I concur in the opinion except as to the rescript. The opinion very completely demonstrates that the commissioner could not have legally reached any conclusion upon the finding thus corrected other than that the injury did not arise out of the employment. The record indicates that the plaintiff's case was fully and carefully presented by competent counsel, and that there is no other material evidence which is available to him. He had the great advantage of having the sympathy and testimonial aid of his employers. The case was one where employee and employer united in the effort to render the insurer liable to the employee. The claims of the plaintiff have been very completely, strongly, and sympathetically presented in the finding. When the finding has been corrected, in accordance with the evidence, as the opinion has done, a judgment adverse to the defendant-insurer could not be fairly rendered.
To return the case to the commissioner for a new trial, having pointed out to the claimant the essential weakness in the testimony of himself and his witnesses, will, I fear, stimulate the imagination and recollection of the claimant or his witnesses to supply the missing links in their evidence and in consequence the truth will suffer. Under these circumstances, I do not think the ends of justice will be served by according the plaintiff further opportunity to present his case, already once fully presented. Its facts do not bring it within the liberal rule we adopted in Cormican v.McMahon, 102 Conn. 234, 238, 128 A. 709.
In this opinion BANKS, J., concurred. *Page 649