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Workmen's compensation

169 Pac. 1087.)

wilful failure to use guards.

1. Under that part of § 1, art. 2, chap. 246, Sess. Laws 1915, relieving the employer from liability for compensation to an injured workman "where the injury results directly from the wilful failure of the injured employee to use a guard or protection against accident furnished for his use pursuant to any statute, or by order of the state labor commissioner," the mere voluntary and intentional failure of a workman to use such safety appliance does not necessarily render the omission wilful. The wilful failure contemplated carries with it the idea of premeditation, obstinacy, and intentional wrongdoing.

[See note on this question beginning on page 116.]

Statute construction compensation.

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2. The Workmen's Compensation Act of this state must be construed as a whole, and all presumptions indulged will be in favor of those for whose protection the statutory compensation was fixed, and who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded.

Workmen's compensation-defeating claim.

3. In order to defeat an award for injuries under the Workmen's Compensation Act, the case must come clearly within the statutory exceptions barring the award. The burden of proof is upon the employer to establish facts constituting a bar to compensation.

-determination of fact.

4. Wilful failure of workmen to use guards or safety appliances provided in pursuance of law, or by order of the state labor commissioner, is a question to be determined by the Industrial Commission from the facts in each particular case, and if there is any evidence reasonably tending to support a

Headnotes 1-5 by STEWART, C.

finding of such board that the failure to use such guards or appliances was not wilful, the action of the board will not be disturbed.

Master and servant pliances - duty.

safety ap

5. It is the duty of employers to provide proper guards and safety appliances for machinery used by workmen, and to install proper guards and appliances ordered by the state labor commissioner.

[See 18 R. C. L. 590, 591.] Workmen's compensation - duty of employee to use safety appliances.

6. The failure of an employee to use a safety appliance not in accordance with any statute or order of the state labor commissioner cannot be regarded as wilful, within the meaning of a Workmen's Compensation Act relieving the employer from liability for compensation for an injury resulting directly from the "wilful failure" of the injured employee to use a guard or protection against accident furnished for his use, pursuant to any statute or by order of the state labor commissioner.

PETITION for a writ to review a decision of the Industrial Commission awarding compensation to claimant for injuries sustained by him while in the employ of petitioner. Denied.

The facts are stated in the Commissioner's opinion. "Mr. H. A. King for petitioner.

Messrs. S. P. Freeling, Attorney General, and R. E. Wood, Assistant Attorney General, for respondents:

Petitioner failed in the performance of his duties, by not compelling claimant to use the guard at all times.

Pinsdorf v. E. L. Kellogg & Co. 108 App. Div. 209, 95 N. Y. Supp. 617; Arms v. Ayer, 192 Ill. 601, 58 L.R.A. 277, 85 Am. St. Rep. 357, 61 N. E. 851. Stewart, C., filed the following opinion:

The respondent, S. J. Wick, and the insurance carrier, the Fidelity & Deposit Insurance Company of Maryland, seek review of a decision of the State Industrial Commission, awarding compensation to claimant Charles D. Gunn, for injuries sustained during the course of his employment by the respondent; it being urged that the award should not have, been made because the facts show that claimant failed to

use a safety appliance provided, which would have prevented the injury.

The statutes and the rules of this court make the decisions of the State

Industrial Commission on questions of fact final. The amount of the award in the instant case is not in controversy, and we are called upon only to say, as a matter of law, whether or not, under the facts, any compensation should have been awarded. This duty involves a construction of that part of § 1, art. 2, of the Workmen's Compensation Act, which bars an award "where the injury results directly from the wilful failure of the injured employee to use a guard or protection against accident furnished for his use pursuant to any statute or by order of the state labor commissioner." [Sess. Laws 1915, chap. 246.] Section 3746, Rev. Laws 1910, provides that, in a factory or an institution where machinery is used, "all machines shall be provided with loose pulleys and all vats, pans,

planers, cogs, gearing, belting, shafting, set screws and machinery of every description shall be properly guarded." (The italics are ours.) Counsel indulge in extended discussion as to whether the machinery was properly guarded. In our opinion, the absence in this case, if such existed, of a proper guard, or of such guard as was authorized by the state labor commissioner, is only material: First, in so far as the same may affect the question of wilful failure of the claimant to use the guard provided; and, second, in so far as the claimant may be held to be relieved from using an improper or unauthorized guard.

The word "wilful" was used with evident purpose on the part of the lawmakers; hence a proper construction and definition of such word as applied to the legislation involved is imperative. We are not without numerous definitions of the word by both lexicographers and jurists. The same are apparently in slight conflict, but are nevertheless susceptible of being harmonized. In the progress of language and the development of ideas, it has become a rule not only of legal, but of grammatical, construction, that a great number of words have varying significance, more or less related, but often far removed from the original etymological meaning, according to the several connections in which a particular word may be used.

It is the contention of the petitioners that the word "wilful" pertains only to an act of the will, and is synonymous with voluntary or intentional. It is sometimes so defined. "Wilful," as used in criminal matters, often refers merely to a voluntary act. However, this rule is not absolute. For an act to be culpable, it must be willing, but not necessarily wilful. The word "wilful" signifies full of will, fixed, determined, stubborn; and by constant

(Okla., 169 Pac. 1087.)

use in certain connections it now
generally signifies stubbornness in
wrongdoing, or reckless disregard of
consequences. It will be found that,
where the courts have held the word
to be equivalent to "voluntary" or
"intentional," such construction was
adopted where the word was used in
connection with acts criminal per se,
and that even in criminal cases,
where the acts forbidden by statute
are not wrong in themselves, it is
held that "wilful" has a deeper sig-
nificance than merely voluntary or
intentional. It is held in Catlett v.
Young, 143 Ill. 74, 32 N. E. 447, that
the phrase, “wilful violation of law,"
means a violation thereof, knowing-
ly and deliberately committed. The
same is held in United States v. Ed-
wards (C. C.) 43 Fed. 67; Horton v.
Equitable Life Assur. Soc. 35 Misc.
495, 71 N. Y. Supp. 1060; Wales v.
Miner, 89 Ind. 118, 127. And it is
held that the word "wilfully" means
not merely voluntarily, but with a
bad purpose. 8 Words & Phrases,
7469; Potter v. United States, 155
U. S. 438, 39 L. ed. 214, 15 Sup. Ct.
Rep. 144; Com. v. Kneeland, 20
Pick. 206; Williams v. People, 26
Colo. 272, 57 Pac. 701; Spur v. Unit-
ed States, 174 U. S. 728, 43 L. ed.
1150, 19 Sup. Ct. Rep. 815; Hately v.
State, 118 Ga. 79, 44 S. E. 852;
North Carolina v. Vanderford (C.
C.) 35 Fed. 282, 287; Chicago, St.
L. & P. R. Co. v. Nash, 1 Ind. App.
298, 300, 27 N. E. 564.

In State v. Alcorn, 78 Tex. 387, 14
S. W. 663, and 8 Words & Phrases,
7469, it is said: "Bad motive is
necessary
.. to make an act
wilful, and that the fact that the
act or omission was done in obed-
ience to the will . . is not
enough."

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occasioned by the wilful act of the owner of the stock or his agent, the court, in Stewart v. Burlington & M. River R. Co. 32 Iowa, 561, says: "A wilful act is an obstinate, stubborn, perverse act; and an act done wilfully is one done stubbornly, by design, and with set purpose.'

It is held in Meyer v. Standard Teleph. Co. - Iowa, -, 92 N. W. 720, that a wilful act is the wanton doing of the same without reasonable excuse. Under a statute fixing liability upon a railroad company for damages to stock running at large, in the absence of a fence constructed by the railway company, unless the injury complained of was

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Webster defines "wilful" as "obstinate; perverse; inflexible; stubborn; refractory.

We next consider the construction of the word in its particular application to Workmen's Compensation Laws. Such legislation is new in this state; in fact, new to our entire country. It began in Germany, and, under some changes, found its way to England, later reaching the United States, existing at present, in some form or other, in thirty-two states. In Adams v. Iten Biscuit Co. Okla., 162 Pac. 938, this court upholds the constitutionality of the Workmen's Compensation Act of this state. Mr. Justice Hardy, in delivering the opinion, after an able and exhaustive review of the history and objects of kindred legislation, says: "Instead of the losses being borne as heretofore, in a great majority of cases, by the injured employee or his dependent ones, it was the belief that such losses should be borne by the industries causing them, or, more accurately speaking, by the consumers of the products of such industries, and that thereby wasteful and unnecessary litigation, with all of its resultant evils, could be eliminated."

It was the intention of this act to make the business bear the burden of incidental and accidental injuries without regard to the question of negligence, either on the part of the employer or the employee. In the long run the public, and not the persons immediately involved, except to the extent that they are members of society at large, pay the bills. The instant case presents to this court for the first time any question growing out of the operation of the law. An examination of the legislation of Germany, England, and the various American states discloses no

other statute identical with ours as to defenses to claims arising under the law. Most of the statutes, however, provide that "wilful misconduct," without specifying the particular acts resulting in the injury, is a bar to an award. Our statute specifically names the wilful acts that bar compensation. The law in England has received judicial construction to a greater extent than elsewhere. In Tennent v. Broxburn Oil Co. [1907] S. C. 581, it is said: "The word 'wilful' as applied to the conduct of the injured person signifies moral blame, and if there is no moral blame, the case would not come within the scope of the statutory exception."

In Johnson v. Marshall Sons & Co. [1906] A. C. 409, 75 L. J. K. B. N. S. 868, 5 Ann. Cas. 630, Lord Loreburn speaking for the court says: "It was 'wilful' in the sense that the man presumably entered of his own accord, but the word 'wilful,' I think, imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment."

In George v. Glasgow Coal Co. [1909] A. C. 123, it is held that the question of serious and wilful misconduct on the part of the claimant is a question of fact to be determined by the tribunal trying the cause, the court using the following language: "It is not the province of a court to lay down that the breach of a rule is prima facie evidence of serious and wilful misconduct. That is a question purely of fact, to be determined by the arbitrator as such. The arbitrator must decide for himself, and ought not to be fettered by artificial presumptions of fact prescribed by a court of law."

In Johnson v. Marshall Sons & Co. supra, it is said in the syllabus: "The mere breach of a rule or order from which no serious consequences could reasonably have been anticipated is not such 'serious and wilful misconduct' under the Workmen's Compensation Act 1897 as disentitles to compensation for death or injury occasioned thereby.

The onus of proving such misconduct lies upon the person asserting it."

In George v. Glasgow Coal Co. supra, it is said: When an act is momentary and inadvertent, not deliberate, it cannot be said to be wilful; wilfulness must be wilfulness in wrongdoing, knowing the quality of the act.

The statute in Wisconsin makes any "wilful misconduct" a bar to the compensation, and in construing such provision the court in Nekooska-Edwards Paper Co. v. Industrial Commission, 154 Wis. 105, L.R.A.1916A, 348, 141 N. W. 1013, Ann. Cas. 1915B, 995, says: "A finding by the Commission under the Workmen's Compensation Act that, although an injury to an employee was due to his intoxication, it was not caused by his wilful misconduct so as to relieve the employer from liability under the statute, cannot be disturbed by the court where it has no authority to review the evidence."

In Gignac v. Studebaker Corp. 186 Mich. 574, 152 N. W. 1037, it is said in the syllabus: "Where a railroad employee was injured while climbing over the bumpers of a freight train to which a live engine was attached, without stopping to see where the trainmen were and without knowing whether the train was about to move, he was not, as a matter of law, guilty of such intentional and wilful misconduct as would defeat recovery under the Workmen's Compensation Act."

It is held by the supreme court of Massachusetts in Nickerson's Case, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645: "Serious and wilful misconduct,' for the consequences of which the employee is not entitled to compensation under Workmen's Compensation Act (Stat. 1911, chap. 751) p. 2, § 2, means more than even gross negligence, and resembles closely the wanton or reckless misconduct which renders one liable to a trespasser or to a bare licensee."

The court in the Nickerson Case

(Okla., 169 Pac. 1087.)

further says: "A finding by the industrial accident board, in accordance with the report of the arbitration committee, that the employee was not guilty of serious and wilful misconduct, is conclusive on appeal, unless shown to be unwarranted by the evidence."

Workmen's compensationdetermination of fact.

Now, applying the law to the facts in this case, the duty rests upon us to determine whether or not the uncontroverted facts are such that all reasonable persons must conclude that the failure of the claimant was "wilful" in the sense that the word is used in the statute under consideration. The wilfulness of the claimant was a question of fact determined by the Industrial Commission, and, if there is evidence to support the finding, we are powerless to interfere. We cannot substitute our findings for those of the Commission. The material evidence before us shows that at the time of the accident the claimant was operating a machine, being a combination edger and planer; that he was experienced and used to such work; that he had been working for the respondent for only a few days, but had, prior to his employment by the respondent, operated such a machine without a safety guard; that such use was not unusual; that the machine in question had an out-ofdate guard, not automatic, which, when claimant began to work, was hanging by the machine and out of place; that the safety appliance as approved by the labor commissioner was automatic, easier to handle, and much safer than the one provided by the respondent; that the respondent was aware of such improved automatic safety appliance, but testifies that he merely used the one that came with the machine. It is admitted by the respondent in his testimony that, had the automatic guard been provided, the accident would not have happened. There is also evidence to show that, if the guard furnished had been put in place and properly used by the

claimant, the injury might have been averted. The evidence shows that on Wednesday, the next day after the claimant began work, the respondent said to the claimant, "Charley, use your guard whenever possible to use it," and that the respondent showed the claimant how to adjust the guard in order to make it work more easily; that at the time of the injury the claimant was making a door out of flooring lumber; that after making the door he desired to cut the tongue off one piece of the flooring, and, in order to save time for his employer and inconvenience to himself, he ran this piece of lumber through the machine without attaching or using the guard; that, on account of the character of the guard and its not being in place, it would have required extra time to have used the same; that to do such work without a guard was not unusual and not necessarily dangerous, and that the time required to do the work without adjusting the guard was but momentary. It does not appear that the claimant had any thought of violating the law or of other wrongdoing, but used the machine in the manner to which he had been accustomed at other places where he had worked, and, in so acting carelessly, received an injury resulting in the loss of two phalanges of the index finger; that no rules were posted and no notice published showing the requirement of the law as to the use of machinery; that the guard recommended by the labor commissioner was simple and inexpensive; that the one provided was complex, unhandy, and required considerable time to adjust and use. The state labor commissioner as well as the claimant and respondent were witnesses in the hearing before the Industrial Commission, and there was no substantial conflict in their testimony.

The facts and circumstances in evidence raised a question of fact which was decided adversely to the respondent. Reasonable men might have reached a different conclusion than that reached by the Industrial

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