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ed the southerly boundary of said San | viewed, it involves injuries to real property, Joaquin county, the flood waters reaching and must be tried in the county in which the said point from streams other than the subject of the action, or some part thereof, Kings river have already passed down said is situated. Code Civ. Proc. § 392; People San Joaquin river, and the water plane of v. Selby Smelting & Lead Co., 163 Cal. 84, said San Joaquin river at said point has in- 124 Pac. 692, 1135, Ann. Cas. 1913E, 1267. rariably fallen so far below high-water mark | Where the erection of a dam in one county at said point that the flood waters from said which when complete would cause damage Kings river, diverted as set forth in said to real property in another county, because complaint, have never raised the water plane of the diversion of waters, the action should of the said San Joaquin river to the high- be tried in the latter county (Drinkhouse v. water mark of said river at said point”; Spring Valley Waterworks, 80 Cal. 309, 22 that all the said obstructions are situated in Pac. 252; Last Chance Water Ditch Co. v. Kings county. Affiant appends to his affi. Emigrant Ditch Co., 129 Cal. 277, 61 Pac. davit an excerpt from a report made by the 960); and the rule applies to threatened inengineer of the reclamation board concern- juries. It was held, in City of Marysville ing the unusually high flood of 1914, which, v. North Bloomfield Gravel M. Co., 66 Cal. it is contended, corroborates affiant's state 343, 5 Pac, 507, that actions to enjoin hyment as to the San Joaquin river clearing draulic mining in this state could be mainitself before the flood waters of the Kingstained in any county along the river carryriver reach the southern boundary of San ing the mines' tailings, where the damage acJoaquin county.

crued. The question is discussed in Las 1. Teilman deposed that he is familiar | Animas, etc., Land Co. v. Fatjo, 9 Cal. App. with said obstructions, and that they are sit- 318, 99 Pac. 393, and the cases cited. uated in Kings county near the southerly

The purport of Mr. Nares' affidavit is that boundary of Fresno county; "that the wa- past observation has shown that the flood ters of the Kings river, which flow north and crest on Kings river has not reached the empty into the San Joaquin river flow in San Joaquin river when the flood crest was patural channels, known as Fish slough, on the latter river. Whether the alleged sometimes called Fresno slough; that said dams, channels, and obstructions erected by natural channels flow in a general westerly defendants, to turn the flood waters into the and northwesterly direction in said Fresno San Joaquin river will have the effect alcounty, and empty into said San Joaquin leged in the complaint is one of the vital is. river in said county; that such water of the sues in the case, and neither Mr. Nares nor Kings river as is diverted, if any, by the Mr. Teilman deposed to that question. Neidams, obstructions, embankments, excava- ther of these affiants showed that there was tions, and channels described in the com- any injury to real property in Fresno counplaint on file herein passes immediately into

ty. Mr. Teilman's statement was that the Fresno county and into the slough above de waters that are caused to flow north “and scribed, and that if any damage is caused empty into San Joaquin river" flow through by the flood waters of Kings river passing Fish or Fresno slough, and that if any daminto said slough, it is caused solely and only age is caused by the water “passing into to real property situated in the said coun- said slough,” it is caused solely and only to ty of Fresno."

real property in Fresno county. Mr. Teilman [1-3] While the gravamen of the action is silent as to the effect of the water after may be for the abatement of the obstruc- it has passed through Fresno slough into the tions referred to in the complaint, the aver- San Joaquin river. ments therein are comprehensive enough to

Appellants claim that: involve the question of plaintiffs' right to

“There is no allegation in the complaint as to an injunction to prevent the threatened in the location of any particular lands which might jury, and the prayer of the complaint seeks be injured because of the increased flow of wainjunctive relief as well as the abatement of ter in the San Joaquin river caused by such dithe alleged nuisance. The court said, in Peo- version. Although the action was brought in the

county of San Joaquin, the complaint is silent ple v. Selby Smelting & Lead Co., 163 Cal.

as to whether or not any of the lands affected $4, 90, 124 Pac. 692, 695 (Ann, Cas. 1913E, or to be affected by such diversion are situated 1267):

in San Joaquin county." “While it is undoubtedly true that, strictly

It is urged also that there is nothing in considered, the words 'abate' and enjoin' have the complaint to show that there is at the technically different meanings (Ruff v. Phillips, 50 Ga. 133) in California, the rule is well es present time, by reason of the maintenance tablished that in proper cases injunctive relief, of said obstruction, any present interference which accomplishes the purposes of abatement with the rights or enjoyment of property without its harsh features, is permissible.”

situated in San Joaquin county. We do not think the merits of the action “Within reasonable limits,” there is no “quescan be tried on affidavits. For the purposes tion, says Mr. Wood, “but that the Legislature of the motion defendants concede “that the has the power to declare certain uses of properallegations of the complaint are true.”

ty a nuisance and such use thereupon becomes

a nuisance per se.” 2 Wood on Nuisance, & However, in whatever aspect the action be 1 763.

The Legislature has, within its undoubt-| are threatened with further injury, we think ed power, declared the acts complained of the motion was rightly denied. If, however, to be a public nuisance, and such acts con- the complaint, or the affidavits, show injury stitute a nuisance per se. Nuisances per se also in Fresno county the trial may be had in are so regarded because no proof is requir- either county where injury has resulted or ed, beyond the actual fact of their existence, will result. “Where the real property is sitto establish the nuisance. No ill effects need uated partly in one county and partly in anbe proved. 2 Wood on Nuisance, $ 569. And other, the plaintiff may select either of the all parties to a nuisance per se, he who cre counties, and the county so selected is the ates it and he who maintains it, are respon proper county for the trial of such action.” sible for its effect, without limitations of Code Civ. Proc., sec. 392. condition or time. Thornton V. Dow, 60 The order is affirmed. Wash. 622, 111 Pac. 899, 903, 32 L. R. A. (N. S.) 968.

We concur: BURNETT, J.; HART, J. Equity will interfere by injunction to prevent threatened injury, where acts which

(32 Cal. App. 771) create a public nuisance are about to be

DIESTELHORST V. INDUSTRIAL ACCIcommitted, causing also an inevitable pri

DENT COMMISSION OF CALIvate and special injury to the complainant

FORNIA et al. (Civ. 1604.) (Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423); and the rule applies equally District Court of Appeal, Third District, Cal

ifornia. Feb. 10, 1917.) where the threatened injury is to the public and the people are the complainants.

1. MASTER AND SERVANT 380_WORKMEN'S

COMPENSATION ACT—"SERIOUS AND WILL[4] We do not think it was necessary to

FUL MISCONDUCT. allege that some specific subdivision or tract “Serious and willful" misconduct means the of land situated in San Joaquin county was same as willful misconduct, since any willful injured, nor that the alleged injury was im- misconduct that leads to death or great bodily

injury must necessarily be serious. mediately present, for relief will be award-2. MASTER AND SERVANT 380-WORKMEN'S ed when the danger is apparent or the mis COMPENSATION ACT-RIGHT TO COMPENSAchief already done.

TION—“WILLFUL MISCONDUCT"-MINOR EV. We think the averments of the complaint

PLOYÉS.

Where a minor employed about machinery are sufficient to warrant the inference that had been instructed not to oil it while in motion, the “low-lying lands” referred to as situated but thoughtlessly, after the power had been shut along the shores of the San Joaquin river off and while the machine was moving of its own

momentum, oiled it, and was injured, he was throughout its length' where it passes through not chargeable with "willful misconduct." the counties mentioned, including San Joa (Ed. Note.-For other definitions, see Words quin county, are directly threatened with the and Phrases, First and Second Series, Willful injury complained of, and that these lands

Misconduct.] are within the jurisdiction of the board of 3. MASTER AND SERVANT Om 405(1)

WORK

MEN'S COMPENSATION ACT-RIGHT TO Conreclamation, and are made the subject of

PENSATION - WILLFUL MISCONDUCT_MINOB its care and protection. The scheme of EMPLOYÉS. reclamation contemplated by the act is of Evidence held to show that minor's disobestate-wide concern as well as of great im-dience to order was thoughtless, and not the re

sult of willful misconduct. portance to the territory immediately interested. The effect of the dams, channels,

Proceedings by Bert Bollinger, employé, and other means of diversion of the water of for compensation, opposed by William DiesKings river is distinctly pointed out, and it telhorst, employer. On application by the is shown that such diversion will raise the employer for writ of review for annulment water plane of the San Joaquin river

of the award by the Industrial Accident Comthroughout its course in the San Joaquin mission and others. Writ discharged, and Valley; that from 25,000 to 30,000 cubic award affirmed. second feet of water will be added to the Dean & Carter, of Redding, and Thos. B. channel of the San Joaquin river, raising its Dozier and Eric G. Scudder, both of San water surface from 8 to 15 feet in eleva- Fran::isco, for petitioner. Christopher M. tion; that said obstructions have impaired, Bradley, of San Francisco, for respondents. and will continue to impair and destroy, a great portion of the reclamation works along BURNETT, J. Petitioner seeks the annulsaid river and have made, and will continuement of an award made by said Commission to make, it more difficult and expensive to to said applicant for an injury received by reclaim portions of land along said river as the latter while employed by the petitioner in the complaint fully described.

to act as a general helper around a gold dredg. [5] Inasmuch as the affidavits submitted er. It is claimed that the accident was due with the motion fail to show injury to any to the "willful misconduct of said Bert Boliands in Fresno county, and inasmuch as we linger, and therefore the Commission was think it fairly appears that lands situated in without jurisdiction to make the award." It San Joaquin county have been injured and is admitted that if no other rational conclu

den For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sion as to the attributable cause of the acci- , applicant herein). He was employed in a dent can be drawn from the evidence, then, rolling mill, and was allowed certain interin the exercise of its statutory authority, the vals for resting. During such an interval the court should vacate and annul said award. deceased and some other boys of about the It is, however, the claim of respondents that same age, who were also employed in the mill, there is sufficient justification for the finding started to play on some wagons on an inclinthat the injury was not due to the willfuled track. One of the wagons started down misconduct of the applicant, and that the the incline, and the deceased, in an attempt Commission therefore cannot be properly to stop it, was thrown beneath the wheels chargeable with an adjudication in excess of and met his death. The boys, including the its legal authority.

deceased, had been instructed not to play Indeed, the attack and the defense relate. about the wagons. Lord Trayner, in his denot only to the evidence, but to the sufficiency cision, said: of the finding itself to support the conclusion “The defenders had given this boy and others of the Commission. It is the contention of like him positive instructions that they were

not to go across the line of rails or near the petitioner that the facts found are compatible

wagons. They had been repeatedly warned only with the position that the applicant was against doing so for fear of accident, and they guilty of willful misconduct, and that peti knew that in doing so they were doing wrong.

I cannot figure anything more serious or willful tioner is therefore not liable under the Work

than positive and intentional disobedience to a men's Compensation Act.

strict and positive order. That is the character We are asked to set aside the award by of the case, and I must hold accordingly." reason of the following finding:

The other is Fanny Callahan v. Maxwell, 2 “That previous to said injury said employé Sc. Sess. Cas. (5th' Series) 420. Therein had been instructed by his employer on two oc- Fanny Callahan, a young girl, was employed casions not to oil the said machinery while the same was in motion, and had been warned of the

on a steam thresher to unbind and hand danger of so doing; that at the time of the in- sheaves to the millman which he put through jury the motive power of the machinery had an opening into the mill. She had been inbeen shut off, and after so shutting off the power, the machinery continues to move for 15 min

structed to remain at her place, and had been utes by its own momentum, and while well know- / warned of the danger of moving about. The ing the said instructions and the danger of their millman had occasion to go beneath the violation, but for the purpose of saving the time

thresher to remove an obstruction, whereupnecessary to wait for the machinery to stop, said employé, without waiting until the machin

on Fanny attempted to step across the openery had stopped, thoughtlessly and without ating for the purpose of speaking to another the time being mindful of said instructions, at- | girl on the other side of the opening. In tempted to oil the same, and in so doing, sustained the injury as above set forth; that by reason

crossing the opening, her foot slipped and was of the extreme youth of said employé and his caught by the revolving drum, and her right consequent lack of mature judgment and dis leg was taken off below the knee. One ques. cretion, and for the further reason that the said act of the employé was with the sole motive and

tion presented to the appellate court was for the sole purpose of saving time, and to that whether her conduct in leaving her place and extent in the interest of the employer, the act of attempting to step across the opening in the the employé in violating his instructions as

machine amounted to serious and willful misa foresaid was negligent, but was not an act of willful misconduct, and the said injury was not conduct on her part in the sense of the Workcaused by the willful misconduct of the em- men's Compensation Act. It was held that ployé."

she was so chargeable, it being stated in the It is the contention of petitioner that a vio- opinion: lation of such reasonable directions consti | “I do not think that there can be a more distutes in itself willful misconduct, and that it tinct case of willful misconduct than one in is not condoned or mitigated by the excuse or

which a person is injured in consequence of

having disobeyed a specific order, such as that apology contained in said finding. He given here, and which was given in order to claims:

insure her safety.” "That the cases from all jurisdictions uniform- Many cases, also, from other British jurisly hold that the breach of an express rule or dictions are cited, of which we may refer to order, particularly if made expressly for the safety of an employé, constitutes serious or will

Best v. London & Southwestern Railroad ful misconduct within the meaning of Work Company (1907), A. C. 209, 8 Ann. Cas. 1, men's Compensation Acts."

which went to the House of Lords. In that He cites a large number of cases, beginning case, an engine driver, because his train was with Scotland. Of these, it is asserted that late, left the foot plate of his engine while in two are practically on all fours with the case motion and mounted the coal on the tender, at bar. Both involved minors, and the in- in violation of a rule of the company that juries were occasioned by disobedience of "enginemen and firemen must not leave the . rules. The first is Powell v. Lanarkshire foot plate of their engine while the latter is Steel Co., Ltd., 6 Sc, Sess. Cas. (5th Series) in motion." He was killed by being struck 1039 (1904). Therein the father of Patrick by a bridge. It was claimed at the trial of Joseph Powell, a minor, claimed compensa- the claim for compensation that the driver's tion for the death of said minor under the object was to try and find better coal in orCompensation Act of 1897. At the time of his der to make up the lost time. In the deci. death he was 15 years of age (the same as sion, the Lord Chancellor (Loreburn) said:

"This unfortunate man broke this rule, which | by the Supreme Court by reason of the willcertainly is a very serious rule. There was evi- ful misconduct of deceased, Mayfield, who dence that he knew of its existence, and that he had been employed as a lineman by said knowingly and willfully acted in defiance of it. It was a rule to save life and to prevent danger, company. The company had issued orders both to the public and to the servants of the that employés should not work on poles carcompany."

rying live wires without using rubber gloves In the same decision Lord Atkinson said: provided by the company. It was not shown “I do not attempt to define what 'willful mis, that Mayfield did not know or understand conduct is, nor to express any opinion which I might be unable to retract on further consider this rule. On the day of the accident, Mayation, but it would appear to me, I confess, that field ascended a pole to cut a wire without if a man breaks a rule, knowing at the time taking his gloves, and he received a shock that he is breaking it, and is not compelled to which caused his death. In discussing the break it by some superior power which he cannot resist, he is guilty of a willful breach of it." meaning of the term "willful misconduct"

Coming nearer home, it is the opinion of the Supreme Court declared: petitioner that we have in this state two de- who violates a reasonable rule made for his own

"But it cannot be doubted that a workman cisions that virtually govern this, that is, protection from serious bodily injury or death Pacific Coast Casualty Co. v. Pillsbury et al., is guilty of misconduct, and that where the 162 Pac. 1040, and Great Western Power workman deliberately violates the rule, with Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35. knowledge of its existence and of the dangers ac

companying its violation, he is guilty of willful In the first of these, an errand boy in the misconduct.” employ of a millinery company in San Fran.

It was held that the evidence showed a cisco had been expressly warned not to ride deliberate violation of the rule, and hence in or attempt to operate the freight elevators the annulment. in the building occupied by his employer.

It must be conceded that petitioner makes Notices to the same effect were also conspicu

a strong and persuasive argument, buttressously posted near the entrances of the ed as it is by an imposing array of authorfreight elevators. Said errand boy, upon re

ities. On the other hand, the contention turning from an errand, attempted to ascend of respondents is entitled to serious considby way of one of the freight elevators to the eration. It is claimed that the defense of floor where his employer had his place of willful misconduct is an affirmative defense business, and, in so doing, to operate the in the nature of a penal provision forfeiting elevator himself. The boy was killed, and compensation for willful wrongdoing, that compensation was sought for his death. The the burden of proof is upon the employer to Industrial Accident Commission made find-establish this defense, and that it was not ings "that the deceased and other employés established in the present case by reason of of the defendant frequently operated said the failure of the employer to prove the necFifth street elevator by themselves without

essary element of willfulness. In amplifyreproof or discipline by said defendant," ing their position, respondents indulge in an and “that the signs placed by the owners of interesting historical review of the common said building upon the doors of the elevators law and of the statutes culminating in the were habitually disregarded without protest," workmen's compensation acts as they relate and furthermore, “that the protection of its to the redress for injuries afforded to the employés from serious bodily injury or death employé. The dissimilarity between the comin connection with the operation of such ele- mon-law remedy and that under the modern vators was not made plain to them nor to legislation is pointed out, and it is declared Cassell [the deceased) in a manner suited to that under the system of work men's compenthe intelligence of a person of his age,” and sation acts now adopted in California and in therefore compensation was allowed. It was approximately 35 states of the Union, the decided by the District Court of Appeal for industry is made to carry the cost of injuthe First District that there was no evidence ries sustained by its employés in the course to support these findings, and the award was of its operation, without regard to the fault accordingly annulled. In denying the peti- of either the employer or employé. Or, as tion for rehearing the court said:

stated by the Supreme Court of Montana in “We are of the opinion that the undisputed Lewis & Clark County v. Industrial Acc. evidence in the case showed that the deceased Board of Montana, 52 Mont. 6, 155 Pac. 268, had been expressly warned not to ride in, or attempt to operate, the freight elevators in the L. R. A. 1916D, 628: building in which he met his death, under pen “Liability and compensation statutes cannot be alty of discharge, and that notices were posted grouped together, since they are the antipodes at, or near, the entrance of such elevators of of labor legislation, having their foundation in similar import, and that the disregard of such essentially different social and economic ideas; warning by the employé must, in the absence the liability statutes being intended to limit the of evidence mitigating such disobedience, be held defenses of the master, and the compensation to constitute such willful misconduct as would statutes to provide compensation for the workprevent a recovery before the Commission, man regardless of negligence of master, fellow where, as in the instant case, there is no evi- servant, or himself.” dence tending to show that the disregard of its warnings, orders, and notices was condoned

Attention is then called to a peculiar provi. by the employer."

sion of the California act and of some of the In the Great Western Power Case, supra, other states, penalizing, so it is claimed, the the award by the Commission was annulled employer or employé, as the case may be,

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for wanton and intentionally evil conduct, | work at the noon hour, and get the court as provided in section 12b and section 12a said: (3) of our statute (Stats. 1913, p. 283), and it "The fact that the injury was occasioned by is claimed that this provision as to the em

the employé's disobedience to an order is not

decisive against him. To have that effect, the ployé was not intended as a substitute for disobedience must have been willful, or, as was contributory negligence, and it should not said by Lord Loreburn, in Johnson v. Marshall be so construed, but should be regarded in Sons & Co., Ltd. (1906), A. C. 409, 411, 'delibthe spirit of section 21 of article 20 of the crate, not merely a thoughtless act on the spur

of the moment.' Constitution, authorizing the Legislature by

It is asserted that the same rule is recappropriate enactment to "create and enforce a liability on the part of all employers tation hereinbefore made from 170 Cal. 180,

ognized by our Supreme Court in the quoto compensate their employés for any inju- 149 Pac. 35, where willful misconduct is dery (sustained] by the said employés irrespective of the fault of either party.” scribed as the deliberate violation of a reaTo give effect to this provision and the ob- sonable rule made for the workman's benefit, rious purpose of the said Compensation Act, of the dangers accompanying its violation.

where he has knowledge of its existence and it is claimed that the misconduct which

As to the two cases from this state cited would defeat the right of the employé to compensation must be more than even gross

by petitioner, respondents find substantial contributory negligence, in fact, must be the disparity with this. It is pointed out that in violation of reasonable rules or the doing the Pacific Coast Casualty Company Case of an extremely hazardous act which, under the young employé was killed in the accithe common law, would amount to a breach dent, and it was impossible to discover his of the duty owed to the employer, and, in exact mental state in violating the rule, that addition, must be accompanied by a will- is, whether it was willful disobedience or the fulness of intent or wrong motive amounting result of an inadvertence, and in the absence to a mens rea. It is insisted that this is de- of testimony on that point, the court natumanded by the language and spirit of the drew the inference that it was deliberate and

rally, from the bare fact of disobedience, Compensation Act, and is supported by the willful. This, probably, was what the court decisions of this state and of other jurisdiç-had in mind in its opinion denying the petitions. Among the decisions cited from foreign ju- "absence of mitigating circumstances.” Here

tion for rehearing when it referred to the risdictions is Jensen v. Bowen Bros. & Co., in there is express testimony, negativing the Ct. of Abr. of New Zealand, Canterbury Ind. Dist. (1909), vol. 8, Decisions under the Work- drawn from the bare fact of disobedience.

willfulness which overcomes any inference men's Compensation for Accident Act, 49,

In the Mayfield Case, supra, 170 Cal, 180, 30, wherein it is said:

"The question of serious and willful miscon- 149 Pac. 35, there was not only an absence of duct is one of fact to be determined on the cir- testimony tending affirmatively to establish cumstances of each case. In dealing with the inadvertence, but there was, in addition, tesviolation by a worker of a rule in force in the within a few hours before his death, of the question the court is not bound to treat every timony that the deceased had been warned, factory or works as amounting necessarily to serious and willful misconduct. Whether it is danger of not wearing gloves, which was sufso or not depends on the nature of the rule and ficient to establish willfulness. Mayfield the circumstances in which the violation has tak- was, moreover, a man of mature years. en place."

As to the cases from foreign jurisdictions · The Supreme Court of Massachusetts, incited by petitioner no specific attention is the Matter of Nickerson, 218 Mass. 158, 105 paid to them by respondents. However, the N. E. 604, Ann. Cas. 1916A, 790, declared most important ones appear for the first time that "serious and willful misconduct,” for in the reply brief of petitioner, it being statthe consequences of which the employé is ed therein that: not entitled to compensation, under the Work

“Since receiving respondents' reply brief we men's Compensation Act of that state, “means have been to some trouble to look up the cases more than even gross negligence, and re- under workmen's compensation acts interpreting sembles closely the wanton or reckless mis- that most of said cases originated in the courts

or defining 'willful misconduct,' and have found conduct which renders one liable to a tres- of Great Britain." passer or to a bare licensee," and it was

It would have been more satisfactory if held that:

"Where an employé, engaged in cleaning and petitioner had taken the trouble to do that painting, began work around a moving shaft before filing his opening brief. We cannot shortly before noon, although he had been or

undertake to examine these cases in detail. dered to do that work during the noon hour, Most of them, we may say, involved adults while the machinery was stopped, his disobe- and accidents under circumstances leading dience was a thoughtless act on the spur of the moment, rather than deliberate disobedience, necessarily to the conclusion that there was and does not deprive his dependent of compensa- willful violation of reasonable rules for the tion under (said) act."

safety of the workmen. In that case, it seems that the deceased, [1] Again, while some of the cases called less than half an hour before he was killed, for a consideration of "serious and willful was told by the superintendent to do the misconduct," it is apparent that the word

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