Hyman Bros. Box & Label Co. v. Industrial Accident Commission

Certiorari to review the award of the-Industrial Accident Commission in favor of Fred Weiss, who was injured by having his hand caught in a printing-press to which he was “feeding” -pieces of pasteboard that were cut by the machinery into proper shape for use in the making of pasteboard boxes.

[1] The injury was suffered by the applicant for compensation in the month of December, 1917, and his rights must be measured by the Workmen’s Compensation Act of 1913, as amended in 1915, which was then in force.

The applicant was twenty years of age at the time of the injury. He had worked for the Hyman Brothers Box & Label Company, generally as- a “press-ffeeder,” three times, his terms of employment aggregating about nineteen months. He had worked for another corporation, also as a press-feeder, for two years and two months. It thus appears that he was an experienced workman almost of the age of'majority.

The press at which Mr. Weiss was working when he was injured was equipped with a stationary upright plate called the “bed” and a -plate called the “platen” which repeatedly opened and closed against the “bed.” In operating the press he stood in front of it, removing the cut pasteboard with his left hand and inserting the uncut sheets with his right hand. Sometimes a -cardboard sheet would slip off the bed of the press and fall into the body of the press, and sometimes some of the uncut pieces would fall into the press from the “feed-board” upon which the operator kept a supply. In such case the press could be stopped at once by moving a lever and the card or cards could be removed without danger. The injury to the applicant occurred while he was reaching into the body of the moving press for a sheet or sheets which

“Q. You knew then that that instruction had been given you and you knew it was not a proper thing to do ? A. Yes.

“Q. Had anybody ever seen you do that before, any of the foremen? A. I don’t know. I couldn’t tell you that.

“Q. You had done it two or three times before? A. Yes, sir.

“Q. And you did it this time? A. Yes, sir.”

At another place in the return to the writ his testimony is reported as follows:

“Q. Mr. Weiss, if you were reaching into that machine to take out loose cards that had fallen in there while the machine was in motion, you were doing something you knew was not exactly proper, weren’t you? A. The loose ones, you mean?

“Q. Yes. A. Yes, sir.

“Q. But nobody had said anything to you in the last year or two about doing that? A. No, sir.

“Q. But when you first came there, as I understand you, you were instructed never to reach into the machine? A. When I first started to learn. That was the first place I fed. I was just starting to learn to feed at that time.

“Q. What did they say to you? A. They told me, ‘You don’t want to put your hand into the machine if any sheets fall down, because you can get more sheets than you can hands. ’

“Q. What would have been the right thing to have done if those sheets had fallen in there ? A. Stop the machine. It didn’t do any harm.and you could still keep running.”

In Ms application to the Industrial Accident Commission for compensation Mr. Weiss- had described the occasion of the injury as follows: “Some sheets of box board dropped from the feedsboard into the press and applicant reached with his

The Industrial Accident Commission found that in attempting to catch the card “the employee acted instinctively without reflection and such1 act did not constitute willful miscondjUCt and that, therefore, said injury was not caused by willful misconduct of the employee. ’ ’ Petitioners attack this finding as contrary to the evidence. This, they say, is the case of an employee who, with full appreciation of the danger, violated specific instructions given him for his -own protection. The question before us, therefore, is whether or not the described actions of the employee amounted to willful misconduct. [2] That an answer to such a problem goes to the jurisdiction of the Industrial Accident Commission is settled by decisions of this court. (Great Western Power Co. v. Pillsbury, 170 Cal. 180 , [ 149 Pac. 35 , 1 I. A. C. 669]; Fidelity and Deposit Co. v. Industrial Accident Com., 171 Cal. 728 , [L. R. A. 1916D, 903, 154 Pac. 834 ].)

The doctrine that an unpremeditated and impulsive act in violation of orders may not be willful misconduct finds some support in the authorities, but usually nonage is an element of the decisions in which such doctrine has been upheld. It seems to us, however, that the age of the person injured does not necessarily make a material difference. The tendency to recover something falling from a machine; to reach for á hat blown off the head by a sudden gust of wind; to apply the brakes to a “skidding” automobile—in short to perform acts of many sorts upon the impulse of the moment, is not the failing of youth alone. The true tests to be applied have reference to the nature of the work being performed and the circumstances of each particular case. This court has been at pains more than once to define “willful misconduct. ’ ’ [3] Perhaps the best definition (and, incidentally, the one cited by both parties to this controversy) is the one found in the opinion in Great Western Power Co. v. Industrial Accident Com., 170 Cal. 180 , 189, [ 149 Pac. 35 , 40]. The court used this language: “Willful misconduct means something more than negligence. It does not include every violation or disregard of a rule. (Casey v. Humphries [1913], 6 B. W. C.

The authorities sustain the views expressed above. In Whitehead v. Reader [1901], 2 K. B. 48, it was held that where a man tried to replace a belt which had slipped from the machinery, such act may be regarded as venial, and not willful misconduct on his part. In McNicholas v. Dawson [1899], 1 Q. B. 773, it was announced that each case must depend upon its own peculiar facts and that the breaking of rules does not necessarily constitute serious misconduct. In Peru Basket Co. v. Kuntz (Ind. App.), 122 N, B. 349, it was held that an employee with defective eyesight, who inadvertently placed his hand contrary to directions in a place' where it was caught by a cutting machine, was not guilty of willful disobedience.

Petitioners have cited many authorities to the effect that where a servant goes outside of the scope of his authority, although still upon the employer’s premises, he may not recover for any injury. Typical of such decisions is Williamson v. Industrial Accident Com., 177 Cal. 715 , [ 171 Pac. 797 ], The facts there disclosed were these: The applicant for compensation had gratuitously undertaken to clean a light well. She was injured while performing this task, but it was held that as she was not engaged to do that sort of work she was not entitled to compensation for her injuries. Undoubtedly that and similar authorities announce a correct rule, but one having no application to the facts now before us. Not one of them .involves the conduct of an employee confronted with a sudden and unexpected situation furnishing almost irresistible occasion for impulsive action.

Petitioners’ only other objection is to the amount of the award which, it is asserted, was.in excess of that which the commission was empowered-to give. With this view we agree.

Section 17c of the Workmen’s Compensation Act is in its essential parts as follows: “If the injured employee is under twenty-one years of age ... his average weekly earnings shall ‘be deemed ... to be the weekly sum, that under ordinary circumstances he would probably be able to earn after attaining the age of twenty-one years, in the occupation in which he was employed at the time of the injury, or the occupation to which he would reasonably have been promoted,

[5] With this view of the law we cannot agree. The infirmity of the rule must be apparent when we remember that there is no rule by which the exact difference between “boy’s wages ’ ’ and ‘‘man’s wages ” may be computed. This applicant was in his twenty-first year at the time of the injury. Under the statute quoted above the commission was bound to find his probable earnings at the age of twenty-one years. Such an interpretation of the word “after” is fully in accord with sound reason and authority. For example, bequests to take effect “after death,” vest at death. (In re Swinburne, 16 R. I. 208 , [ 14 Atl. 850 ]; Downing v. Wherrin, 19 N. H. 9 , [ 49 Am. Dec. 139 ]; Atwell’s Exrs. v. Barney, Dud. (Ga.) 207.) In 2 C. J. 395, among the definitions of “after” given are “as soon as; at or immediately after; on; simultaneously; upon. ’ ’ That the framers of the Compensation Act intended the word “after” to mean “at” is obvious when we have in mind that different parts of a statute are to be so construed as to make them consistent and harmonious, giving proper effect to each of them. If the young man had been twenty-one years and one day old when he was injured, the commission would have been under the necessity of fixing his compensation in accordance with his wages at that time. To hold that because he was a few months under the age of twenty-one a much more flexible rule should apply would be an interpretation of the statute in a manner out of harmony with the part having reference to adults. Therefore, we must hold that the Industrial Accident Commission had no power to compute the compensation upon the basis of probable wages which the applicant might obtain long after reaching the age of twenty-one years.

The award is annulled and the matter is remanded to the Industrial Accident Commission to the end that such proceed

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