I think this case should not be disposed of by deciding that all evidence held to be objectionable as hearsay in the courts of this state is without probative force. Our law of evidence is largely a product of the jury system. The purpose of its exclusionary rules is to keep from the jury not only all that is irrelevant, but also much that although relevant is remote, or collateral, or non-probative, and, therefore, tends to mislead or confuse. I assume that the industrial commission, although not "bound by common law or statutory rules of evidence" (W.C.L. § 68), must, in exercising its functions, for the sake of system and simplicity, apply certain principles of the law of evidence based on experience as well as authority, the chief being that witnesses should, as far as practicable, testify from their own knowledge of relevant facts, orally, publicly, under oath or affirmation and subject to the test of cross-examination. Yet we cannot overlook the obvious fact that "the changing experience of mankind" may dictate that these fundamental principles be modified and liberalized in their application, when the hearing is before tribunals which adjudicate both on law and fact, and not before a jury summoned temporarily from the vicinage and untrained in the discriminating art of deciding causes on evidence. The ascertainment of truth rather than the integrity of the rules being the foremost consideration, *Page 448 we find that when the jury is absent the rules are less strictly enforced, it being assumed that the court will not be easily confused or misled by that which is irrelevant and inconclusive.
Hearsay is said by the old writers to be "of no value in a court of justice" (Bull. N.P. 294), and "no evidence" (Gilbert on Evidence [2d ed.], 152), yet the rule against hearsay, even at common law, is subject to many exceptions, and is not inelastic either in statement or application. Thayer in his luminous and philosophic "Preliminary Treatise on Evidence at the Common Law" (pp. 522, 523) suggests that "a true analysis would probably restate the law so as to make what we call the rule the exception, and make our main rule this, namely, that whatsoever is relevant is admissible. * * * No doubt, in point of reason, hearsay statements often derive much credit from the circumstances under which they are made, say for example, from the fact of being made under oath, or under impressive conditions as being against interest, or made under strong inducements to say the contrary, or as part of a series of statements or a class of them which are usually careful and accurate, and the like; credit amply enough in point of reason to entitle them to be received in evidence, when once the absence of the perceiving witness is accounted for; and it would in reason have been quite possible to shape our law in the form that hearsay was admissible as secondary evidence, whenever the circumstances of the case were alone enough to entitle it to credit, irrespective of any credit reposed in the speaker."
The rule and its exceptions are not always and everywhere the same. The decisions are not in harmony. What is admissible in one jurisdiction is sometimes excluded in another. In the same jurisdiction the exception as first formulated is sometimes limited or extended by later cases. In Insurance Co. v.Mosley (8 Wall. 397) the question was whether the assured died from the *Page 449 effects of an accidental fall down stairs in the night or from natural causes. Assured had left his bed between 12 and 1 o'clock at night and it was held that his declarations to his wife when he came back that he had fallen down the back stairs and hurt himself badly were competent and sufficient proof of the fall because they were made so soon thereafter as to be in the nature of res gestæ — declarations contemporaneous with the main fact and part thereof. The evidence was, none the less, the narrativeby a person since deceased of a past, although a recent event. This court in Waldele v. N.Y.C. H.R.R.R. Co. (95 N.Y. 274,278), therefore, very properly characterized the Mosley case as "an extreme case," and in Greener v. General Electric Co. (209 N.Y. 135, 138) said "the distinction to be made (in such cases) is in the character of the declaration; whether it is so spontaneous, or natural, an utterance as to exclude the idea of fabrication; or whether it be in the nature of a narrative of what had occurred." The force of this rule lies somewhat in the application of it. (People v. Del Vermo, 192 N.Y. 470, 483, and cases cited.) Can we say that evidence which the Supreme Court of the United States held competent and sufficient, i.e., the declarations of a deceased person made soon after the alleged accidental injury and under circumstances entitling them to credit is not competent and sufficient proof before the industrial commission under the rule of section 68 of the Workmen's Compensation Law which says that the commission shall not be bound by common-law rules of evidence? May not the commission, under this statute, adopt the rule of the Supreme Court of the United States and in its discretion give it an extremely liberal application and reject the stricter rule laid down by this court without being open to the charge of making an award on no evidence whatever? Could not "the substantial rights of the parties" be thereby ascertained? If it may go so far, we need only hold that where the common-law rule against hearsay is *Page 450 not uniformly stated or applied, the commission may base an award upon evidence received under the exceptions to the rule most favorable to the claimant, without being bound by the decisions of this court thereon. I think that the evidence of Carroll's declarations to his wife when he came home from work and to the physician called to treat him might, without too violent a wrench to our established ideas, be held competent under the exception to the rule against hearsay applied to the Mosley case. In any event as pointed out by my brother SEABURY in his opinion the evidence was legal and admissible. If it had any probative force, its weight was for the commission as triers of fact and their decision thereon was final. (Workmen's Compensation Law, §20.) I think that we cannot say as matter of law that it had no probative force under section 68 of the act, but I do not thereby conclude that all hearsay has probative force or that awards in contested cases may be allowed or disallowed on rumor or report to which the circumstances give no weight. It is not to be anticipated that the commission will become confused, waste time, lose sight of the main issue and base awards or refuse them on haphazard hearsay, as our convention is that a jury might if it were permitted to hear everything relevant.
I vote for affirmance.
HISCOCK, COLLIN and HOGAN, JJ., concur with CUDDEBACK, J., and WILLARD BARTLETT, Ch. J., concurs in result in memorandum; SEABURY and POUND, JJ., read dissenting opinions, each of whom concurs in the opinion of the other.
Order reversed, etc. *Page 451