ordinary negligence or amounted to foolhardiness or daredeviltry. That the act of the deceased in driving at said rate of speed was not in violation of any instructions, rules or orders made by the said employer, the W. D. Head Drilling Company, for the safety of its employees or any of them." While so driving the car it ran into a sandy piece of road and overturned. Head was killed and the driver injured. The law of this state in the Motor Vehicle Act (Stats. 1913, p. 649) declares: "Every person operating . . . a motor vehicle on the public highways of this State shall operate the same in a careful and prudent manner and at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway, and no person shall operate or drive an automobile or other vehicle on the public highway as to endanger the life or limb of any person or the safety of any property; provided, that it shall be unlawful to drive at a rate of speed in excess of 30 miles an hour." A violation of this provision is declared a misdemeanor, punishable by fine or imprisonment or both. Admittedly, therefore, under the very findings of the commission, Head was violating the express mandate of the law designed for his own protection, for the protection of the other occupants of the car and for the protection of the general public. His act in so doing was criminal. Much of the finding of the Commission which we have quoted at length is quite beside the question and without the slightest persuasive force. It matters not, for example, that the evidence is insufficient to establish that such speed was "unusual according to the usual custom of drivers of automobiles in that vicinity". That forty men violate the law and commit crimes is neither justification nor excuse for the forty-first man who does the same thing. Nor yet does it matter that Head was not afflicted with "speed mania," nor that his excessive speed did not "amount to foolhardiness or daredeviltry." Nor is it of the slightest consequence that Head was not violating any rule or order made by his company. Indeed, it would be as remarkable as it would be unnecessary for an employer to give a specific instruction upon a matter completely covered by a penal statute. The plain and unescapable fact is that Head was criminally violating a law designed for his own protection and for that of the general public. The statute itself forbade him from endangering "the life or limb of any person", himself as well as others, and fixed the danger point of speed at 30 miles an hour. The finding is that his rate of speed "was not entirely safe." But even without such a finding or if the finding declared it to be a safe rate of speed, the fact still remains that the deceased wilfully and deliberately misconducted himself and violated the plain mandate of the law. Says Willis (Workmen's Compensation, p. 58): "Where there is a deliberate and unmistakable act of disobedience to an express order, or where there is a deliberate breach of a law or rule, which is framed in the interests of the workingman, it will be held that such a breach or such disobedience amounts to serious misconduct." There is no finding and indeed nothing in the record extenuating or excusing the conduct of the deceased. He was not even impelled by the desire to make the train connection. He had four hours in which to travel forty miles. The conclusion is unavoidable that he was guilty of the wilful misconduct contemplated by the law. For this reason, without consideration paid to any of the other propositions urged upon our attention, the award of the commission must be and hereby is annulled. We concur: MELVIN, J. SLOSS, J. SHAW, J. ANGELLOTTI, C. J. LAWLOR, J. HENSHAW, J. 68-22160 Adkins, Dennis, vs. San Joaquin Light and Power Company 833 Akins, Mohava, vs. Pacific Light and Power Corporation et al. 911 Allen, Alice Worthington, vs. Denman & Murdock et al.-- 464 889 77 Allen, Gaylord S., vs. Holt Manufacturing Company et al.. Allen, W. J., vs. McCloud River Lumber Company.. Amalgamated Oil Company vs. Argyle.... 196 903 750 588 782 452 984 528 Amalgamated Oil Company et al. vs. Leyman 223 Amalgamated Oil Company et al. vs. Morrison. 272 Ambrose, Thomas L., vs. Lasky Feature Play Company et al. Ames, John Fisher, vs. Central California Canneries et al.. 1005 Amrakar, Martin, vs. Pacific Lumber Company-- 107 Anaratone, Carlo, vs. Lemoore Canal and Irrigation Company et al.. Anderson, J. J., vs. Imperial Valley Oil and Cotton Company PAGE. Anderson, Peter, et al. vs. San Diego Electric Railway Company. 263 208 768 175 Arata, L. & Company, vs. Sira-. Arcata and Mad River Railroad Company et al. vs. Grassini.. 624 914 168 584 Arequipa Sanatorium vs. Pacific Coast Casualty Company. 1005 528 577 Arrigoni, Pietro, vs. Holt Manufacturing Company et al.. 447 31 777 40 Ashton, Harvey C., vs. Erskine 935 Associated Charities of San Francisco et al. vs. Gerard_ 705 451 845 26 Atchison, Topeka and Santa Fe Railway Company vs. Battenfield. Aylward, William, vs. Oceanic Steamship Company et al.. Barneburg, Mrs. Eva, vs. Northwestern Pacific Railway Company. Barneson-Hibberd Warehouse Company vs. Makay Barnhart, Charles A., vs. Boggus et al... Barron, F. E., vs. City of Venice_____ 336 141 927 31 Bartol, John, vs. Golden Centre of Grass Valley Mining Company et al.-------. 970 PAGE. 120 Batchelder, J. P., vs. Mount Whitney Power and Electric Company et al.. 307 619 298 Baxter, John, vs. Oakland-Antioch and Eastern Railway Company et al.. 661 Bay Counties Express Company et al. vs. H. Christensen-. 999 Bay Shore Drayage Company vs. Denman_. Bay Counties Express Company vs. Graham_ Bay Wrecking and Improvement Company et al. vs. Gurnel_ Beam, John, vs. Baxter___. 47 617 707 336 298 Beauchamp, J. W., vs. Chanslor-Canfield Midway Oil Company. Behre, Henry, vs. Pacific Woodworking Company et al. Benkendorf, Clara, vs. Glenwood Hotel Company et al... Bergisch, August, vs. Keystone Ornamental Iron and Bronze Works et al... 622 Berkeley Daily Gazette et al. vs. Brown--. 841 Berkeley Steel Company et al. vs. Brown-. 817 Berry, Clark Spencer, vs. Pacific Coast Steel Company et al. 200 Berry, Mrs. Eliza, vs. Wilson_-_ 615 Berry-Mackie Company et al. vs. Schlegal et al.. 466 Berthold, E. F., vs. McCormick Steamship Company et al. 919 Bertram, M. Grace, vs. Crocker Company. 392 Bewick, Mrs. Anna, vs. Petaluma Steam Laundry 859 Bianchini, Carlo, vs. Selby Smelting and Lead Company_ 219 Biggs, Mrs. Rosa, vs. Pacific Light and Power Company.... 536 Billingsley, Mrs. E. M.,. vs. United Tuna Packing Company et al.. Bloom, F. E., vs. Pacific Hardware and Steel Company et al. Bohma, Mrs. Aline, vs. Western Union Telegraph Company. 282 |