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Serious and wilful misconduct; intoxication

to work he was injured by one of the saws. It was contended by the employer that there was no contract of employment, on the ground that the workman had deceived him as to his representations that he understood the use of saws. It was held that the workman had not been guilty of such wilful and false representations as would make void the contract of employment, that he was not a casual employé and that he was entitled to compensation at at least the minimum amount specified in the statute of $5 a week, for the number of weeks specified in the act for the loss of a thumb and the partial loss of the use of the first finger and the loss of the use of the fourth finger. Mueller v. Oelkers Mfg. Co., Essex Common Pleas, February, 1913; 36 N. J. Law J. 117.

The deceased employé was working on a carding machine. His hand was caught in the cylinder and the gear connected with it and badly lacerated, necessitating the amputation of three fingers. The other injuries to the hand above the fingers were dressed and treated, an effort being made to save as much of the hand as possible. The workman was taken to the hospital and while there gangrene set in and he died. It appeared in the evidence that on each of the carding machines there was one or more signs reading "Hands Off", and also that there were signs throughout the factory and in the carding room to the effect that "cleaning machinery while in motion is strictly forbidden." It appeared that the deceased was in the act of picking off some of the cotton, which had collected on the card cylinder near the gear, when he received the injury, and that such act constituted a violation of the above rules. It appeared that the signs were put on the machines because they worked automatically and if there was any interference with them that there would be a defect in the work produced; and that the signs "Hands Off" were placed on the machines by the manufacturers thereof. It also appeared that it was necessary in the operation of the machines to pick off accumulations of cotton, while the machinery was in motion and that

Serious and wilful misconduct; intoxication

the employés were expected to do this; that if they did not do it there would be an unevenness in the work, which impaired its quality. It was held, therefore, that the employé was not guilty of wilful and intentional misconduct and compensation was awarded. Dr. Denton Sleeping Garment Co. v. Redfield, Mich. Indus. Acc. Bd., Nov. 3, 1913; The Indicator, Nov. 5, 1913, page 442.

An applicant lost the tips of the thumb, index and second fingers, which were removed below the first joints, as a result of an explosion of a dynamite cap from which he was endeavoring to pick the contents, for the purpose of forming a nipple for his mine lamp. The employer denied liability on the ground that nipples were supplied to the men at a nominal cost, that the applicant had no right to have a dynamite cap in his possession, and that the act constituted wilful misconduct. The board, however, held in favor of the workman and granted compensation for ninety-two and onehalf weeks. Macieza v. Mass Consolidated Mining Co., Mich. Indus. Acc. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, page 417.

The decedent became jammed between a tow line and the corner of the cabin on a tug of the respondent, the injuries proving fatal. The employer denied liability, on the ground that decedent had been ordered away from the place where he was hurt, and that he had disobeyed orders, it being contended that such disobedience constituted wilful misconduct. The Board decided in favor of the workman and awarded compensation. Bedore v. General Ice Delivery Co., Mich. Indus. Acc. Bd., Oct. 15, 1913; The Indicator, October 20, 1913, at page 417.

When the whistle blew a workman started on a run for the time clock, a distance of about 150 feet. After proceeding about 30 feet he collided with a fellow employé, fracturing or injuring one or more of his ribs. The employer contended that the death was not the result of the accident and that the workman was guilty of intentional and wilful miscon

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Serious and wilful misconduct; intoxication

duct. The Board ruled that the accident was the proximate cause of the workman's death and that, under the circumstances, the deceased was acting in the course of his employment when he received the injury. On this point the Board said: "He was required to proceed from his bench to the time clock and to punch the time clock before leaving the room in which he was working. This was a duty imposed upon him by his employer, and he was in the act of performing that duty at the time he received the injury. We are also of the opinion that the injury arose out of his employment, within the meaning of Act 10, Public Acts of 1912. The evidence fairly shows that it was customary for the men to run for the time clock when the whistle blew and crowding and collisions resulted and were likely to result. Did the action of deceased in running toward the time clock amount to intentional and wilful misconduct within the meaning of the compensation Law? The evidence shows that respondent had forbidden such running by rule, but it was also shown that such rule was not enforced. Rayner's immediate foreman acknowledged that the rule against running was not enforced. The mere fact that a rule was made forbidding running to the time clock is not controlling when its general violation is acquiesced in by the employer. The action of Mr. Rayner in running to the clock did not differ materially from the action of the considerable number of other employés. It did not amount to intentional and wilful misconduct." Rayner v. Sligh Furniture Co., Mich. Indus. Acc. Bd., June, 1913.

A workman was injured while oiling machinery, by placing his hand on certain gears. A large piece of flesh was removed from the third finger of the left hand. The employer objected to paying compensation on the ground that there had been a violation of shop rules and also on the ground of wilful negligence of the employé. Compensation was awarded. Goble v. Continental Motor Car Co., Dec. of Mich. Arbitration Committee, Dec. 18, 1912.

Disobedience of specific orders

C. L. Belknap was killed on November 27, 1912. Death claim of $5,000 in weekly payments of $32.05 was disputed by defendant on the ground of deceased's wilful misconduct in violation of orders. Amount named awarded widow. The claim of wilful misconduct was based on the ground that deceased was the foreman who had charge of the work of unloading piles from a railroad car, and used his discretion in unloading without the use of ropes which were ordered by employer. The evidence showed that this condition had prevailed for between one and two weeks prior to the employé's death, and while the superintendent was in the vicinity of the work. Held that orders issued must be enforced and that the fatality was not caused by wilful misconduct. Belknap v. Mervy-Elwell Co., Cal. Indus. Acc. Bd., May 27, 1913.

A finding of serious and wilful misconduct is a finding of fact not of law. Donnachie v. United Collieries (1910), 47 Scotch L. R. 412. The finding of the Industrial Commission under the Wisconsin Workmen's Compensation Act that the death of an employé was not caused by his wilful misconduct is conclusive where, under the evidence, it might have found that he did not intentionally become dangerously or helplessly intoxicated. Nekoosa-Edwards Paper Co. v. Industrial Commission, 000 Wis. 000; 141 N. W. Rep. 1013. 18. Disobedience of specific orders.1

This subdivision is closely related to the preceding one. Disobedience of specific orders may amount to serious and wilful misconduct. That phase of the subject is discussed in the preceding paragraph. Again such disobedience may so remove the workman from the sphere of his duties that it may be said that he is not performing any of the duties for which he was employed, if an injury occurs while the disobedience continues. This latter phase of the subject is discussed in the present subdivision. It seems that a work1 See next preceding numbered paragraph.

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Disobedience of specific orders

man who is injured while doing something which he has been absolutely forbidden to do cannot be said to be injured while in the course of his employment. Whitehead v. Reader (1901), 3 W. C. C. 40. Compensation was awarded in the last-mentioned case, however, it being held that the facts did not bring it within the rule stated. A workman, who was sharpening tools on a grindstone, which was run by steam power, attempted to replace a belt, which had come off. In doing this he was injured. It was contended that he had been instructed not to interfere with the machinery in any way, his duties being merely to sharpen tools. It was held, however, that this was not such a breach of his orders as to remove the workman from the sphere of his employment. A servant, although in a place where his duty requires him to be, may, nevertheless, so conduct himself at the time of the injury as to be outside the scope of his employment, so as to relieve the master from liability. (E. L.) Williamson v. Berlin Mills Co., 190 Fed. R. 1. Thus a shop boy, whose duty it was to turn a lever on a punching machine and to perform other such minor services, one day, while the punching machine was not running, attempted to turn the lever, or handle, on a rolling machine, with which he had nothing to do, and while making the attempt his left foot slipped between the rollers and he was badly injured. It appeared from the testimony that the claimant had been ordered on a number of occasions not to turn the lever on the rolling machine and that it was no part of his duty to do anything in connection with the rolling machine at all. It was held that the injury did not arise out of the employment and compensation was refused. Re Victorino Morales, Op. Sol. Dep. C. & L., page 230.

A railroad flagman who goes to sleep on the track is not in the discharge of his duty and is, in effect, a trespasser, and the company owes him no duty other than not to run over him after discovering his peril. (E. L.) Louisville & N. R. Co. v. Holland, 51 So. Rep. 365; 000 Ala. 000.

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