219. Burden of proof and evidence to sustain it-Presumption.

The Legislature cannot delegate to a commission the power to regulate and prescribe the nature and extent of proof.31 While administrative commissions or boards are not held to the same strict rule with respect to rulings on the admission of evidence as courts of law,32 evidence admissible in courts is properly received in proceedings before these tribunals, and the ordinary rules as to

31 Workmen's Compensation Act, § 75, subd. 6, purporting to give the Commission power to regulate and prescribe the nature and extent of the proofs of evidence, is an attempted delegation of power, violative of Const. art. 22, § 21. Englebretson v. Indus. Acc. Com., 170 Cal. 793, 151 Pac. 421.

32 First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 847; Chicago & N. W. Ry. Co. v. Railroad Commission, 156 Wis. 47, 145 N. W. 216, 974; Borgnis et al. v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489. The Commission is not confined to the evidence taken on the hearing in the same degree as courts are in their proceedings. The Compensation Act contemplates that the Commission shall get all the facts and information available and render its award accordingly. Winters v. Mellen Lumber Co., Bul. Wis. Indus. Com. vol. I, p. 89.

33 In re Fierro's Case, 223 Mass. 378, 111 N. E. 957.

Documentary evidence.-Printed reports of the United States Bureau of Mines, written by an expert, bearing on the causes and effects of carbon monoxide poisoning, are admissible, though read in evidence by another witness, the expert not being produced. Markt v. National Brewing Co., 2 Cal. I. A. C. Dec. 881. Permission was granted a witness, without objection by the adverse party, to send in a written statement elaborating his oral testimony given on the stand, wherein he set forth the details of certain

order of proof are usually followed. Where a case has been submitted by agreement of a defendant upon the testimony previously taken, he will not be granted the privilege of producing further testimony, which could have been produced before. A memorandum relative to the injury, entered by the foreman of the department in which the employé worked, is admissible in evidence as an admission against the employer that the injury occurred in the course of employment, where it was the foreman's duty to make such entries.35 Conversation over the telephone is competent to prove notice.36 Evidence as to the manner in which the injury was received is ordinarily irrelevant, and should be excluded, where it

occurrences similar to the alleged occurrence in dispute. Such statement was admissible as a continuation of the sworn oral testimony, to the extent that the oral testimony was admissible. Id. An original certified power of attorney by an alien dependent may be accepted as evidence in proving a claim. (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6.

Testimony of a deceased witness, taken in some other and different proceeding than the one in which the same is sought to be introduced, is not admissible. Rediger v. Pekin Wagon Co., Bulletin No. 1, Ill., p. 146.

Ex parte affidavits and depositions, not in conformity with the statute or rules of court, are not the best evidence, and are not admissible to establish any fact or question at issue. Rediger v. Pekin Wagon Co., Bulletin No. 1, Ill., p. 146. The Industrial Board has the power to issue a dedimus potestatem, and under rule 17 has the right to permit the evidence so taken to be read on the trial of the cause. Cardinale v. Valencano, Bulletin No. 1, Ill., p. 114.

Competency of witness.-It is not sufficient to preclude a physician from testifying that he has been appointed by the Board to make an examination and report his findings, unless it is clearly shown he is biased and prejudiced. Krisan v. American Steel Foundries, Bulletin No. 1, Ill., p. 156.

Expert testimony.-Where two experts called in by the Commission agreed with the conclusion of the physicians who had treated the applicant, the Commission held that its only safe ground was to get absolutely impartial expert evidence, and then follow it so far as it coincided with reason and judgment. Derbeck v. Pfister & Vogel Leather Co., Bul. Wis. Indus. Com. vol. I, p. 92.

34 Witt v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 861.

85 Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 154 N. W. 67.

86 Cutaria v. Swieberg, Bulletin No. 1, Ill., 153.

will tend to arouse prejudice against the employer, as where it shows ill treatment of the employé by the employer's foreman." Unsworn opinion evidence, given without notice to the employer or insurer, or opportunity to interrogate the witness or make additional proof, should not be considered.38 While, on review by the courts of many states, the finding of a coroner or his jury is inadmissible in evidence on the trial of an issue as to the cause of death, the rule is otherwise in Illinois, and in that state the inquest of the coroner and the verdict of the jury are competent evidence." An admission by an employer against his interest should be given its full force, the same as in an action at law, and is equally good against his insurance carrier.40

A provision authorizing a Commission to disregard "technical rules" does not usually authorize an award made on hearsay evidence; the rule against hearsay evidence being more than a mere artificial technicality of law. Many considerations preclude the

41

37 Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403.

38 Pacific Coast Casualty Co. v. Pillsbury, Indus. Acc. Com., 171 Cal 319 153 Pac. 24; McCay v. Bruce, 2 Cal. I. A. C. Dec. 975.

39 Armour & Co. v. Indus. Board of Ill. (1916) 273 Ill. 590, 113 N. E. 15, Victor Chemical Works v. Indus. Board of Ill. (Ill. 1916) 274 Ill. 11, 113 X. E. 173.

The admissibility of such evidence has been declared in the following cases. which include actions on contract of life insurance, a suit to set aside a wil and actions arising from negligence: United States Life Ins. Co. v. Vocke, 129 Ill. 557, 22 N. E. 467, 6 L. R. A. 65; Pyle v. Pyle, 158 Ill. 289, 41 N. E 999; Stollery v. Cicero & Proviso Street Ry. Co., 243 Ill. 290, 90 N. E. 79 Grand Lodge I. O. M. A. v. Wieting, 168 Ill. 408, 48 N. E. 59, 61 Am. S. Rep. 123; Foster v. Shepherd, 258 Ill. 164, 101 N. E. 411, 45 L. R. A. (N. §. 167, Ann. Cas. 1914B, 572; Devine v. Brunswick Balke Co., 270 II. 304, 120 N. E. 780. There is no distinction in principle between these cases and such as arise under the Workmen's Compensation Act. Armour & Co. v. Indus Board of Ill. (1916) supra.

40 Moss v. Ames Iron Works, The Bulletin, vol. 1, No. 8, p. 9. 41 Englebretson v. Indus. Acc. Com., 170 Cal. 793, 151 Pac. 421; Re T. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

An award based on hearsay evidence will be set aside. Englebretson v.

admission of hearsay evidence. The unreliability of a relation by one person of statements made to him by another is so well known that it has become customary and is considered necessary for courts, in cases where oral admissions of a party are proved against him, to instruct the jury that they must view such admissions with caution, because of the tendency of witnesses to make perverted or inaccurate reports. There are many decisions of courts of the highest standing declaring the importance and substantial character of the rule against hearsay testimony. It has been said that the fact "that this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible. * *The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule, the value of which is felt and acknowledged by all. If the circumstance that the eyewitnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily Indus. Acc. Com., supra; Employers' Assur. Corp. v. Indus. Acc. Com., 170 Cal. 800, 151 Pac. 424. The rule against the admission of hearsay evidence as proof of a fact is more than a mere technical rule of admission, and is not to be considered as one of the technical rules of evidence referred to in section 77 of the Compensation Act. Englebretson v. Indus. Acc. Com., 2 Cal. I. A. C. Dec. 449. The Industrial Accident Commission has no power to make an award, where the only evidence of accidental injury consists of hearsay testimony, notwithstanding the provision of section 77 of the Compensation Act that hearings before the Commission "shall be governed by this Act and by the rules of practice and procedure adopted by the Commission, and in the conduct thereof neither the Commission nor any member thereof nor any referee appointed thereby shall be bound by the technical rules of evidence," and notwithstanding the provision of subdivision 6 of section 75, which purports to give to the Commission the power "to regulate and prescribe the nature and extent of the proofs and evidence." Id.

obtained." 42 But, under the provision of the New York Act that the Commission shall not be bound by statutory rules of evidence or technical rules of procedure, the Commission is authorized to receive and consider, not only hearsay testimony, but any kind of evidence that may throw light on a claim pending before it." In this connection it should be noticed, however, that though the New York Commission in its investigations may receive hearsay

42 Englebretson v. Indus. Acc. Com., 170 Cal. 793, 151 Pac. 421, quoting Chief Justice Marshall, in Queen v. Hepburn, 11 U. S. (7 Cranch) 296, 3 L. Ed. 3⁄4å holding that the reasons for excluding hearsay evidence were these: "First because the averment of fact does not come to the jury sanctioned by the oath of the party on whose knowledge it is supposed to rest; and, secondly, because the party, upon whose interests it is brought to bear, has no oppor tunity to cross-examine him on whose supposed knowledge and veracity the truth of the fact depends"-citing 1 Greenleaf on Evidence (16th Ed.) 195 183, § 99a, wherein Mr. Greenleaf says: "To these reasons may be added considerations of public interest and convenience for rejecting hearsay erl dence. The greatly increased expense and the vexation which the adverse party must incur in order to rebut or explain it, the vast consumption of puł lic time thereby occasioned, the multiplication of collateral issues for decisio by the jury, and the danger of losing sight of the main question and of the justice of the case if this sort of proof were admitted, are considerations too grave a character to be overlooked by the court or the Legislature in de termining the question of changing the rule." The above case also cites! Wigmore on Evidence, p. 1697; Woolsey v. Pethick Bros., 1 Butterworth, 411; Gilbey v. Great Western Ry. Co., 102 L. T. 202, 3 Butterworth, 135; Azys ▼ Barton, 5 Butterworth, 117.

43 (Laws 1914, c. 41, § €8) Carroll v. Knickerbocker Ice Co., 218 N. Y. 113 N. E. 507, reversing 169 App. Div. 450, 155 N. Y. Supp. 1; Putar . Murray, The Bulletin, N. Y., vol. 1, No. 4, p. 9.

Commissioner Lyon said in Stadtmuller v. Travelers' Insur. Co., The Bulle tin, N. Y., vol. 1, No. 4, p. 9, that "it would be perfectly proper for the Comission, if it thought the weight of the hearsay evidence efficient, to grant compensation on that evidence alone, but if it were the only evidence in the case I should personally hesitate very seriously before doing so. I do not understand that the opinion of the Appellate Division goes any farther than to make it possible for this Commission, in carefully weighing evidence, to make a finding upon hearsay evidence alone. I do not understand that the Appellate Division has in any way intimated that this Commission should m such a finding on such evidence, unless it is convinced by the weight of :

evidence of its truth.