guardian from putting in escrow money in addition to that derived from the new mortgagee, so as to render the sum sufficient for the extinguishment of all existing liens and charges. In fact, it was the duty of the guardian to do this, in view of the understanding between the parties that plaintiff's assignor was to be given a new first mortgage upon the property in consideration of the eleven thousand dollar loan, and the lender had the right to assume that this was done. The lender was not required to go back of the record of the release and see that the money called for by the mortgage was actually applied to the deed of the ward; all that she was obliged to do under the circumstances was to see that there was placed in the hands of or to the credit of the guardian the amount of the ward's mortgage and, having done so, the receipt of the guardian, as such, was a sufficient acknowledgment of the appropriation of that amount to the use of the ward's estate, and thereupon the satisfaction of the mortgage became operative.

The cases relied upon by respondent in support of the point that the release of the mortgage to the ward was void differ from the present case in important particulars. In Aldrich v. Willis, 55 Cal. 81, the party executing the release was not the guardian and, consequently, was wholly unauthorized to represent the minor. In Jennings v. Jennings, 104 Cal. 150, [37 Pac. 794], inasmuch as the ward's mortgage was released several months prior to the execution of the new mortgage and the loan by the subsequent mortgagee was made to the mortgagor and a third party upon their joint promissory note, there is no indication of any relation between such payment and the release of the mortgage to the ward. The mortgage, as appears from the syllabus of that case, was released without any payment whatever. In Martin v. De Ornelas, 139 Cal. 41, [72 Pac. 440], it was, in effect, agreed between the person advancing the money and the guardian that the debt to the ward was not to be paid, but was to be secured by a new mortgage on different property, which was to be substituted for the released mortgage, and, of course, the ward was not bound by this unauthorized change of security, but could elect between the two mortgages.

The view we take of the validity of the release of the two thousand two hundred dollar mortgage renders unneces

sary any consideration of plaintiff's various contentions with regard to its right to subrogation and the legal effectiveness of the ward's mortgage and the assignment thereof to defendant. Likewise it is unnecessary to discuss plaintiff's assignments of error in the admission of evidence.

The judgment of the trial court decreed "that defendant Fidelity and Deposit Company of Maryland is the owner of said mortgage and entitled to enforce the same against said premises for the sum of two thousand five hundred dollars and interest thereon from the sixteenth day of July, 1914. And... that the estate and title of the plaintiff in and to the said premises is subject to the lien of said mortgage to the amount of said sum of two thousand five hundred dollars and interest." [5] The recorded mortgage and the note secured thereby were for the specific sum of two thousand two hundred dollars, and defendant could not, in any event, become entitled to enforce the mortgage for a greater sum than two thousand two hundred dollars with interest, regardless of the amount paid by it under its obligation as surety, and the judgment was, therefore, erroneous in this additional particular.

Since defendant's mortgage does not constitute a valid and subsisting lien upon the premises, the judgment in favor of defendant must be reversed.

Wilbur, J., Olney, J., Shaw, J., Lawlor, J., and Angellotti, C. J., concurred.

[S. F. No. 9319. In Bank.-October 20, 1920.]

E. CLEMENS HORST COMPANY (a Corporation), Petitioner, V. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA et al., Respondents.

[1] WORKMEN'S COMPENSATION ACT-ADDITIONAL COMPENSATION SERIOUS MISCONDUCT OF EMPLOYER- MEANING OF TERM.-Serious misconduct of an employer under section 6 (b) of the Workmen's

1. "Serious and willful misconduct" of employer as affecting recovery under Workmen's Compensation Act, note, Ann. Cas. 1916A, 790.

Compensation Act (Stats. 1917, p. 834), providing for increased compensation where an employee is injured by reason of serious and willful misconduct of the employer, must be taken to mean conduct which the employer either knew, or ought to have known, if he had turned his mind to the matter, to be conduct likely to jeopardize the safety of his employee.

[2] ID. WILLFUL MISCONDUCT OF EMPLOYER

-

MEANING OF TERM.Serious misconduct of an employer is "willful" under section 6 (b) of the Workmen's Compensation Act if it appears that the circumstances surrounding the act of commission or omission are such as evince a reckless disregard for the safety of others and a willingness to inflict the injury complained of, even though the evidence fails to show positively that the employer had knowledge of the

act.

[3] ID. SERIOUS AND WILLFUL MISCONDUCT OF EXECUTIVE OR MANAGING OFFICER OF CORPORATION EMPLOYER-MEANING OF "OFFICER.”— An executive or managing officer of a corporation under section 6 (b) of the Workmen's Compensation Act authorizing increased compensation where an employee is injured by reason of serious and willful misconduct on the part of an executive or managing officer of a corporation is a person in the corporation's employ, either elected or appointed, who is invested with the general conduct and control at a particular place of the business of the corporation.

[4] ID. INJURY FROM UNGUARDED SHAFTING OF CORPORATION PLANTSERIOUS AND WILLFUL MISCONDUCT SUFFICIENCY OF EVIDENCE.An injury received by an employee of a corporation from coming in contact with a rapidly revolving shaft in its vegetable drying plant is an injury caused by the serious and willful misconduct of the employer for which additional compensation is authorized under section 6 (b) of the Workmen's Compensation Act, where the shaft was constructed and maintained in violation of a general safety order of the Industrial Accident Commission, and it cannot be said from the evidence that the commission in making the award did not infer that the managing officer of the plant had knowledge of such violation and of the dangerous condition of the shafting. [5] ID. INCREASED COMPENSATION-CONSTITUTIONALITY OF SECTION OF ACT.-Section 6 (b) of the Workmen's Compensation Act, authorizing increased compensation where an employee is injured by reason of serious and willful misconduct of an employer, is not unconstitutional, since the additional allowance is for additional compensation and not for exemplary damages.

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. Award affirmed.

The facts are stated in the opinion of the court.

Edward C. Harrison, Maurice E. Harrison and Arthur W. Bolton for Petitioner.

A. E. Graupner and Warren H. Pillsbury for Respond

ents.

LAWLOR, J.-This cause is before us on a writ of certiorari issued upon the application of petitioner, E. Clemens Horst Company, a corporation, to review an award made on October 24, 1919, by the respondent Industrial Accident Commission in favor of respondent Mrs. La Verne Hamilton, as compensation for injuries sustained by her on June 7, 1919, while in petitioner's employ. The sum of $8.89, payable weekly in advance, was awarded to her against the Ocean Accident and Guarantee Corporation, petitioner's insurance carrier, as "a temporary total disability indemnity, and one-half of that sum, $4.45, also payable weekly in advance, was awarded her against petitioner as additional compensation by reason of the fact, as found by the commission, that her injuries were occasioned by petitioner's "serious and willful misconduct."

The said insurance carrier is not a party to this proceeding, and the only question presented is as to the validity of the award of additional compensation against the petitioner. The latter's contentions are (1) that section 6 (b) of the Workmen's Compensation Act is unconstitutional, and (2) "that even if this section were valid, there is no evidence of 'serious and willful misconduct . . . on the part of an executive or managing officer' of the petitioner corporation, and that therefore the commission was without jurisdiction to make the award."

At the date of the accident Mrs. Hamilton was employed in petitioner's vegetable drying plant near Wheatland, Yuba County, which had been built about three months before. E. Clemens Horst was petitioner's president and general manager. George E. Miller was general superintendent of petitioner's ranches. It appears that he was not a director or stockholder of petitioner. T. L. Conrad was superintendent of the plant at Wheatland, and was neither a director nor a stockholder of petitioner. When Mrs. Hamilton was injured she was working on a small platform raised about two feet from the floor of the plant. It was her duty to

watch a conveyor belt which passed in front of her, and upon which potatoes were being carried from a peeling-machine to a "slicer" about two feet to her left, and to pick out and pare those potatoes which had not been properly treated by the peeling-machine. Directly over and parallel to the conveyor belt, and about five and one-half feet above the platform on which she was standing, was a rapidly revolving shaft which operated the various machines in the plant. This shaft was protected by a board on the side nearest the employee, but was unprotected below. The accident occurred under these circumstances: About 8 P. M. the mouth of the "slicer" at Mrs. Hamilton's left became clogged. Leaning over the belt and under the shaft, she reached out to clear the potatoes away from the "slicer." In this position her hair was caught by the shaft and pulled from her head, so that she was completely scalped. It is admitted by petitioner that "the accident happened in the course of her employment, and no question is made of her right to recover compensation."

1. We shall first consider petitioner's claim that the finding that the injury was caused by the employer's serious and willful misconduct is not supported by the evidence. Section 6 (b) of the Workmen's Compensation Act (Stats. 1917, p. 834; Deering's General Laws, Consol. Supp. 1917-19, Act 2143c, p. 1392), as it stood at the time of the accident, read in part: "Where the employee is injured by reason of serious and willful misconduct on the part of an executive or managing officer [of a corporation], the amount of compensation otherwise recoverable for injury or death, as hereinafter provided, shall be increased one-half

..

; provided, however, that said increase of award shall in no event exceed twenty-five hundred dollars."

The commission has found on this point: "8. That at the time of said injury, the employer was a corporation, that the employer by its executive and managing officers constructed said plant and placed therein the transmission shafting upon which applicant was injured, parallel to and directly over the belt upon which applicant worked, at a height on a level with her eyes and without any guard or protection on the under side thereof. That applicant's work required her to bend forward with her head beneath said shafting, and it was necessary for her to stoop to do so;