sues not raised by the answer. The Act contains no provision authorizing a default for failure to answer, and defaults are not al lowed by the Commission. The only function of the answer is to call the attention of the Commission to defensive matters relied upon. The Commission is not limited in the trial of causes to the issues raised by the pleadings, but may, on its own motion, investigate issues outside the pleadings, and will require an applicant substantially to prove his case, even though the defendant makes no answer thereto." The defense of the statute of limitations is nct lost by failure to plead it in answer. The Commission will not give opinions on hypothetical cases, or lay down general statements or rules of law binding upon it, aside from rulings necessary to the making of findings of fact, awards, and opinions upon issues arising in the causes submitted."

§ 228. Taking and reception of testimony

A Commission, in seeking out the truth and attempting to do justice to the parties under the Act, cannot be bound closely by the formal rules of evidence established by courts of law to prevent perversion of justice in jury trials. It must have the more liberal rules and methods of the equity courts. sider statements not made under oath. the Commission need not make its award upon the basis only of a stipulation of fact submitted by the parties, but may make further investigations of its own, and take further testimony.10 It is not

Some Commissions coUnder the California Act

4 Stoll v. Ocean Shore Railroad Co., 2 Cal. I. A. C. Dec. 81.

5 Id.

e Id.

7 Salvatore v. New England Casualty Co., 2 Cal. I. A. C. Dec. 355.

8 Patch v. First National Bank of Milwaukee, Rep. Wis. Indus. Com., 191+ 15, p. 9.

Frankfort General Ins. Co. v. Pillsbury (Cal.) 159 Pac. 150.

10 It was held in Biero v. New Haven Hotel Co., 1 Conn. Comp. Dec. 2 that in compensation proceedings before the Commissioner witnesses may be

bound by medical testimony of physicians, although unanimous. If such testimony is weak or contradictory, and unprofessional testimony is more probable, the Commission will be governed by the merits. That an effort to procure an adjournment proved futile did not make it incumbent on the Michigan Board to grant further time to take additional testimony.12

§ 229.

11

California

Due process of law requires that the party against whom a claim is presented shall have opportunity to be present when the evidence to sustain the claim is introduced.13 There is nothing in the California Act which requires taking of testimony in shorthand, although any party in interest at the hearing may at his own expense have a reporter present to take such testimony, if desired. All that is required is that the substance of the evidence given on material points be taken by the referee and reported to the Commission.14 The Commission may, without notice to either party, cause testimony to be taken, and where the only matter upon which it desires. information is of a scientific or mechanical nature, it feels no reluctance in selecting its own experts and in taking testimony from them without prior notice to either side. In such cases, however, it is the policy of the Commission to send a copy of such report to

examined not under oath, if due regard is had to such fact in weighing the evidence. In Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292, the Commissioner, with the approval of the parties, considered the written statements of surgeons who treated the applicant as evidence, though made out of court and not under oath (Wk. Comp. Act, § 25).

11 Snyder v. Pacific Tent & Awning Co., 3 Cal. I. A. C. Dec. 1.

12 (Pub. Acts Ex. Sess. 1912, No. 10, pt. 3, § 11) Redfield v. Mich. Workmen's Compensation Mut. Ins. Co., 183 Mich. 633, 150 N. W. 362.

13 Carstens v. Pillsbury (Cal. 1916) 158 Pac. 218.

14 McCay v. Bruce, 2 Cal. I. A. C. Dec. 54. The Act does not require that testimony taken at hearings be taken down verbatim by shorthand or otherwise. A referee is only required to report to the Commission the substance of the evidence received by him upon the issues.

Id.

all parties interested, so that they may have an opportunity to reply or controvert the testimony before a decision is reached.15 While stipulations may bind the parties, the Commission in all proceedings in which evidence is introduced will make the facts, and not the stipulations the determining factor, where it appears that the stipulations were entered into under a misapprehension.16 Though the parties have stipulated that the conclusions of medical referees appointed by themselves shall fix the extent of disability, the Commission has power, with or without notice or application, to direct an examination by another physician, and to base an award on his report.1 In certain cases reliance must be placed upon the evidence of physicians as to the existence of disability. Where the opinion of physicians is that the disability is not sufficient to prevent the injured employé from resuming his employment, the Commission will be guided by it.18 Where simulation or malingering by an applicant is alleged, the Commission will go to great pains and considerable expense to determine the issue fairly, to prevent fraud and imposition. Usually it will cause him to be examined by experts of its own selection, in addition to the medical testimony presented by

15 De Long v. Krebs, 2 Cal. I. A. C. Dec. 256.

The power to take testimony without notice to the parties will be used reluctantly, and almost never where issue has arisen and the evidence may be conflicting. Where, however, the issue is simply one of scientific or mechanical fact, the Commission will select its own experts, without notice to the parties, as it sees fit. Its policy is, however, to submit the reports of such experts to the parties, and allow an opportunity for criticism before decision is reached. Id.

The Act (section 24, subd. “b”) expressly confers on the Commission the power to take testimony without notice to either party. Id.

16 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991.

17 (Wk. Comp., etc., Act, § 24) Leyman v. Amalgamated Oil Co., 2 Cal. I. A. C. Dec. 921.

18 Batchelder v. Kreis, 1 Cal. I. A. C. Dec. 63. Certain issues are for medical practitioners to determine, and the Commission must rely on their best judgment and scientific knowledge. Rollnik v. Lankershim, 1 Cal. I. A. C. Dec. 45.

each side.1 The Commission would frequently err if it permitted its decision to be made wholly upon the evidence as it came to it in the form of a verbatim transcript. Honest witnesses are sometimes blundering, and a too liberal interpretation of their transcribed testimony may cause it to appear contradictory, when in fact it was not intended that way. In such cases the written evidence may properly be qualified to some extent by the impression made upon the mind of the person holding the hearing.20 In the interest of expedition and inexpensiveness of procedure the technical rules of evidence are not to be permitted to draw out trials to an unnecessary length or unduly increase the expense thereof.21

§ 230. Hearing, findings, and award

The award must be supported by the findings of fact, and every finding of fact must have some substantial evidence in its support, though not necessarily the preponderance of evidence.22 It must

19 Gordon v. Evans, 1 Cal. I. A. C. Dec. 94.

20 Johnson v. Sudden & Christenson, 1 Cal. I. A. C. Dec. 422.

21 McDonald v. Globe Laundry Co., 2 Cal. I. A. C. Dec. 217.

22 (St. 1911, § 2394-19) Voelz v. Indus. Com., 161 Wis. 240, 152 N. W. 830. International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

It is essential that the finding of the arbitrators be sustained by competent and legal evidence. Victor Chemical Works v. Indus. Board of Ill. (1916) 274 Ill. 11, 113 N. E. 173. The New York Commission's determination as to the facts, being a quasi judicial determination, must rest on the facts presented to it. The Commission cannot arbitrarily act on the information it receives, or in direct violation of the conceded facts, but must base its determination on the undisputed facts and the reasonable inferences to be drawn from the general situation. Gardner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. The Commission cannot make an award, in the absence of at least some evidence that the employé met with an injury while he was at work for the specified employer, and as a consequence of something that had a relation to the work of the employer, something done by him or by others while he was so employed. Collins v. Brooklyn Union Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 957.

result from this that a finding of fact made by a Commission cannot be based on mere conjecture any more than a finding of fact made by a court. It does not require so much evidence in its support, but it cannot be upheld without evidence.23

The finding and award must give all facts essential to the case in hand, and such questions of law as were presented and ruled on. No other or further detailed finding is required.24 The finding of a Commissioner under the Connecticut Act should not contain excerpts from evidence and purely evidential facts, but should merely

23 Voelz v. Indus. Com., 161 Wis. 240, 152 N. W. 830.

The statute contemplates and provides for a full and fair hearing, and that the decision of the Commission shall be based on evidence, and not arbitrarily made. It would seem to be clearly outside of its powers to find essential facts that had no support in the evidence. International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330. Inferences from the evidence such as a reasonable man might draw may be made by the Industrial Accident Board, but such inferences must not amount to mere conjecture or speculation. In re Sanderson's Case (Mass.) 113 N. E. 355.

24 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.

In the opinion of the California Commission, it is not required by the Act to make its findings upon all issues raised by the application and denied in the answer. It is required merely to make its findings upon all facts necessary to entitle the injured employé to compensation. This requirement is satisfied by a bare finding that such facts are or are not established, without going into detail thereon. Nevertheless, without conceding any duty to do so, the Commission will, upon special request, make a detailed finding upon any material fact. Rudder v. Ocean Shore Railroad Co., 1 Cal. I. A. C. Dec. 209. The Commission is not required by law to make detailed or special findings. The consideration of the convenience of the Commission is certainly against its being required to prepare detailed findings in every uncontested case or upon every uncontested issue, where a finding directly of the fact to be established will fill every requirement for disposal of the case. Where there are serious issues involved, the practice of the Commission to incorporate in its opinion a review of the evidence and the principles of law involved is all that is necessary to indicate the basis upon which the decision is reached. Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. Although the Commission is not required to make special or extended findings of fact, it will do so upon reasonable request, to avoid embarrassing counsel in their endeavor to place questions of law, or mixed questions of law and fact, before the courts. of the state for review. Id.