Commission, but it cannot be maintained that other reasonable.men would not have concurred in the finding made. We de not determine whether or not the claimant's failure was wilful. We hold, however, that the mere intentional and voluntary failure on the part of a -wilful failure -defeating claim. excep workman to use a to use guards. proper safety appliance does not necessarily make the act wilful as contemplated by the exception under consideration. The wilfulness contemplated amounts to more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing. The burden is upon the employer to show that the failure of the claimant comes within the tion defined by statute. Workmen of the class enumerated, by the terms of the act, cannot maintain an action at law for damages arising in the course of their employment which was formerly possible. The compensation fixed, while meant to be more certain and speedy, is not commensurate in amount with the injury sustained. As rather in the nature of a quid pro quo for being deprived of the right of action formerly afforded, partial compensation for injuries received in the course of employment is allowed, notwithstanding contributory negligence of the workman and lack of negligence on the part of the employer. The act 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. Statuteconstructionworkmen's compensation. Contributory negligence and wilful failure to use a safety appliance must not be confused. The mere voluntary failure to use the same would constitute contributory negligence, and to hold that such failure in itself barred re lief would, in effect, preserve a defense abrogated by the act. This case presents another question. The Industrial Commission found that the guard furnished by the respondent did not comply with the statute requiring that "machinery of every description shall be properly guarded," nor with proper orders of the state Master and duty. labor commissioner. servant-safety There being evi- appliancesdence to support such finding, we are concluded as to the same. It would logically follow that the claimant, being charged only with the duty of using guards provided in pursuance of law or by order of the labor commissioner, cannot in this case be charged with compensationfailure to use the duty of guard furnished; use safety there being evidence to show that the same was neither a proper guard nor one provided pursuant to order of the labor commissioner. Workmen's employee to appliances. The petition filed by respondent in this court must be denied, and the award upheld; and it is so ordered. It is further ordered that the State Industrial Commission proceed at once to enforce its judgment and order allowing the award to the claimant. Per Curiam: NOTE. The subject of wilful and serious misconduct of an employee as a bar to compensation is treated in a note to BALTIMORE CAR & FOUNDRY Co. v. RUZICKA, post, 116. The reported case (WICK V. GUNN, ante, 107) is in line with the great weight of authority in holding that something more than mere negligence is necessary to constitute the statutory "wilfulness" which deprives the employee of his right to compensation. The act of the employee must show, as the court suggests, premeditation and intentional wrongdoing. (132 Md. 491, 104 Atl. 167.) BALTIMORE CAR FOUNDRY COMPANY, Appt., V. SOPHIA RUZICKA. Maryland Court of Appeals - April 3, 1918. (132 Md. 491, 104 Atl. 167.) Workmen's compensation ing cars. 1. Passing between standing cars after being notified that they were about to be moved is not within a provision of the Workmen's Compensation Act denying recovery for injury due to wilful misconduct. [See note on this question beginning on page 116.] -injury arising out of employment. 2. Failure of an employee to use the walk provided for exit when leaving the premises at the close of the day's work does not prevent an injury received on the way out from being one arising out of and in the course of the employment. APPEAL by the employer from a judgment of the Circuit Court for Anne Arundel County, affirming an order of the State Industrial Accident Commission, awarding compensation to claimant in a proceeding under the Workmen's Compensation Act to recover compensation for the death of her husband. Affirmed. The facts are stated in the opinion Mr. Edward Duffy for appellant. Messrs. Edward J. Colgan, Jr., and Frank J. Pintner for appellee. Urner, J., delivered the opinion of the court: Upon this appeal from a judgment of the circuit court for Anne Arundel county, affirming an order of the State Industrial Accident Commission, the main question to be decided is whether the death of Frank J. Ruzicka, to whose widow an award was made by the Commission under the Workmen's Compensation Law (Code Pub. Civ. Laws, vol. 3, art. 101, as amended by Laws 1916, chap. 597, § 1), was the result of his "wilful misconduct" within the meaning of that statute, which, by its forty-sixth section, provides that "no employee or dependent of any employee shall be entitled to receive any compensation or benefits under this act, on account of any injury to or death of an employee caused by self-inflicted injury, the wilful misconduct, or where the injury or death resulted solely from 4 A.L.R.-8. of the court. the intoxication of the injured employee." Ruzicka was crushed and killed while attempting to pass between two cars on a track in the car erecting shop of the Baltimore Car Foundry Company, in which he was employed as a maker of decks or platforms for the cars there in course of construction. The accident occurred in the evening as the day's work was closing and Ruzicka was starting to leave the shop on his way to his home. The cars between which he tried to pass were two of a number of finished cars, standing at intervals on the track, and ready to be coupled together and drawn out of the shop by an engine which had been brought to the end of the building for that purpose. A trainman had passed along the track, notifying all the workmen that the cars were about to be coupled and moved. At a distance of about 80 feet from the place where Ruzicka had been working there was a board walk over the track referred to, and others paral lel with it, which was intended for the use of the workmen in crossing the tracks in going to and from their work. There does not appear to have been any enforced rule, requiring the employees to use the board walk alone in passing from one side of the building to the other, and they could, if they chose, in going home, cross the tracks at other points. When the trainman who gave warning as to the coupling and removal of the cars passed Ruzicka's place of work, the latter was in the act of putting on his coat. It was about five minutes later that the engine, on signal from the trainman, began the movement by which the cars were coupled. An employee who saw the accident testified that he told Ruzicka, as he was about to go between the cars, that he ought not to do so, because they were ready to be moved, but Ruzicka said: "That is all right, I will go through before they start." If he had passed on promptly, he would have crossed in safety, as the cars were not moved during the next five minutes, but as he reached the track he was engaged in conversation by another workman for about the period just mentioned, and then, as he was pasing between the couplers, which were 3 or 4 feet apart, the movement of the cars was begun, and he was crushed to death. It is, of course, perfectly clear that the fatal accident we have described was the result of Ruzicka's own negligence. But we agree with the court below and the State Industrial Accident Commission in the opinion that the highly imprudent act which caused the unfortunate man's death is not properly to be characterized as wilful misconduct. It lacked the eleWorkmen's com- ment of intentional ful misconduct impropriety which standing cars. those words imply. It was a thoughtless and heedless act, but not a wilful breach of a positive rule of conduct or duty. pensation-wil passing between In Bradbury's Workmen's Com pensation Law, 3d ed. p. 531, where numerous decisions on the subject are collected and discussed, it is said: "No general rule of law can be established defining accurately what constitutes wilful misconduct. The question is one of fact, and must be determined by the facts presented in each particular case. The conduct must be wilful, which means that it must be intentional; that is, deliberate, with an exercise of the will, as opposed to accident, negligence, inadvertence, and thoughtless acts on the spur of the moment, or an error of judgment." On the appeal to the House of Lords in Johnson v. Marshall, Sons & Co. [1906] A. C. 409, 75 L. J. K. B. N. S. 868, 22 Times L. R. 565, 8 W. C. C. 10, 94 L. T. N. S. 828, 5 Ann. Cas. 630, Lord Chancellor Loreburn, in defining "serious and wilful misconduct," as used in the British Workmen's Compensation Act, said that the word "wilful" imports that "the misconduct was deliberate, not merely a thoughtless act on the spur of the moment." In discussing a provision in the California Workmen's Compensation Act (Stat. 1913, p. 279), similar to the one with which we are here concerned, the supreme court of that state said: "Wilful misconduct involves something more than negligence, and it does not even include every violation of a rule." United States Fidelity & G. Co. v. Industrial Acci. Commission, 174 Cal. 616, 163 Pac. 1013. The contention in that case, which the court overruled, was that the injured employees, who were suffocated in a wine vat, were guilty of wilful misconduct in entering the vat without previously testing it for noxious fumes according to the customary method of observing that precaution. It was held in Gignac v. Studebaker Corp. 186 Mich. 574, 152 N. W. 1037, that a checker of automobile shipments whose foot was crushed between the bumpers of freight cars over which he was climbing, without knowing whether the train was about to move, was (132 Md. 491, 104 Atl. 167.) not, as a matter of law, guilty of such "intentional and wilful misconduct" as would defeat recovery under the Michigan Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10). In Nickerson's Case, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645, it was decided that the act of a painter in working near machinery while it was in motion, contrary to an order that the painting be done during the noon hour, when the machinery was stopped, should not be regarded as "serious and wilful misconduct," within the provisions of the Massachusetts Workmen's Compensation Act (Stat. 1911, chap. 751, amended by Stat. 1912, chap. 571); the court observing that wilful misconduct "is a very different thing from negligence, or even from gross negligence," and "the fact that the injury was occasioned by the employee's disobedience to an order is not decisive against him. To have that effect, the disobedience must have been wilful." Other illustrative cases on this subject are cited in an elaborate annotation on Workmen's Compensation Laws in L.R.A.1916A, 75, 243. In the present case it is evident that the death of Ruzicka was due to his erroneous assumption that there was sufficient time for him to pass between the cars before they were moved. There was in fact ample time for that purpose when he started to cross, but when, after his progress had been interrupted by the conversation in which he became engaged with another workman, he resumed his forward movement, he apparently failed to realize how long he had been delayed. This was a very serious lapse of memory and judgment. It led him into an imminent peril which he could readily have avoided by ordinary attention. But in thus neglecting to have proper regard to his safety he was not, in our opinion, guilty of wilful misconduct within the purview of the Workmen's Compensation Law, which, except in cases of injury produced by such misconduct, or self-inflicted, or due to intoxication, provides compensation for the disability or death of employees resulting from accidental personal injury arising out of and in the course of the employment, "without regard to fault as a cause of such injury." It was argued that Ruzicka's death did not arise out of and in the course of his employment, since he was killed while leaving the car shop by a route other than the board walk which led to the place of exit. As we have already stated, the workmen were not required to use the board walk, but they could pass elsewhere over the tracks, in going to and from their working places, and we think that the accident, which resulted in Ruzicka's death, and which occurred while he was on the employer's premises, and immediately at the close of the day's labor, should be re- -injury arising garded as arising out of employout of and in the course of the employment. conclusion is fully in accord with the general trend of the many decisions upon questions of this nature which are cited in the annotation heretofore referred to in L.R.A.1916A, 40, 232. ment. This The specific exceptions in the record were taken to the refusal of the lower court to rule that the death of the plaintiff's husband was caused by his wilful misconduct, and to reverse the decision of the State Industrial Accident Commission, which overruled that defense and awarded compensation to the widow on the statutory basis. In our judgment the rulings excepted to were correct. Judgment affirmed, with costs. ANNOTATION. Serious and wilful misconduct of employee as bar to compensation. I. Introduction; definitions, 116. III. Violation of orders and rules, 118. V. Failure to use safety devices, 121. 1. Introduction; definitions. The English Workmen's Compensation Act provides that if the injury is attributable to the "serious and wilful misconduct" of the workman, any claim for compensation for that injury on behalf of the workman or his dependents shall be disallowed. Provisions of similar import are found in practically all the compensation statutes passed by the different states in the United States. The "serious and wiful misconduct" of an employee which deprives him of any right to compensation is something more than mere negligence. Great Western Power Co. v. Pillsbury (1915) 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466; United States Fidelity & G. Co. v. Industrial Acci. Commission (1917) 174 Cal. 616, 163 Pac. 1013; Maryland Casualty Co. v. Industrial Acci. Commission (1918) Cal. App. 178 Pac. 542; BALTIMORE CAR FOUNDRY Co. v. RUZICKA (reported herewith) ante, 113; Archibald v. Workmen's Compensation Comr. (Archibald v. Ott) (1916) 77 W. Va. 448, L.R.A.1916D, 1013, 87 S. E. 791. The phrase imports deliberateness, and not mere thoughtlessness or lack of judgment. Johnson v. Marshall, Sons & Co. [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 Times L. R. 565, 8 W. C. C. 10, 5 Ann. Cas. 630; Wallace v. Glenboig Fire Clay Co. [1907] S. C. (Scot.) 967, as cited in 2 Mew's, Eng. Case Law Dig. Supp. (1898-1907) 1547. It means more, even, than gross neg VIII. Special statutory provisions: b. Where injury results in death IX. Immateriality of conduct where injury does not arise out of the employment, 125. X. Conduct must be proximate cause of the injury, 126. XI. Pleading, 127. XII. Burden of proof, 127. ligence. North Pacific S. S. Co. v. In- "Serious and wilful misconduct" is a very different thing from negligence, or even from gross negligence; it resembles closely the wanton or reckless misconduct which will render one liable to a trespasser or a bare licensee. Burns's Case (1914) 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787, 5 N. C. C. A. 635; Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, 5 N. C. C. A. 645. An employee engaged in checking automobiles as they were placed on a car, who was injured while attempting to cross through a standing train without stopping to see where the trainmen were, and without knowing but what they were signaling the train to back up or go ahead, is not, as a matter of law, guilty of intentional and wilful misconduct within the meaning of the Michigan act. Gignac v. Studebaker Corp. (Mich.) supra. The court said: "While it is quite clear that the claimant's injury was brought about by his own gross negligence, we are of opinion that it cannot be said, as a matter of law, that he was guilty of such intentional and wilful misconduct as would defeat his recovery." And see BALTIMORE CAR FOUNDRY Co. v. RUZICKA (reported herewith) ante, 113. Serious and wilful misconduct in |