Serious and wilful misconduct; intoxication while needlessly loitering, through curiosity or otherwise, in the room, the roof of which was momentarily expected to fall as a result of the shock of a blast, there could be no recovery for his death. An action cannot be maintained under the Employers' Liability Act (Revised Laws, Chap. 106, § 73) for a wrongful death unless the decedent was acting in the service of the defendant at the time of the accident. (E. L.) Gooch v. Citizens Electric St. Ry. Co., 88 N. E. Rep. 591; 202 Mass. 254. In the last-mentioned case the decedent was employed by defendant as a regular motorman to operate a car during certain hours each day. He wished to be relieved from duty during one day and he was promised that he could have such relief if he could find a substitute. While trying to find such a substitute he was killed, apparently by an electric shock, in the telephone booth in the defendant's waiting room. It was held that the defendant could not recover, as the decedent was not in the defendant's service at the time of the accident. A coal miner, who, during the noon hour, while not engaged in work, goes to a different part of the mine for the purpose of visiting with another miner, is not, while so absent, engaged in the line of his duty so as to impose upon the employer the duty of a master to see that the entry through which he passes to the part of the mine where he is employed, is kept in a safe condition for his passage. (E. L.) Ellsworth v. Metheney, 104 Fed. 119; 51 L. R. A. 389. 17. Serious and wilful misconduct; intoxication.1 The provision in many of the compensation acts to the effect that benefits shall be denied if the injury is due to the serious and wilful misconduct of the workman, has been the subject of a good deal of discussion. There are certain cir 1 See next succeeding numbered paragraph. See also specific provisions of the compensation statutes of the various American States in Article D, in this Chapter. Serious and wilful misconduct; intoxication cumstances under which it seems, at first thought, the height of injustice to compel employers to pay compensation for injuries received by the workmen. When, for example, an employer gives specific and plain instructions to a workman, which are fully understood by the latter, not to do a particular thing or to refrain from interfering with or touching a specific machine and the workman disobeys the order, it is not easy to understand why the employer should suffer the consequences by being compelled to pay compensation to the workman for the injury. Yet all of the compensation acts do not contain this provision. Some of them deny compensation only when the injury is wilfully or intentionally inflicted. Various other terms are found in the different statutes. No doubt the British Act has had considerable influence on the subject, as have also the reasons which impelled the adoption of the British rule. There compensation is denied if the injury is caused by serious and wilful misconduct, unless it results in serious and permanent disablement or death. The British rule was undoubtedly adopted out of a tender regard for the hardships of the workman's family in such cases and has been retained in spite of a good deal of very harsh criticism.1 Disobedience of orders is misconduct but it is not always serious and wilful misconduct within the decisions under the compensation acts. Under some of the statutes compensation is denied when an accident is caused by the employé's intoxication. The specific provisions of the various statutes in the American States will be found collated at the end of this subdivision. Where a workman knowingly breaks a rule made by the employer in the interests of the safety of the workmen and for their own protection and that of the public, such act on his part is evidence of serious and wilful misconduct within the meaning of the Act. Bist v. London & South Western Ry. Co. 1 See discussion of this subject at page 6. Serious and wilful misconduct; intoxication (1907), 96 L. T. 750; 9 W. C. C. 19. The last-mentioned case was decided by the House of Lords. The accident occurred on March 4, 1905, prior to the enactment of the present Compensation Law. In that case an engine-driver was killed by being hit by a bridge over the track. He had climbed back on the tender, for the purpose, it was contended, of getting a better quality of coal, to make the engine steam better so lost time could be made up. The company had issued a rule forbidding the driver or fireman to leave the running board while the engine was in motion. The court held that the violation of this rule was such serious and wilful misconduct as precluded the dependents of the driver from recovering compensation. The section of the British Compensation Act under which this decision was made was amended in the revision of 1906, § 1, (2) (c) by adding the words in italics in the paragraph below, making it read as follows: "If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of the workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed." He did A workman was employed to oil machinery and was strictly forbidden to oil it when it was in motion. He had been seen to do so, and warned against the practice. so again and received injuries from which he died. It was held that the accident arose out of the employment and compensation was awarded. Mawdsley v. West Leigh Colliery Co. (1911) 5 B. W. C. C. 80. The decision in the last-mentioned case was on the ground that, as the accident resulted in death, the provisions of the amended British Act relating to serious and wilful misconduct did not apply. Whether or not misconduct is serious is to be determined from its nature, and not from its consequences. Johnson v. Marshall Sons & Co., 22 T. L. R. 565. Misconduct is not serious merely because the actual con Serious and wilful misconduct; intoxication sequences in the particular case are serious; the misconduct must be serious in itself. Any neglect is serious within the meaning of the British Compensation Act, which in the view of reasonable persons in a position to judge, expose anybody, including the person guilty of it, to the risk of serious injury. Or if the injury to be feared is of such a character that it may be described as serious, then the case is within the language of the Act. Hill v. Granby Consolidated Mines (1906), 12 B. C. 118; 1 B. W. C. C. 436. In the expression "serious and wilful misconduct," the word "serious" applies to the misconduct itself and not to the actual consequence of it; and the word "wilful" imports that the conduct was deliberate and not merely a thoughtless act on the spur of the moment. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. Proof of negligence merely is not sufficient to maintain a charge of serious and wilful misconduct. Rees v. Powell Duffryn Steam Coal Co. (1900), 4 W. C. C. 17. A boy working at a machine used for cutting screws leaned over a circular saw which was in motion, to pick up an uncut screw which had fallen from its place and in doing so injured his finger. He had been told frequently not to put his hand across the saw. It was held that there was evidence of negligence, but not of serious or wilful misconduct which would preclude the boy from recovering compensation. Reeks v. Kynoch (1901), 4 W. C. C. 14. Whether an employer would be justified in dismissing a workman without notice is a test of whether or not misconduct is serious and wilful. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. It is not every breach of a rule that will constitute serious and wilful misconduct. The question is one purely of fact to be determined by the arbitrator in each case. (House of Lords) George v. Glasgow Coal Co. (1908), 99 L. T. 782; 2 B. W. C. C. 125. A bare breach of regulation from which no injury could reasonably be anticipated is not serious mis Serious and wilful misconduct; intoxication conduct. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. If a workman unnecessarily breaks an express and emphasized order made solely for his own protection, and which he fully understands and appreciates, he is guilty of serious and wilful misconduct. Jones v. London & South Western Ry. Co. (1901), 3 W. C. C. 46. Deliberate and intentional disobedience on the part of a workman to an oftrepeated order whereby he and his fellow workmen are placed in danger, is serious and wilful misconduct. It is no answer to this defense that the workman believed the course he was adopting when disobeying his instructions was not a dangerous one. Brooker v. Warren (1907), 23 T. L. R. 201; 9 W. C. C. 26. In the last-mentioned case a fatal accident was caused by the act of the deceased in removing a guard from a circular saw. Compensation was refused. A workman was cautioned by a foreman not to use a freight elevator until he was acquainted with it. He, nevertheless, attempted to use it and later in the day was found dead, jammed between the side of the elevator and the floor. There was no evidence that he had not been instructed in the use of the elevator and that he had not had an opportunity of becoming acquainted with it. It was held that the employers had not discharged the onus resting upon them to show that the deceased had been guilty of serious and wilful misconduct, and therefore compensation was awarded. Granick v. British Columbia Sugar Refinery Co. (1910), 15 B. C. R. 193; 4 B. W. C. C. 452, rev'g (1909), 14 B. C. R. 251; 2 B. W. C. C. 511. A collier ordered to cut a road in the colliery left his work and went to cut coal in a part of the mine where it was forbidden by special rule to cut any, and he thereby undermined some props, and caused a fall, which killed him. It was held that the accident did not arise out of nor in the course of the employment. The court said: "If a workman is doing F The |