holding lack of notice required by what is now Iowa Code section 85.23 is an affirmative defense with the burden of proof on the employer
How later courts described this case
- holding lack of notice required by what is now Iowa Code section 85.23 is an affirmative defense with the burden of proof on the employer
Written by the judges who cited it.
The opinion
Richards, C. J.
(dissenting)
The majority opinion is bot-_ tomed on cases holding that evidence of a decedent-employee’s statements that he was injured in course of his work is incompetent in workmen’s compensation cases, under the hearsay rule. In these cases it is said that the rule is not merely technical, but is founded upon the experience, common knowledge and conduct of mankind. That same experience, common knowledge and conduct of mankind, however, is likewise the foundation for another concept, that is, the clear necessity in the interests of justice that the rule be relaxed, in at least some situations, where there is no possibility of producing evidence other than hearsay. As in this case, in the course of his work, an employee may receive an injury of such minor character that it does not arrest the attention of any other person, or it may be no other persons are present. Infection results and the employee dies therefrom. The compensation the- law provides cannot be allowed his dependents, as our cases now stand.
In some jurisdictions the workmen’s compensation statutes are held to abrogate the hearsay evidence rule. Carroll v. Knickerbocker Ice Co., 218 N. Y. 435 , 113 N. E. 507 , Ann. Cas. 1918B, 540. Our own legislature has enacted that .neither the board of arbitration nor the commissioner shall be bound by
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any common law or statutory rules of evidence. Section 1441, Code, 1935. But in the cases the majority follows, neither the concept of necessity nor the intendment of the statute seems fo have been accorded the deserved careful consideration. This was likely not appreciated at the time, at least not by the writer of this dissent. And it may well be that the necessity, in the interests of justice, for relaxing the rule in just such a case as has been depicted was foreseen and intended by the legislature. The previsioning of such possibilities would inhere in the devising of an act that would effect the fundamental purpose the legislature had in mind. That purpose was that every employee, entitled thereto, should have the benefit of a fixed compensation, in deprivation of all his previous rights and claims against the employer. This statutory abrogation of rules of evidence seemingly contemplated that, if the commissioner found believableness in hearsay testimony, he could consider it, not as a jury of laymen might do, but as would be done ‘by the skilled and experienced trier of facts the legislature intended and presumed he would be. If that be true we have held erroneously that he may not listen to, or if he listens must discard anything of truth found in, hearsay testimony. In my opinion the question deserves careful reconsideration, and because that is not found in the majority opinion I cannot agree therewith.
Oliver, J., joins in the foregoing dissent.