the purpose of speaking to another girl on the other side. of the opening. In crossing the opening, her foot slipped and was caught by the revolving drum and her right leg was taken off below the knee. One question presented to the appellate court was whether her conduct in leaving her place and attempting to step across the opening in the machine amounted to serious and willful misconduct on her part in the sense of the Workmen's Compensation Act. It was held that she was so chargeable, it being stated in the opinion: "I do not think that there can be a more distinct case of willful misconduct than one in which a person is injured in consequence of having disobeyed a specific order such as that 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 R. R. Co. [1907], App. Cas. 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." 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.,

31 Cal. App. 701, [162 Pac. 1040], and Great Western Power Co. v. Pillsbury, 170 Cal. 180, [149 Pac. 35, 9 C. C. A. 466].

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. Notices to the same effect were also conspicuously posted near the entrances of the freight elevators. Said errand boy, upon returning from an errand, attempted to ascend by way of one of the freight elevators to the floor where his employer had his place of business, and, in so doing, to operate the elevator himself. The boy was killed and compensation was sought for his death. The Industrial Accident Commission made findings "that the deceased and other employees of the defendant frequently operated said Fifth Street elevator by themselves without reproof or discipline by said defendant," and "that the signs placed by the owners of said building upon the doors of the elevators were habitually disregarded without protest," and furthermore, "that the protection of its employees from serious bodily injury or death in connection with the operation of such elevators 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 employee 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, the award by the commission was annulled 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 employees 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: "But it cannot be doubted that a workman 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." It was held that the evidence showed a deliberate violation of the rule, and hence the annulment. It must be conceded that petitioner makes a strong and persuasive argument, buttressed as it is by an imposing array of authorities. On the other hand, the contention of respondents is entitled to serious consideration. It is claimed that the defense of willful misconduct is an affirmative defense in the nature of a penal provision forfeiting compensation for willful wrongdoing; that the burden of proof is upon the employer to establish this defense, and that it was not established in the present case by reason of the failure of the employer to prove the necessary element of willfulness. In amplifying their position, respondents indulge in an interesting historical review of the common law and of the statutes culminating in the workmen's compensation acts as they relate to the redress for injuries afforded to the employee. The dissimilarity between the common-law remedy and that under the modern legislation is pointed out, and it is declared that under the system of workmen's compensation acts now adopted in California and in approximately thirty-five states of the Union, the industry is made to carry the cost of injuries sustained by its employees in the course of its operation, without regard to the fault of either the employer or employee. Or, as stated by the supreme court of Montana in Lewis & Clark County v. Industrial

Acc. Board of Montana, 52 Mont. 6, [155 Pac. 168]: "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 employer or employee, as the case may be, for wanton and intentionally evil conduct, as provided in section 12 (b) and section 12 (a) (3) of our statute (Stats. 1913, p. 283), and it is claimed that this provision as to the employee 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 XX of the constitution authorizing the legislature by appropriate enactment to "create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employces in the course of their employment 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 employee 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

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 jurisdictions.

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 will

ful misconduct. Whether it is so or not depends on the nature of the rule and the circumstances in which the violation has taken place."

The supreme court of Massachusetts, in the Matter of Nickerson, 218 Mass. 158, [105 N. E. 604], declared that "serious and willful misconduct," for the consequences of which the employee 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 employee, 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 work at the noon hour, and yet the court said: "The fact that the injury was occasioned by the employee's disobedience to an order is not decisive against him. To have that effect, the disobedience must have been willful, or, as was said by Lord Loreburn in Johnson v. Marshall Sons & Co., Ltd., [1906], App. Cas. 409, 411, [5 Ann. Cas. 630], 'deliberate, not merely a thoughtless act on the spur of the moment.

It is asserted that the same rule is recognized by our supreme court in the quotation herein before made from 170 Cal. 180, [149 Pac. 35, 9 C. C. A. 466], where willful misconduct is described as the deliberate violation of a reasonable 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 Pacific Coast Casualty Company case the young employee was killed in the accident, 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 naturally, from the bare fact of dis