This is a proceeding under Chapter 831 of the Public Laws of 1912, known as the Workmen's Compensation Act. The petitioner is the widow and dependent of Reuben O. Jillson and seeks to recover, under the terms of said act, compensation for the loss of her husband who was drowned in Stump Hill Pond, in the town of Lincoln, on the 30th day of January, 1914. He was an employee of the respondent.
The issues raised by the respondent's answer to the petition are (1) whether the death "arose out of the employment" and (2) whether the death occurred in the course of the employment.
The hearing on said petition in the Superior Court resulted in findings of fact that Reuben O. Jillson, upon the day of his death, was in the employ of the respondent and that while so engaged he received personal injuries arising out of and in the course of his employment, and a decree was duly entered embracing such findings.
From this decree the respondent claimed an appeal to this court upon all questions of law or equity decided adversely to him thereby. This appeal brings to us two questions for consideration: (1) Was there any evidence and (2) Was there any sufficient evidence that the death of Jillson either arose out of his employment or in the course of his employment?
The majority opinion holds that the sufficiency of the evidence supporting the findings of the Superior Court cannot be inquired into by this court on appeal and that this *Page 156 court has no revisory power under the statute unless the record discloses that the findings of fact are entirely without evidence to support them, in which case the findings would amount to an error of law and would be reviewed by this court, upon appeal, and set aside.
This deduction is based upon Section 6 of Chapter 831 of the compensation act which, in reference to the decree of the Superior Court embracing findings of fact, says: "Such decree shall contain findings of fact, which, in the absence of fraud, shall be conclusive."
I cannot give to this portion of the statute the extremely broad, comprehensive and extended meaning which the majority opinion confers upon it. I do not think that it was the intention of the General Assembly, in making use of the language quoted, to abridge the power of this court in the consideration of any question of law which might arise in the Superior Court and be properly brought before us on appeal. I do not think that there was any intention on the part of the General Assembly to establish a different rule in cases of this character, so far as this court is concerned, from that which obtains in the trial of other cases where this court inquires into and determines not only as to the existence, but as to the sufficiency of evidence in support of the conclusions reached by the court below. The questions as to whether the employee sustains injury as a result of and in the course of his employment are undoubtedly questions of fact, but the questions as to whether the findings of the court are supported by any evidence or by sufficient evidence are questions of law. In re Nickerson, 105 N.E. 604; In reBuckley, 105 N.E. 979. In the case of Gane v. Norton HillColliery Company, 2 B.W.C.C. 42, it was held that the inference to be drawn from facts, either found or admitted, was a question of law to be reviewed by the appellate court.
These questions being questions of law, the denial of this court to entertain an appeal from the decree of the Superior Court, in which this court is asked to determine whether or not there is any evidence or any sufficient evidence to support *Page 157 or warrant the findings upon which the decree is based, is in conflict with Section 1 of Article XII of the Amendment to the Constitution of Rhode Island adopted in November, 1903, which says that, "The Supreme Court shall have final revisory and appellate jurisdiction upon all questions of law and equity."
The primary error, in the majority opinion, arises, as it seems to me, from the conclusion that the question as to the sufficiency of the evidence is one of fact and not of law.
The Workmen's Compensation Act, so-called, evinces an intent on the part of the General Assembly to speed, in the Superior Court, the determination of cases of this character for the welfare of those who may be entitled to its benefits. But the act contains nothing from which it can be fairly reasoned that it was the intention of the General Assembly to further accelerate the petitioner's case by taking away from the respondent his appellate rights. Because the General Assembly has seen fit to hasten these matters in the Superior Court, we are not justified in assuming or inferring that it was also its intention to take from the respondent his rights in this court, on appeal, in the absence of any specific language signifying such intent. The provisions of law in ejectment cases require such cases to be speeded in the Superior Court without attempting in any way to interfere with or restrict proceedings in this court on appeal. I see no difference, in respect to appellate proceedings, between this case and other cases which come before us and in which we consider both the existence of evidence and its sufficiency. The word conclusive as used in the act should, in my opinion, be construed to mean that the findings of the Superior Court are final on the facts, but are not final upon the questions of law as to whether such findings are warranted by the evidence.
This is the view taken by the Massachusetts Court in the cases of Nickerson and Buckley cited, supra. They hold that the decision of the Industrial Accident Board is final upon the facts, but that the case may be reviewed in the Supreme *Page 158 Judicial Court, on appeal, for the purpose of determining, as a matter of law, whether or not there is evidence or sufficient evidence to sustain the finding, and the Cane case, supra, holds that the inference drawn by the lower court from the facts is a question of law subject to review.
The act itself — Section 7, Chapter 831 — provides that "Any person aggrieved by the final decree of the Superior Court . . . may appeal to the Supreme Court upon any question of law or equity decided adversely to the appellant by said final decree." This provision shows that it was not the intention of the General Assembly that any question of law should be concluded in the Superior Court, but that the respondent should have his right of appeal thereon, which is guaranteed to him by the constitution of the State.
It is difficult to understand upon what theory an entire lack of evidence constitutes a question of law; and the sufficiency of the evidence, or the inference to be drawn from the evidence, remain questions of fact. If we give to the word "conclusive," as employed in the statute, the meaning of absolute finality as claimed for it, closing the door upon all consideration on appeal as to the sufficiency of evidence in support of the finding, or as to the inferences to be drawn from the evidence, we furnish a way through which a great injustice may be suffered by a respondent. To say that nothing but the entire absence of evidence, in support of a finding, can be considered by this court on appeal, is equivalent to saying that any evidence, no matter how trivial or inconsequential it may be, will be sufficient to debar this court from any exercise of its revisory powers. Take for example a case in which one witness testifies in behalf of the petitioner, relative to some fact upon which a finding is subsequently based, and the record shows upon careful examination that such testimony must have been hearsay, while on the other hand, the respondent produces a number of intelligent and reliable witnesses who positively controvert the testimony of a hearsay character. Under these conditions and circumstances, an adherence to the rule under *Page 159 discussion would render this court powerless to entertain an appeal and afford relief. It does not seem to me that the General Assembly ever intended to make possible such a situation. The correctness of the views heretofore expressed can be no better illustrated perhaps than by the case at bar.
The act provides for a recovery of compensation where the employee sustains an accident arising out of and in the course of his employment. In the present case Jillson was an employee of the defendant, and prior to the day of the accident had been engaged with other workmen in cutting ice at the Stump Hill Pond. By reason of a rise in temperature it was not feasible to proceed with that work on the day of the accident. Jillson was sent to the pond to gather up the tools around the ice house on the shore of the pond and secure them until such time as they would again be needed. It was also a part of his duty to order away any person or persons who might be found fishing through the ice upon a certain prescribed area of the pond from which ice was to be harvested. It appeared from the evidence that people were permitted to fish upon certain other portions of the pond which were quite remote from the place where Jillson would be engaged in gathering up and caring for the tools. Under the act the burden was upon the plaintiff to show that the accident arose out of and in the course of her husband's employment. The drowning occurred in a portion of the pond about half a mile from the tool house where he collected and stored the tools. It is argued that he may have been traversing the pond with a view to ordering away some person or persons whom he observed fishing within the forbidden area. This is a pure conjecture and is entirely unsupported by any testimony. Not only is there nothing in the evidence tending to show the presence of any person upon the pond calling for the exercise of his authority, but there is evidence that at the time no person was fishing, or attempting to fish there, except in the distant localities where fishing was permitted. The burden of proof imposed *Page 160 upon the plaintiff by the act is not sustained, and the finding of the Superior Court, that the accident arose out of and in the course of the employment, is a mere speculation, besides being out of harmony with that portion of the testimony, affirmative in character, to the effect that there was no duty for Jillson to perform at the time and in the place where he met with his accident There is no reasonable inference that can be drawn from the testimony that the accident happened under conditions that would entitle the petitioner to compensation and any finding that Jillson's accident arose out of and in the course of his employment has no other basis than conjecture. The fact that the accident to Jillson occurred during the working hours of the day does not furnish any evidence to sustain the burden of proof, which is upon the petitioner to show that such accident arose out of and in the course of the employment. That the accident may have so occurred is not sufficient. The proof must go further and show that it did so occur. Craske v. Wigan (1909), 2 K.B. 635; Pomfret v. Lancashire c. R'y. Co., 2 K.B. (1903), 718;In re McNicol's Case, 215 Mass. 497; Reed v. Great WesternR'y., 2 B.W.C.C. 109; Cronin v. Silver, 4 B.W.C.C. 221;Charvil v. Manser, 5 B.W.C.C. 385; Lynch v. Railway Co.,133 S.W. 522. The similarity, not to say identity, of the English Statute to and with our own compensation act renders all of the English cases cited especially valuable in the consideration of these questions.
I think that this court should proceed to consider the questions (1) Is there any evidence. (2) Is there any sufficient evidence to support the findings, and that the decree of the Superior Court should be reversed on both grounds.