I do not like to differ with my associates, as I am thoroughly in sympathy with the claimant and his family and feel relieved that this court is ordering the payment of the compensation at once. I cannot, however, violate my sense of duty to respect the equal rights of all litigants before this court.
At the hearing before both the Compensation Board and before the district court the defendant Aetna Insurance Company denied that there was any insurance policy in effect. The board and the district court both found that there was no insurance. No testimony relating to the question of liability and the amount thereof was offered, as it was unnecessary if no insurance. The situation was identical to a cause where a nonsuit is ordered at the close of plaintiff's case. In the case of a nonsuit no further testimony would be permitted. Perhaps the law should, to save time, be so amended that the testimony on the merits could be taken at the hearing, to be considered if the insurance policy was, on appeal, held to be in effect. We have no such law, and this court is not clothed with authority to make any law to that effect.
We cannot decide this case with the testimony of only one side before the court; neither can we order the district court or the board to make a finding in favor of claimant with only half the testimony before them. "Every man is entitled to his day in court." This universal rule works a hardship in this case, but it cannot be avoided unless we shut our eyes to the most fundamental and universally accepted principles of law.
It is four years since this man was injured and he is entitled to his compensation. He has been diligent in his efforts to get it. Perhaps his suffering and sacrifice will hasten a much-needed reformation of the Compensation Act, often erroneously called the "Poor Man's Court." If so, his sacrifice will not be in vain. Christ's crucifixion emphasized his character as no other circumstance could have done, all to the good of mankind. *Page 213
I regret to dissent, but no other course is left me unless I wholly disregard my conception of the laws I was elected to uphold.