sufficient to sustain the findings of fact and support the award, and the judgment is

Affirmed.