This case presents the question whether hearsay evidence, which the workmen's compensation commission after examination deem to be credible, may furnish a sufficient basis to sustain an award made by that commission. The award that was made rests upon the declaration of the injured man to his wife and physician and to another witness shortly before his death. These declarations related to the manner in which he sustained the injury from which he subsequently died. The learned Appellate Division has sustained the award. I think the decision which is now the subject of review is correct. To sustain this award does not mean that the commission are obliged to act upon all hearsay evidence that is presented, but only that it may act upon it where the circumstances are such that the evidence offered is deemed by the commission to be trustworthy. The Workmen's Compensation Law is an insurance scheme by which compensation is received for personal injuries or death happening in the course of employment. The fund out of which compensation is paid is created by means of contributions which employers are required to pay. Liability under the law is dependent upon injury in the course of employment, not upon contract or fault. (Matter of Jensen v.Southern Pacific Co., 215 N.Y. 514, 519.) It was because liability was not made to depend upon contract or fault that a prior law designed to accomplish a similar purpose was declared unconstitutional by this court on the ground that the liability sought to be imposed was unknown to the common law. (Ives v.South Buffalo Ry. Co., 201 N.Y. 271, 294.) Since the decision in the Ives case, the *Page 443 Constitution of the state has been amended, and ample power to enact such a law has been conferred upon the legislature. (Art. I, sec. 19, New York Constitution.) In view of this constitutional provision it is unnecessary to determine whether the liability imposed under this law is based upon common-law principles or whether it is based upon principles derived from other systems of jurisprudence. Legislation similar in character seems to have been first successfully applied in Germany. The spirit in which legislation of this character has been applied in Germany is set forth in a pamphlet entitled "The German Workmen's Insurance as a Social Institution," prepared by Dr. Ludwig Lass, imperial government counselor at the imperial insurance office, and compiled and published under the order of that office. In that pamphlet Dr. Lass says: "While the arrangements of the administration and jurisdiction have been made with a view to further social interests, as has been shown above, the question of the interpretation of the workmen's insurance laws has also been settled not only from juridical, but also social points of view, in accordance with the spirit of these laws. In the interpretation of the laws an earnest endeavor is shown, above everything, to give material justice its due, while formal jurisprudence has to stand back. In cases where any legal provision is susceptible of several constructions, that interpretation is preferred, when doubts arise, which corresponds to the intentions of the legislator from the social point of view. There is no anxious clinging to the dead letter; on the contrary, the interpretation is liberal and in keeping with the spirit of the legislation. In this respect, for instance, the interpretation may be mentioned which has been given by Imperial Insurance Office to the words `accident,' `work' and `industrial accident.' Further, mention must be made of the fact that inworkmen's insurance matters not the same severe standard isapplied by the Imperial Insurance Office to proof, as iscustomary for disputes in *Page 444 common law. Thus, proof of probability is often considered sufficient. This is important, for instance, with deaths the causes whereof are not cleared up. If a workman is found dead onthe working premises and the cause of his death cannot beascertained, the claims of his survivors, according to strictlaw, ought to be declined. But according to the jurisdiction ofthe Imperial Insurance Office the claims for compensation areadmitted in cases of this kind, if there is a probability —especially on account of the position of the body — that thedeath has been caused by anything belonging to the work. A similar view is taken by jurisdiction in the numerous doubtful cases where the accident itself, or the connection between the injury or death of an injured person and the accident, cannot be sufficiently proved." (page 29.)
I think the passage just quoted is significant as revealing the method of interpretation which must be applied if the social benefits which the law was designed to promote are to be substantially realized. It is in this spirit rather than in a spirit of devotion to common-law methods of proof that the legislature enacted this law. That this is the case appears from the whole purpose of the legislation and particularly from section 68 of that law. In that section it is stated that the commissioners in making the "investigation or inquiry or conducting a hearing shall not be bound by common law orstatutory rules of evidence, * * * but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties." In this statute we have not only explicit sanction for a departure from common-law methods of proof, but a direct legislative command that the commission "shall not be bound by common law or statutory rules of evidence." In the face of this legislative provision I think there is no justification for rendering the Workmen's Compensation Law subject by judicial interpretation to the technical common-law *Page 445 system of evidence. That the common-law classification of the rules relating to hearsay evidence is far from satisfactory is well pointed out in the extract from the work of Prof. Thayer, which my brother POUND has quoted in his opinion. The Workmen's Compensation Law is a new step in the field of social legislation. We should interpret it in accordance with the spirit which called it into existence. Our reverence for the traditional rules of our common-law system should not lead us to restrict it by subjecting it to the operation of these rules. This court is under no obligation to see to it that laws enacted to remedy abuses arising from new industrial and social conditions shall be made to square with ancient conceptions of the principles of the common law. Indeed, if the common law had not had woven into it by judicial construction the doctrines of assumption of risk and fellow-servant, and the doctrine of contributory negligence, it is doubtful whether the legislation now under consideration would have been rendered necessary. While judges and text writers have often made sweeping generalizations condemnatory of hearsay evidence, the many "exceptions" to the rule prohibiting such evidence show that we have not been able to get along without a frequent resort to it. In cases of homicide dying declarations as to the cause of death are received in evidence, and it is quite within the legislative power to sanction the admission of evidence of a similar kind in cases arising under the Workmen's Compensation Law. The difficulty in proving the cause of death in cases where the person injured dies as a result of the injury has long been recognized, and even in ordinary actions based on negligence the rules requiring proof of freedom from contributory negligence on the part of the deceased are relaxed to some extent. In the case now under consideration the injured man was taken from the place where he was working to his home, and into the presence of his wife and physician. The wife and physician naturally inquired as to how the *Page 446 accident happened, and the injured man told them. The evidence of these persons is now the only evidence available which can explain the cause of death. The commission examined and cross-examined these witnesses, and was satisfied that they correctly reported what the injured man had related shortly before his death and believed that the narrative which the injured man gave was correct. I think that the commission were justified in basing an award upon this testimony and that the language of section 68 of the Workmen's Compensation Law expressly authorized them so to do.
If it were necessary to do so the award made could well be sustained upon the ground urged by my brother POUND in his opinion. I think, however, that it is more in harmony with the spirit of this legislation and with the express provision of section 68 that we should frankly recognize that the commission are not limited by the common-law methods of proof and that if they were satisfied that the so-called hearsay evidence that was offered was credible they were justified in basing their award upon that evidence.
It is said in the prevailing opinion that "this section does plainly permit the introduction of hearsay testimony in all cases affected by the act, but still it does not, * * * make hearsay testimony, unsupported by other evidence, sufficient ground to sustain such a finding of fact as the commission made in this case." The distinction sought to be made between admitting such evidence and basing an award upon it seems to me to be unreasonable and not to find support in anything contained in section 68. In conceding that section 68 sanctions the introduction of hearsay evidence the argument of the appellant is left without any foundation upon which to rest. If the legislature sanctioned the admission of this evidence it follows by necessary implication that it intended to authorize the commission to act upon it. In resting the judgment about to be rendered upon this *Page 447 ground the court concedes that the evidence upon which the commission acted was legal evidence, but holds that it was insufficient to sustain an award. If section 68 sanctions the reception of hearsay evidence there was legal evidence before the commission and if there was any legal evidence before the commission to sustain the award this court has no power to reverse the determination that was made.
I vote in favor of affirming the judgment of the Appellate Division.