v. Pillsbury (1915) 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466, it was held that the failure of an experienced lineman, in working about live wires, to use rubber gloves, as the rules of the employer required, and as he had been recently directed by his foreman to do, which gloves were furnished by the employer, and were at hand, constitutes wilful misconduct justifying an annulment by the court of an award by the Industrial Commission of compensation to the lineman's dependents. Angellotti, Ch. J., dissented from the judgment annulling the award upon the ground that he did not think that the court should hold that the evidence compelled the conclusion as a matter of law that the death of the deceased was caused by his own "wilful misconduct."

But, under the provisions of the Oklahoma statute releasing the employer from liability for compensation to an injured employee "where the injury resulted directly from the wilful failure of the injured employee to use a guard or protection against accidents, furnished for his use pursuant to law 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, since the wilful failure contemplated carries with it the idea of premeditation, obstinacy, and intentional wrongdoing. WICK v. GUNN (reported therewith) ante, 107.

So, an employee cannot be said to be guilty of “wilful failure or refusal to use a safety appliance" required by statute, where, in drilling a piece of iron, he did not use the clamp provided by the employer, but did use another appliance which was used at various times by the employees, but which was not as safe as the appliance furnished by the employer, and it was not shown that the injured employee knew that the clamp was to be used to the exclusion of all other safety appliances on the form of work upon which he was engaged. Haskell & B. Car Co. v. Kay (1918) Ind. App. 119 N. E. 811. And an employee cannot be said to

Failure to use a guard will not deprive an employee of his right to compensation, where the use of the guard would not have prevented the injury; in such a case the act of the employee cannot be considered as the proximate cause of the injury.

Thus, the failure to use safety appliances, as required by the Indiana statute, will not prevent a recovery of compensation where it appears that if such devices had been used, it would not have prevented the injury. Indianapolis Light & Heat Co. v. Fitzwater (1918) - Ind. App. 121 N.

E. 126.

So, the failure to use a guard or protection to machinery, provided by the employer, is not a deliberate intention to cause an injury, within the meaning of the Kansas act, where such guards and protection were of no benefit while the machinery was being cleaned, as was the case when the employee was injured. Messick v. McEntire (1916) 97 Kan. 813, 156 Pac. 740.

VI. Effect of conduct after injury.

The phrase "serious neglect," as used in the British Columbia act, does not refer to the conduct of the workman after the injury. Powell v. Crow's Nest Pass Coal Co. (1915) B. C. —, 23 D. L. R. 57, 8 West. Week. Rep. 1086, 32 West. L. R. 218.

whose fingers had been frozen, to consult a physician immediately was held, in Rainey v. Tunnel Coal Co. (1918) 93 Conn. 90, 105 Atl. 333, not to amount to "wilful and serious misconduct" which would justify a denial of any compensation.

And the refusal of an injured employee, a foreigner, unable to speak or understand the English language, and suffering great pain, to submit to a serious operation until fifteen or sixteen hours after it was first found necessary, does not amount to the intentional and wilful misconduct which will deprive him of a right to compensation. Jendrus v. Detroit Steel Products Co. (1913) 178 Mich. 265, L.R.A. 1916A, 381, 144 N. W. 563, Ann. Cas. 1915D, 476, 4 N. C. C. A. 864.

So, wilful and intentional misconduct cannot be imputed as a matter of law to an employee who was injured while in the course of his employment, and who subsequently died after suffering an attack of delirium tremens, merely because the deceased, when asked by the physician attending him after the accident whether he was an "alcoholic," replied that he was not, on the theory that, had he answered truthfully that he was, the treatment would have been different and the attack of delirium tremens might have been averted, where his foreman testified that, although he was a drinking man, he had never seen him in a state when he thought he had been drinking while on duty, and that his drinking did not interfere with his work, and that during the sixteen years he had known him, he had not known him as a drinking man. Ramlow v. Moon Lake Ice Co. (1916) 192 Mich. 505, L.R.A.1916F, 955, 158 N. W. 1027.

And an employee cannot be denied compensation because of wilful and serious misconduct in failing to follow the advice of a physician in coming to have a wound dressed, where he testified positively that the physician told him not to come again, as it was all right, and he was a foreigner, not understanding English very well, and being able to speak English but brokenly, although the physician testified that he directed him to come for

Oniji v. Studefurther treatments. baker Corp. (1917) 196 Mich. 397, 163 N. W. 23.

VII. Examples of conduct not amounting to serious and wilful misconduct. In a large number of cases the employee has been held not to be guilty of serious and wilful misconduct so as to deprive him of the right to compensation, although it might be said that his conduct was negligent. As these cases are based upon various states of fact, it is impossible to arrange them in any logical manner.

The attempt of an employee who was an experienced automobile driver, to operate a car with which he was not familiar, does not amount to serious and wilful misconduct. Maryland Casualty Co. v. Industrial Acci. Commission (1918) Cal. App. -,

178 Pac. 542.

A miner is not guilty of wilful misconduct in resting in the shade of an ore bin on a very hot day, while he is going from one shaft to another, at the direction of the foreman. Brooklyn Min. Co. v. Industrial Acci. Commission (1916) 172 Cal. 774, 159 Pac. 162.

A workman employed as a motor van driver, who, in order to perform the operation of changing gears easily and noiselessly, took out some bottom boards of the van, and because of that was injured when a part of his rug fell through the gap left by the removal of the boards and dragged him down, with the result that his leg was broken when coming against the shaft, is not guilty of serious and wilful misconduct in removing such boards. Partridge v. Whiteley (1915) 8 B. W. C. C. (Eng.) 53.

It cannot be said as a matter of law that a night watchman was guilty of serious and wilful misconduct in defending himself from an attack by men who he thought were desperate criminals, but who were in fact deputy sheriffs, by one of whom he was shot. Harbroe's Case (1916) 223 Mass. 139, L.R.A.1916D, 933, 111 N. E. 709.

In passing between standing cars after being notified that they were about to be moved, although a highly imprudent act, is not properly to be

characterized as "wilful misconduct." BALTIMORE CAR FOUNDRY Co. v. RUZICKA (reported herewith) ante, 113.

An employee is not negligent as a matter of law in going onto a wet and slippery walk to clear the débris from the rack protecting the flume leading water from the dam to the mill in which he is employed, where the work was necessary and all fair-minded men would not agree that the risk of injury was so apparent that the ordinary man would not have encountered it. Boody v. K. & C. Mfg. Co. (1914) 77 N. H. 208, L.R.A.1916A, 10, 90 Atl. 859, Ann. Cas. 1914D, 1280, 5 N. C. C. A. 840.

Where an employee adopts the customary way of operating a machine, he cannot be held guilty of contributory negligence as a matter of law, which defense was left open to the employer under the Wisconsin Act of 1911. Besnys v. Herman Zohrlaut Leather Co. (1914) 157 Wis. 203, 147 N. W. 37, 5 N. C. C. A. 282.

The act of a carpenter, in attempting to descend from the roof of a building on which he is working by means of a loose rope, one end of which is held in the hands of a fellow workman, instead of using a ladder provided for such purposes, is not intentional and wilful misconduct. Clem v. Chalmers Motor Co. (1914) 178 Mich. 340, L.R.A.1916A, 352, 144 N. W. 848, 4 N. C. C. A. 876.

A delivery boy riding a bicycle, who caught on the rear end of a motor truck while on his way to his work after delivering a parcel, was not guilty of intentional and wilful misconduct within the meaning of the Michigan act. Beaudry v. Watkins (1916) 191 Mich. 445, L.R.A.1916F, 576, 158 N. W. 16.

An officer of a vessel is not guilty of wilful misconduct as a matter of law because he, after being ordered by his superior to seek a lifeboat when the vessel was about to strike a rock, got into the boat, but afterwards went back to the vessel, and was unable to get back to the lifeboat because it had, in the meantime, cut loose from the vessel. North Pacific S. S. Co. v. In

dustrial Acci. Commission (1917) 174 Cal. 500, 163 Pac. 910.

So, a school-teacher who attempts to move a heavy desk and is injured will not be held guilty of wilful misconduct because she either overestimates her own strength or underestimates the weight of the desk which she attempts to move. Elk Grove Union High School Dist. v. Industrial Acci. Commission (1917) 34 Cal. App. 589, 168 Pac. 392, 15 N. C. C. A. 148.

In Merlino v. Connecticut Quarries Co. (1918) 93 Conn. 57, 104 Atl. 396, it was held that a workman was not guilty of serious and wilful misconduct in failing to seek shelter when warned by a whistle that a blast was about to explode. The court said that although this might be a negligent omission on the part of the workman, it could not be said to be serious and wilful misconduct, so as to constitute a defense to proceedings for compensation.

VIII. Special statutory provisions.

a. In general.

In the statutes of a few jurisdictions there are provisions which differ somewhat from the provisions relative to wilful and serious misconduct found in the majority of the statutes.

Under the New Jersey Act of 1911, there is no exemption because of wilful negligence on the part of the workman; the employer is exempted from liability for compensation only when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of the injury. Taylor v. Seabrook (1915) 87 N. J. L. 407, 94 Atl. 399, 11 N. C. C. A. 710; West Jersey Trust Co. v. Philadelphia & R. R. Co. (1915) 88 N. J. L. 102, 95 Atl. 753, reversed in (1917) 90 N. J. L. 730, 101 Atl. 1055, because injury was received in course of interstate commerce.

The Kansas statute does not make the employee's negligence, although gross, a bar to his right to recover compensation; nothing save his deliberate intention to cause the injury can deprive him of his statutory right. Messick v. McEntire (1916) 97 Kan. 813, 156 Pac. 740 (employee was neg

ligent in position which he took while attempting to clean machinery). Under the Quebec act, the compensation recoverable by an injured employee is reducible to the extent that the injuries were caused by the fault of the workman. Croteau v. Victoriaville Furniture Co. (1911) Rap. Jud. Quebec 40 S. C. 44.

b. Where injury results in death or in serious and permanent disablement.

It is to be noticed that under the English Act of 1906, serious and wilful misconduct is not a bar to compensation, where the injury results in death, or in serious and permanent disablement.

Serious and wilful misconduct is not material where the workman has been seriously and permanently disabled. Jackson v. Denton Colliery Co. [1914] W. C. & Ins. Rep. (Eng.) 91, 110 L. T. N. S. 559, 7 B. W. C. C. 92.

Although a collier, in going into a dangerous working, in disobedience to the colliery special rules, and against the warnings of a fireman or overlooker, was guilty of "serious and wilful" misconduct, yet if he did so in an honest attempt to further that which he was instructed to effect, his dependents may secure compensation for his death, which resulted from such act. Harding v. Brynddu Colliery Co. [1911] 2 K. B. (Eng.) 747, 80 L. J. K. B. N. S. 1052, 105 L. T. N. S. 55, 27 Times L. R. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269.

What constitutes serious and permanent disablement under this provision has been passed upon in a few

cases.

The loss of the top joint of the middle finger of the right hand of a machinist may be found to be serious and permanent disablement within the meaning of § 1 (2), (3) of the act. Brewer v. Smith (1913) 6 B. W. C. C. (Eng.) 651.

A workman who has lost two fingers of his right hand is seriously and permanently disabled, and is entitled to compensation notwithstanding the injury was occasioned by his "serious and wilful" misconduct. Hopwood v.

Olive (1910) 102 L. T. N. S. (Eng.) 790, 3 B. W. C. C. 357.

"I think that the 'serious and wilful misconduct' section of the act-§ 1, subsec. (2) (c)-really throws great light on the present case. It is not every misconduct that prevents a workman from recovering compensation. It must be proved that the misconduct was 'serious and wilful;' and although the present case does not come under that provision, because for some reason the section does not apply to a case where the accident results in death, still the principle that it is not every misconduct which disentitles a workman to the benefit of the act must apply in this case as in every other." Cozens-Hardy, M. R., in Robertson v. Allan Bros. & Co. (1908) 1 B. W. C. C. (Eng.) 172.

Although serious and wilful misconduct is immaterial in case of a fatal accident, or in case of serious and permanent disablement, yet no compensation can be awarded even in such cases, if the accident did not arise out of the employment. Leggett v. Gibbons [1916] W. C. & Ins. Rep. (Eng.) 154, 85 L. J. K. B. N. S. 980, 114 L. T. N. S. 830, 9 B. W. C. C. 354.

So, in Weighill v. South Hetton Coal Co. [1911] 2 K. B. (Eng.) 757, in discussing the effect of the provision of the Act of 1906, which provides that serious and wilful misconduct is not a bar to compensation where the injury results in "death or serious and permanent disablement," CozensHardy, M. R., said: "Serious and wilful misconduct within the sphere of the employment does not prevent the workman's dependents from claiming compensation; serious and wilful misconduct outside the sphere of his employment is entirely different. Serious and wilful misconduct outside the sphere of his employment does not bring within the sphere of the employment that which, but for the serious and wilful misconduct, would be outside of it."

IX. Immateriality of conduct where injury does not arise out of the employment.

Any question of "serious and wilful misconduct" on the part of the em

ployee ceases to be of importance when it is apparent that the accident did not arise out of and in the course of his employment, since the statute provides for compensation only in cases where the injury does so arise out of and in the course of the employment. Piske v. Brooklyn Cooperage Co. (1918) 143 La. 455, 78 So. 734; Bischoff v. American Car & Foundry Co. (1916) 190 Mich. 229, 157 N. W. 34; Leggett v. Gibbons [1916] W. C. & Ins. Rep. (Eng.) 154, 85 L. J. K. B. N. S. 980, 114 L. T. N. S. 830, 9 B. W. C. C. 354; Weighill v. South Hetton Coal Co. [1911] 2 K. B. (Eng.) 757; Lowe v. Pearson [1899] 1 Q. B. (Eng.) 261, 68 L. J. Q. B. N. S. 122, 47 Week. Rep. 193, 79 L. T. N. S. 654, 15 Times L. R. 124.

So, if the workman brings himself within the act by showing that the accident arose out of and in the course of his employment, his case can only be met by the employer by showing that the injury to the workman is attributable to his serious and wilful misconduct. McNicholas v. Dawson [1899] 1 Q. B. (Eng.) 773, 68 L. J. Q. B. N. S. 470, 80 L. T. N. S. 317, 47 Week. Rep. 500, 15 Times L. R. 242, per Collins, L. J.; 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, per Lord Loreburn, L. C.

No attempt has been made to include cases in which the misconduct of the employee might be considered as "serious and wilful," but in which the decision actually rests upon the fact that the accident did not arise out of the employment.

X. Conduct must be proximate cause of the injury.

In order that an employer may be free from liability for compensation because of conduct on the part of the employee, it must appear that such conduct was the exclusive cause of the accident. The employee's conduct is immaterial if it was merely incidental to his injury, and was not the cause thereof.

Thus, in order that a breach of a statutory rule as to mines shall

amount to "serious and wilful miscon! duct," it must be shown to have been the cause of the accident. Allan v. Glenborg Union Fire Clay Co. [190607] S. C. (Scot.) 967; Praties v. Broxburn Oil Co. [1906-07] S. C. (Scot.) 581.

So, an employee cannot be held guilty of wilful misconduct in failing to wear glasses at his work in handling a dangerous caustic, as he had been instructed to do by his employer, where, under the peculiar circumstances of the case, it appeared that even if he had been wearing the glasses, the accident would have occurred, since the failure to wear the glasses cannot be said to have been the proximate cause of the injury. Great Western Electro-Chemical Co. v. Industrial Acci. Commission (1917) 35 Cal. App. 450, 170 Pac. 165.

And at the death of a miner, killed while riding on top of a loaded hutch in the mine, in breach of one of the rules in force in the mine, by the fall of a stone from the roof of the tunnel in which the hutch was running, is not "attributable" to his serious and wilful misconduct. Glasgow Coal Co. v. Sneddon (1905) 7 Sc. Sess. Cas. 5th series, 485. Lord M'Laren observed: "What is included under the word 'attributable'? I think that under that word there must be some causal relation between the misconduct of a workman and the injury which he suffers. . . It is enough that it is a material cause that in some way contributes to the unfortunate result. Therefore I think that the question to be considered under the word 'attributable' is very much the same as we have to consider in cases at common law where there is fault on the part of the employer or his servant, and the meaning is that the injury was either caused solely by the workman's own fault, or was contributed to materially by his act or fault."

The making of a false representation by a minor that he is of full age, in order to secure employment, is not "serious and wilful misconduct, or serious neglect," where it appeared that the accident is not solely attributable to the misrepresentation. Darnley v.