conduct, especially where wholly unnecessary, even if not unusual in the locality and not in violation of rules and orders of the employer. (Fidelity & Deposit Co. v. Industrial Accident Commission, 154 Pac. 834.)

A compensation commissioner of Connecticut made an award in the case of a motorman killed in a head-on collision said to be due to his running his car beyond an agreed stopping point. The same view was taken as to the evidence in fatal cases as that indicated by the California commission, pointing out that a distinction should be drawn between a criminal action against a living man and a compensation claim made by dependents of a deceased employee. It was said that "serious and willful misconduct connotes deliberation and intention, mere carelessness or negligence not being sufficient." The Supreme Court of Michigan applied practically this view in the case of a man injured by failure to observe the movements of the crew of a train on a track which he was crossing, the court saying that, though there was gross negligence, it was not willful and intentional misconduct so as to defeat the recovery (Gignac v. Studebaker Corporation, 152 N. W. 1037); while in New Jersey the defense of willful negligence was not allowed where a workman digging at a pier was injured by falling objects, the court saying that intentional self-infliction and intoxication were the only bars to recovery mentioned in the act of that State (Taylor v. Seabrook, 94 Atl. 399).

Less liberal was the ruling of the public service commission of West Virginia where a "pickler" in a sheet-iron mill attempted to secure his tongs, which had slipped from his hand into the acid solution, and was burned thereby. Compensation was refused on the ground that he knew of the injurious nature of the acid, so that reaching his arm into it was equivalent to serious and willful misconduct. The element of disobedience to rules and orders was involved in several cases in hand, the Supreme Court of California denying compensation to a lineman who was killed by contact with a live wire, though he had rubber gloves with him and had been instructed to use them, an award of the commission in favor of his beneficiaries being annulled. (Great Western Power Co. v. Pillsbury, 149 Pac. 35.) The earlier administrative body of the State (the accident board) had formulated a rule that "convincing proof of the deliberate intentional violation of a rule formulated, brought to the attention of those whom it is designed to govern, and diligently enforced, will establish willful misconduct." The later commission, however, made an award in favor of a claimant who was injured while performing a service which it was stated he had been forbidden to render, the commission saying that where it appears that the disobedience of an oral instruction was not actuated by willful 42704°-17—16

desire to disobey an order, but by a wish to further the employer's interests, it is not willful misconduct so as to defeat a claim.

This latter principle was applied by the industrial board of Illinois to the case of a workman who volunteered to operate a punch press whose operator he was to serve by the delivery of material to him, the operator being at that time absent. It was held here that the violation of orders, specific or general, does not amount to willful misconduct or take one out of the course of his employment if it is done in good faith and upon the theory that it is for the best interests or promotes the business of the employer. In the other case it is said that to make a ruling that a workman violating instructions or committing acts of negligence or willfulness should not be entitled to compensation would add to the law by the exercise of judicial powers not conferred upon the board by law.

The Supreme Court of Massachusetts allowed compensation in a case where a man was told that he must do certain work only when the adjacent machinery was at rest, but came in contact with a revolving shaft and was killed. The court said in this case that serious and willful misconduct means more than negligence or gross negligence, and that disobedience to orders, to constitute such misconduct, must be deliberate and not merely thoughtless. (In re Nickerson, 105 N. E. 604.) In a case before the industrial accident board of the State, however, compensation was denied a workman who was injured by contact with a machine which he had no occasion to touch, but which he had been told repeatedly not to touch or work on, and had been threatened with discharge if he used it contrary to orders. Misconduct was charged in the Rayner case (p. 239), where a workman was injured while running to punch thẹ time clock. This, however, the Supreme Court of Michigan disallowed.

In two cases the Supreme Court of New Jersey denied compensation where injuries were fatal, on the ground of disobedience, one being that of an employee using an automobile contrary to specific and immediate orders (Reimers v. Proctor Publishing Co., 89 Atl. 931); the other that of a workman on a building who was of infirm health and had been forbidden to go on any scaffold, and was killed by a fall following disobedience of the order (Smith v. Corson, 93 Atl. 112).

In two cases also the industrial commission of Wisconsin denied benefits on account of injuries, one of them fatal, where men undertook the operation of appliances which they had been forbidden to

use.

That the injury was self-inflicted was made the ground for the denial of benefits in two West Virginia cases, both being cases where the workman opened pimples or blisters, infection following, the

pubic service commission saying that the injury was not the result of employment, but was a self-inflicted injury in no wise connected therewith. The opposite view was taken by the accident commission of California, where a man undertook to remove a sliver from his finger with a pocketknife against the protest of the employer's wife. The commission said that the action was unwise, but did not consti- . tute willful misconduct. In another case metal splinters were extracted from the hand of a toolmaker with forceps, infection and dermatitis following, a Connecticut compensation commissioner here ruling that the employee was guilty of willful misconduct, there being full instructions for reporting injuries in all cases.

Intoxication is mentioned in a number of laws as a bar to claims, or it may be classed in itself as serious misconduct. The California commission rejected this defense in an instance where the only evidence was that of the smell of liquor on the breath and perhaps an admission of the occasional use of beer, it being said that this did not meet the burden of proof required. In three cases reported from two compensation districts of Connecticut claims were disallowed on the ground of the intoxication of the injured man, in one instance the commissioner saying that the employee was guilty of willful misconduct in using intoxicants while in the course of employment; in the second a quarrelsome and abusive man under the influence of liquor was ordered to leave the works, and fell or was thrown down while being ejected; in the third case a teamster under the influence of liquor was permitted to remain at work on the strength of a promise that he would drink no more that day, which promise was broken, and the man fell off the wagon in the afternoon and suffered serious injuries.

The omission of any mention of intoxication or willful misconduct in the law of Illinois, already mentioned, left the industrial board of that State free to approve the claim of a beneficiary of a man who had fallen down a stairway while intoxicated. The law of Massachusetts bars injuries due to serious and willful misconduct, and the degree of intoxication found in two cases, reports of which are at hand, was held by the accident board of the State as sufficient to bar recovery, one instance being that of a man falling from his wagon, while in the second the injured man was struck by an electric truck in the street.

The converse to the barring of claims by reason of the willful misconduct of the employee is the principle of allowing special damages or double compensation where the employer is so careless of the welfare of his employees as to incur such liability under the law. A committee of arbitration under the Massachusetts law had made an award of double damages as for wanton and reckless disregard of an employee's saftey in neglecting to furnish a kicking strap for a horse

of known vicious disposition. The industrial accident board of the State reversed the penal part of the award, saying that the employee knew of the tendency and should have been cautious, and that the personal injury could not be held to have resulted from the serious and willful misconduct of the superintendent.

The Ohio statute allows suit for damages where injury results from the willful acts of the employer, and it was held by a Federal court that it was not necessary that there should be a deliberate intent to do bodily injury, but that liability would lie where there was, as appeared in the instant case, an "utter disregard of consequences.' (McWeeney v. Standard Boiler & Plate Co., 210 Fed. 507.) It may be noted that the legislature of the State subsequently amended the law by incorporating a definition of the term "willful act," restricting it to an act done knowingly and purposely with the direct purpose of injuring another," thus controverting the position taken by the court in the McWeeney case. This definition comports with the interpretation placed upon the term "deliberate intention" found in the Oregon statute, the supreme court of that State saying that it does not imply carelessness or negligence, however gross, but a determination to injure. (Jenkins v. Carman Mfg. Co., 155 Pac. 703.)

66

LIABILITY OF THIRD PARTIES.

It is commonly provided by the statutes that where the injury to an employee is due to the negligence of a third party, claim may lie against the employer, he being subrogated to the rights of the injured man, and entitled to sue; or the workman himself may sue, the employer being thereby left free from liability. In construing this provision of the Massachusetts statute the supreme court of the State held that the injured employee has the choice of remedies and if he dies his personal representative has similar rights to elect which of the two remedies he will pursue; an insurer giving relief under his contract is not equitably subrogated to the rights of the injured man, but stands as an assignee of such rights, and may proceed in any amount that the latter could recover, not being limited by what he as insurer has paid or was liable to pay. (Turnquist v. Hannon, 107 N. E. 443.) The same court had before it a case in which a man injured by the negligence of a third party had recovered from him for the injuries received and subsequently died therefrom. It was held that the widow could look to the employer for benefits under the compensation law, as her rights were independent of her husband's, and were not affected by his receipt of any sum from the third party. (In re Cripp, 104 N. E. 565.) But the injured man himself, having accepted benefits under the act, can not then have recourse to a suit against the third party. (Barry v. Bay State Street Ry. Co., 110 N. E. 1030.)

The validity of the corresponding provision of the Minnesota statute was vigorously attacked in a case (Matheson v. Minneapolis Street Ry. Co., 148 N. W. 71) in which a city employee sued a street railway company for injuries inflicted by one of its cars while he was laying paving near the track. The right of the injured man thus to sue for damages in spite of the fact that the city and its employees were under the compensation law was sustained, the court pointing out that there was to be but a single recovery, and that no provision in regard thereto contravened the fundamental law of the State.

A New York claimant undertook to recover from both his employer and a third party, which the supreme court of the State, appellate division, held impossible. (Miller v. New York Rys. Co., 157 N. Y. Supp. 200.) The same court passed upon a case in which the injured man had signed a release to the third party, and sued to recover compensation under the law, the court holding that the release would serve only to reduce his claim for compensation by the amount paid for such release, and was not an absolute bar to the claim; on the other hand, the release would be ineffectual as against the insurer's rights to recover from the third party unless the insurer had assented thereto in writing. (Woodward v. E. W. Conklin & Son, 157 N. Y. Supp. 948.)

The Ohio statute permits employers to act as self-insurers on a showing of financial ability, etc. No provision as to injuries by third parties appears in the law, and the industrial commission of the State ruled that an employee injured by the negligence of a third party might proceed both against such party for damages and against his employer for compensation under the act. The Supreme Court of New Jersey passed upon a case which was practically identical in its situation to the facts in the Cripp case above, and the court held that in the existing state of the law not only could a widow recover from the employer under her independent right, but further that the employer was not subrogated to the rights of the injured man as against the third party. (Newark Paving Co. v. Klotz, 91 Atl. 91.) It was said that double compensation would be possible under the circumstances, just as was allowed under the ruling of the Ohio commission last noted; but it was said that this situation, if it was to be remedied, must be remedied by the legislature. Action was subsequently taken to this end, and an amendment to the law subrogates the employer to the rights of the injured man against the third party, where compensation is claimed under the law.

In West Virginia, as in Ohio, the law omits all reference to injuries due to the negligence of third parties, and the supreme court of that State decided (Mercer v. Ott, 89 S. E. 952) that the personal representative of a man killed by the fault of a third party might