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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. variably 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 Kings tained in any county along the river carryriver reach the southern boundary of Saning the mines' tailings, where the damage ac Joaquin county. crued. The question is discussed in Las

I. 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 natural 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 isriver 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 is silent as to the effect of the water after it has passed through Fresno slough into the San Joaquin river.

[1-3] While the gravamen of the action may be for the abatement of the obstructions referred to in the complaint, the averments therein are comprehensive enough to involve the question of plaintiffs' right to an injunction to prevent the threatened in jury, and the prayer of the complaint seeks injunctive relief as well as the abatement of the alleged nuisance. The court said, in People v. Selby Smelting & Lead Co., 163 Cal. 84, 90, 124 Pac. 692, 695 [Ann. Cas. 1913E, 1267]:

"While it is undoubtedly true that, strictly considered, the words 'abate' and 'enjoin' have technically different meanings (Ruff v. Phillips, 50 Ga. 133) in California, the rule is well established that in proper cases injunctive relief, which accomplishes the purposes of abatement without its harsh features, is permissible."

We do not think the merits of the action can be tried on affidavits. For the purposes of the motion defendants concede "that the allegations of the complaint are true." However, in whatever aspect the action be

Appellants claim that:

"There is no allegation in the complaint as to the location of any particular lands which might be injured because of the increased flow of water in the San Joaquin river caused by such diversion. Although the action was brought in the county of San Joaquin, the complaint is silent as to whether or not any of the lands affected or to be affected by such diversion are situated in San Joaquin county."

It is urged also that there is nothing in the complaint to show that there is at the present time, by reason of the maintenance of said obstruction, any present interference with the rights or enjoyment of property situated in San Joaquin county.

"Within reasonable limits," there is no question, says Mr. Wood, "but that the Legislature has the power to declare certain uses of property a nuisance and such use thereupon becomes a nuisance per se.' 2 Wood on Nuisance, 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 Wash. 622, 111 Pac. 899, 903, 32 L. R. A. (N. S.) 968.

The order is affirmed.

We concur: BURNETT, J.; HART, J.

(32 Cal. App. 771) DIESTELHORST v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA et al. (Civ. 1604.)

Equity will interfere by injunction to prevent threatened injury, where acts which create a public nuisance are about to be committed, causing also an inevitable private and special injury to the complainant (Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423); and the rule applies equally (District Court of Appeal, Third District, Cal

where the threatened injury is to the public and the people are the complainants.

[4] We do not think it was necessary to allege that some specific subdivision or tract of land situated in San Joaquin county was injured, nor that the alleged injury was immediately present, for relief will be awarded when the danger is apparent or the mischief already done.

ifornia. Feb. 10, 1917.)

1. MASTER AND SERVANT 380-WORKMEN'S COMPENSATION ACT-SERIOUS AND WILLFUL MISCONDUCT."

"Serious and willful" misconduct means the same as willful misconduct, since any willful misconduct that leads to death or great bodily injury must necessarily be serious. 2. Master and SERVANT 380-WORKMEN'S COMPENSATION ACT-RIGHT TO COMPENSATION "WILLFUL MISCONDUCT"-MINOR EMPLOYÉS.

Where a minor employed about machinery had been instructed not to oil it while in motion, but thoughtlessly, after the power had been shut off and while the machine was moving of its own momentum, oiled it, and was injured, he was not chargeable with "willful misconduct."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Willful Misconduct.]

3. MASTER AND SERVANT 405(1) — WORK-
MEN'S COMPENSATION ACT-RIGHT TO COM-
PENSATION - WILLFUL MISCONDUCT-MINOR
EMPLOYÉS.

Evidence held to show that minor's disobesult of willful misconduct.

We think the averments of the complaint are sufficient to warrant the inference that the "low-lying lands" referred to as situated along the shores of the San Joaquin river throughout its length where it passes through the counties mentioned, including San Joaquin county, are directly threatened with the injury complained of, and that these lands are within the jurisdiction of the board of reclamation, and are made the subject of its care and protection. The scheme of reclamation contemplated by the act is of state-wide concern as well as of great im-dience to order was thoughtless, and not the reportance to the territory immediately interested. The effect of the dams, channels, and other means of diversion of the water of Kings river is distinctly pointed out, and it is shown that such diversion will raise the water plane of the San Joaquin river throughout its course in the San Joaquin Valley; that from 25,000 to 30,000 cubic second feet of water will be added to the channel of the San Joaquin river, raising its water surface from 8 to 15 feet in elevation; that said obstructions have impaired, and will continue to impair and destroy, a great portion of the reclamation works along said river and have made, and will continue to make, it more difficult and expensive to reclaim portions of land along said river as in the complaint fully described.

[5] Inasmuch as the affidavits submitted with the motion fail to show injury to any iands in Fresno county, and inasmuch as we think it fairly appears that lands situated in San Joaquin county have been injured and

Proceedings by Bert Bollinger, employé, for compensation, opposed by William Diestelhorst, employer. On application by the employer for writ of review for annulment of the award by the Industrial Accident Commission and others. Writ discharged, and award affirmed.

Dean & Carter, of Redding, and Thos. B. Dozier and Eric G. Scudder, both of San Francisco, for petitioner. Christopher M. Bradley, of San Francisco, for respondents.

BURNETT, J. Petitioner seeks the annulment of an award made by said Commission to said applicant for an injury received by the latter while employed by the petitioner to act as a general helper around a gold dredg er. It is claimed that the accident was due to the "willful misconduct of said Bert Bollinger, and therefore the Commission was without jurisdiction to make the award." It is admitted that if no other rational conclu

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 willful ed 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 about the wagons. Lord Trayner, in his decision, said:

Indeed, the attack and the defense relate. not only to the evidence, but to the sufficiency of the finding itself to support the conclusion of the Commission. It is the contention of petitioner that the facts found are compatible only with the position that the applicant was guilty of willful misconduct, and that petitioner is therefore not liable under the Work-I men's Compensation Act.

"The defenders had given this boy and others like him positive instructions that they were not to go across the line of rails or near the wagons. They had been repeatedly warned against doing so for fear of accident, and they knew that in doing so they were doing wrong. cannot figure anything more serious or willful than positive and intentional disobedience to a 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 on a steam thresher to unbind and hand same was in motion, and had been warned of the 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 pow-structed to remain at her place, and had been er, the machinery continues to move for 15 minutes 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 quescretion, 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 misaforesaid 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 opinion:

It is the contention of petitioner that a violation of such reasonable directions constitutes in itself willful misconduct, and that it is not condoned or mitigated by the excuse or apology contained in said finding. He claims:

"That the cases from all jurisdictions uniformly hold that the breach of an express rule or order, particularly if made expressly for the safety of an employé, constitutes serious or willful misconduct within the meaning of Workmen's Compensation Acts."

He cites a large number of cases, beginning with Scotland. Of these, it is asserted that two are practically on all fours with the case at bar. Both involved minors, and the injuries were occasioned by disobedience of rules. The first is Powell v. Lanarkshire Steel Co., Ltd., 6 Sc. Sess. Cas. (5th Series) 1039 (1904). Therein the father of Patrick Joseph Powell, a minor, claimed compensation for the death of said minor under the Compensation Act of 1897. At the time of his death he was 15 years of age (the same as

"I do not think that there can be a more distinct case of willful misconduct than one in having disobeyed a specific order, such as that which a person is injured in consequence of given here, and which was given in order to insure her safety."

Many cases, also, from other British jurisdictions are cited, of which we may refer to Best v. London & Southwestern Railroad Company (1907), A. C. 209, 8 Ann. Cas. 1, which went to the House of Lords. In that case, an engine driver, because his train was late, left the foot plate of his engine while in motion and mounted the coal on the tender, in violation of a rule of the company that "enginemen and firemen must not leave the. foot plate of their engine while the latter is in motion." He was killed by being struck by a bridge. It was claimed at the trial of the claim for compensation that the driver's object was to try and find better coal in order to make up the lost time. In the decision, the Lord Chancellor (Loreburn) said:

"This unfortunate man broke this rule, which certainly is a very serious rule. There was evidence that he knew of its existence, and that he knowingly and willfully acted in defiance of it. It was a rule to save life and to prevent danger, both to the public and to the servants of the company."

by the Supreme Court by reason of the willful misconduct of deceased, Mayfield, who had been employed as a lineman by said company. The company had issued orders that employés should not work on poles carrying live wires without using rubber gloves provided by the company. It was not shown that Mayfield did not know or understand this rule. On the day of the accident, Mayfield ascended a pole to cut a wire without taking his gloves, and he received a shock which caused his death. In discussing the meaning of the term "willful misconduct" the Supreme Court declared:

who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct, and that where the workman deliberately violates the rule, with knowledge of its existence and of the dangers accompanying its violation, he is guilty of willful misconduct."

"But it cannot be doubted that a workman

It was held that the evidence showed a deliberate violation of the rule, and hence the annulment.

In the same decision Lord Atkinson said: "I do not attempt to define what willful misconduct' is, nor to express any opinion which I might be unable to retract on further consideration, but it would appear to me. I confess, that if a man breaks a rule, knowing at the time that he is breaking it, and is not compelled to break it by some superior power which he cannot resist, he is guilty of a willful breach of it." Coming nearer home, it is the opinion of petitioner that we have in this state two decisions that virtually govern this, that is, Pacific Coast Casualty Co. v. Pillsbury et al., 162 Pac. 1040, and Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35. In the first of these, an errand boy in the employ of a millinery company in San Francisco had been expressly warned not to ride in or attempt to operate the freight elevators 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 reities. 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 Cassell [the deceased] in a manner suited to the intelligence of a person of his age," and therefore compensation was allowed. It was decided by the District Court of Appeal for the First District that there was no evidence to support these findings, and the award was accordingly annulled. In denying the petition for rehearing the court said:

"We are of the opinion that the undisputed evidence in the case showed that the deceased had been expressly warned not to ride in, or attempt to operate, the freight elevators in the building in which he met his death, under penalty of discharge, and that notices were posted at, or near, the entrance of such elevators of similar import, and that the disregard of such warning by the employé must, in the absence of evidence mitigating such disobedience, be held to constitute such willful misconduct as would prevent a recovery before the Commission, where, as in the instant case, there is no evidence tending to show that the disregard of its warnings, orders, and notices was condoned by the employer."

In the Great Western Power Case, supra,

legislation is pointed out, and it is declared that under the system of workmen's compensation acts now adopted in California and in approximately 35 states of the Union, the industry is made to carry the cost of injuries sustained by its employés in the course of its operation, without regard to the fault of either the employer or employé. Or, as stated by the Supreme Court of Montana in Lewis & Clark County v. Industrial Acc. Board of Montana, 52 Mont. 6, 155 Pac. 268, L. R. A. 1916D, 628:

"Liability and compensation statutes cannot be grouped together, since they are the antipodes of labor legislation, having their foundation in essentially different social and economic ideas; the liability statutes being intended to limit the defenses of the master, and the compensation statutes to provide compensation for the workman regardless of negligence of master, fellow servant, or himself."

Attention is then called to a peculiar provision of the California act and of some of the other states, penalizing, so it is claimed, the

"The fact that the injury was occasioned by the employé's disobedience to an order is not disobedience must have been willful, or, as was decisive against him. To have that effect, the said by Lord Loreburn, in Johnson v. Marshall Sons & Co., Ltd. (1906), A. C. 409, 411, 'deliberate, not merely a thoughtless act on the spur of the moment.'"

It is asserted that the same rule is rectation hereinbefore made from 170 Cal. 180, ognized by our Supreme Court in the quo149 Pac. 35, where willful misconduct is de

scribed as the deliberate violation of a rea

for wanton and intentionally evil conduct, | work at the noon hour, and yet the court as provided in section 12b and section 12a said: (3) of our statute (Stats. 1913, p. 283), and it is claimed that this provision as to the employé was not intended as a substitute for contributory negligence, and it should not be so construed, but should be regarded in the spirit of section 21 of article 20 of the Constitution, authorizing the Legislature by appropriate enactment to "create and enforce a liability on the part of all employers to compensate their employés for any injury [sustained] by the said employés * irrespective of the fault of either party." To give effect to this provision and the obvious purpose of the said Compensation Act, it is claimed that the misconduct which would defeat the right of the employé to compensation must be more than even gross contributory negligence, in fact, must be the violation of reasonable rules or the doing of an extremely hazardous act which, under the common law, would amount to a breach of the duty owed to the employer, and, in addition, must be accompanied by a willfulness of intent or wrong motive amounting

to a mens rea. It is insisted that this is demanded by the language and spirit of the Compensation Act, and is supported by the decisions of this state and of other jurisdiç

tions.

Among the decisions cited from foreign jurisdictions is Jensen v. Bowen Bros. & Co., Ct. of Abr. of New Zealand, Canterbury Ind. Dist. (1909), vol. 8, Decisions under the Workmen's Compensation for Accident Act, 49, 50, wherein it is said:

"The question of serious and willful misconduct is one of fact to be determined on the circumstances of each case. In dealing with the question the court is not bound to treat every violation by a worker of a rule in force in the factory or works as amounting necessarily to serious and willful misconduct. Whether it is so or not depends on the nature of the rule and the circumstances in which the violation has taken place."

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The Supreme Court of Massachusetts, in the Matter of Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, declared that "serious and willful misconduct," for the consequences of which the employé is not entitled to compensation, under the Workmen's Compensation Act of that state, "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," and it was held that:

"Where an employé, engaged in cleaning and painting, began work around a moving shaft shortly before noon, although he had been ordered to do that work during the noon hour, while the machinery was stopped, his disobedience was a thoughtless act on the spur of the moment, rather than deliberate disobedience, and does not deprive his dependent of compensation under [said] act."

In that case, it seems that the deceased, less than half an hour before he was killed, was told by the superintendent to do the

sonable rule made for the workman's benefit, where he has knowledge of its existence and of the dangers accompanying its violation.

As to the two cases from this state cited by petitioner, respondents find substantial disparity with this. It is pointed out that in the young employé was killed in the accithe Pacific Coast Casualty Company Case dent, and it was impossible to discover his exact mental state in violating the rule, that is, whether it was willful disobedience or the

result of an inadvertence, and in the absence

of testimony on that point, the court natudrew the inference that it was deliberate and rally, from the bare fact of disobedience, willful. This, probably, was what the court had in mind in its opinion denying the petition for rehearing when it referred to the "absence of mitigating circumstances." Herein there is express testimony, negativing the drawn from the bare fact of disobedience. willfulness which overcomes any inference

In the Mayfield Case, supra, 170 Cal. 180, 149 Pac. 35, there was not only an absence of testimony tending affirmatively to establish inadvertence, but there was, in addition, testimony that the deceased had been warned, within a few hours before his death, of the danger of not wearing gloves, which was sufficient to establish willfulness. Mayfield was, moreover, a man of mature years.

As to the cases from foreign jurisdictions cited by petitioner no specific attention is paid to them by respondents. However, the most important ones appear for the first time in the reply brief of petitioner, it being stated therein that:

"Since receiving respondents' reply brief we have been to some trouble to look up the cases under workmen's compensation acts interpreting that most of said cases originated in the courts or defining 'willful misconduct,' and have found of Great Britain."

It would have been more satisfactory if petitioner had taken the trouble to do that before filing his opening brief. We cannot undertake to examine these cases in detail. Most of them, we may say, involved adults and accidents under circumstances leading necessarily to the conclusion that there was willful violation of reasonable rules for the safety of the workmen.

[1] Again, while some of the cases called for a consideration of "serious and willful misconduct," it is apparent that the word

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