XXXIV. "Serious or wilful miscon duct" of employee. As to the effect of serious and wilful misconduct of workman under the English act, see ante, 75. By the express terms of most of the American statutes no compensation is recoverable for injuries caused by the "serious and wilful misconduct" of the employee. This phrase means something court that the death of a workman arose out of and in the course of his employment | where there was evidence that he was employed by an ice company to watch its pond and to prevent all persons from cutting holes and fishing through the ice, and was not directed as to how he should perform that duty or at what place on the pond or its shores he should station himself, and that during the time in which he was there on duty, and while he was alone in the center of the pond, the ice on which he was walking broke, and he was precipitated into the water and drowned. Jillson v. Ross (1915) - R. I. 94 Atl. 717. The death of an employee who, prior to his injury, was shown to be a seemingly strong and healthy man, and who was burned on his hands and face by an explosion of gas, and subsequently complained of pains in his throat and chest, and was in a run-down condition, and died about four months after his injury of miliary tuberculosis, may be found to have been proximately caused by the gas explosion, where there was expert testimony to the effect that the inhalation of the gas fumes would furnish an opportunity, if the infection of the disease existed in a latent condition at the time, for the latent condition to be kindled into an active condition; and that if the infection was not existent, the inhalation of gas would bring about the destruction of air cells in the lungs, and would lower his vitality, and make the person more susceptible to such infection; and that the usual time for the course of miliary tuberculosis was from four to six weeks, but that it might continue for a period of three or four months. Heileman Brewing Co. v. Schultz (1915) - Wis., 152 N. W. 446. more than mere negligence, 25 or even gross negligence.26 It involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.27 "Serious and wilful misconduct" does not include every violation of a rule or Where the deceased workman was employed as night janitor and watchman by a bank, his duties being, among other things, to clean ink wells and cuspidors, and make rounds of the building, and it appeared that he was at the bank on duty on the night in question, the testimony of another employee that the deceased appeared before him sucking his thumb, and made the statement that he had pricked it, is competent evidence as part of the res gestæ where it also appeared from the evidence that it was the deceased's custom to suck any part injured immediately upon receiving any injury, and that he was in perfect condition when he entered the bank that night. First Nat. Bank v. Industrial Commission (1915) Wis. 19 154 N. W. 847. 25 Great Western Power Co. v. Pillsbury (1915) Cal., 149 Pac. 35. The act of a carpenter, in attempting to descend from the roof of a building on which he is working by means of a loose rope, one end of which is held in the hands of a fellow workman, instead of using a ladder provided for such purposes, is not intentional and wilful misconduct. Clem v. Chalmers Motor Co. (1914) 178 Mich. 340, post, 352, 144 N. W. 848, 4 N. C. C. A. 876. 26 "Serious and wilful misconduct" is a very different thing from negligence, or even from gross negligence; it resembles closely the wanton or reckless misconduct which will render one liable to a trespasser or a bare licensee. Burns's Case (1914) 218 Mass. 8, 105 N. E. 601, 5 N. C. C. A. 635; Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, 5 N. C. C. A. 645. An employee engaged in checking automobiles as they were placed on a car, who was injured while attempting to cross Where there is evidence to support the through a standing train without stopping inference that the deceased workman, who to see where the trainmen were, and withwas found on a Sunday night fatally in- out knowing but what they were signaling jured, on the basement floor underneath the train to back up or go ahead, is not, a hole which had been cut in the first floor as a matter of law, guilty of intentioral of the building, usually went to the part and wilful misconduct within the meaning of the building where he fell unon Sunday of the Michigan act. Gignac v. Studebaker evening, and that at times on Sunday even- Corp. (1915) Mich. 152 N. W. 1037. ing he performed services in any part of The court said: "While it is quite clear the building, the award of the Industrial that the claimant's injury was brought Commission, based upon the conclusion of about by his own gross negligence, we are fact that the deceased accidentally sus of opinion that it cannot be said, as a mattained a personal injury which caused hister of law, that he was guilty of such intendeath, and that it was incidental to his employment, will not be disturbed. Heileman Brewing Co. v. Shaw (1915) - Wis. 154 N. W. 631. tional and wilful misconduct as would defeat his recovery." 27 Burns's Case (Mass.) supra. of express orders.28 But it has been | ployed, where the work was necessary said that "it cannot be doubted that a and all fair-minded men would not agree workman who violates a reasonable rule that the risk of injury was so apparent made for his own protection from se- that the ordinary man would not have rious bodily injury or death is guilty of encountered it.33 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 wilful misconduct." 29 Suicide has been spoken of as wilful misconduct.30 Where an employee adopts the customary way of operating a machine, he cannot be held to be guilty of contributory negligence as a matter of law, which defense was left open to the employer under the Wisconsin act of 1911.31 The refusal of an injured workman, a foreigner, unable to speak or understand the English language, and suffering great pain, to submit to a serious operation, until fifteen or sixteen hours after it was first found necessary, does not amount to the intentional | and wilful misconduct which will defeat a right to compensation.32 An employee is not negligent, as a matter of law, in going onto a wet and slippery walk to clear the debris from the rack protecting the flume leading water from the dam to the mill in which he is em 28 Great Western Power Co. v. Pillsbury (1915) Cal. 149 Pac. 35. The act of a painter in working near machinery while it was in motion, after he had been told not to, may be found not to be serious and wilful misconduct where he was justified in believing that the machinery would stop at any moment. Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, 5 N. C. C. A. 645. The New Jersey statute makes no exemption because of the wilful negligence on the part of the workman.34 35 The existence of "serious and wilful misconduct" under any particular eircumstances is usually a question of fact.3 But it has been held that inasmuch as no compensation can be awarded to a workman whose injuries were caused by his own wilful misconduct, a question whether the accident was caused by the "wilful misconduct of the employee" is one that goes to the jurisdiction of the Industrial Board, and is therefore open to inquiry by the court on certiorari.36 XXXV. Notice of injury; “actual knowledge" of employer. As to notice of injury under the English act, see ante, 83. Some of the statutes require that notice of the injury shall be given to the employer after the accident, or that the employer shall, in some way, have actual knowledge of the injury. These provisions have not received much attention in the court. 32 Jendrus v. Detroit Steel Products Co. (1913) 178 Mich. 265, post, 381, 144 N. W. 563, Ann. Cas. 1915D, 476, 4 N. C. C. A. 864. .33 Boody v. K. & C. Mfg. Co. (1914) 77 N. H. 208, ante, 10, 90 Atl. 859, Ann. Cas. 1914D, 1280. 34 West Jersey Trust Co. v. Philadelphia & R. R. Co. (1915) N. J. L., 95 Atl. 753. Under § 2 of the New Jersey act of 1911, the employer is exempted from liability for compensation only when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of the injury; there is no exemption because of wilful negligence on the part of the workman. Taylor v. Seabrook (1915) N. J. L., 94 Atl. 399. 29 In Great Western Power Co. v. Pillsbury (1915) Cal. 149 Pac. 35, it was held that the failure of an experienced lineman, in working about live wires, to use rubber gloves, as the rules of the employer required, and as he had been recently directed by his foreman to do, which gloves were furnished by the employer, and were at hand, constitutes wilful misconduct justifying an annulment by the court of an award by the Industrial Commission of compensation to the lineman's dependents. Angellotti, Ch. J., dissented from the judg-workmen's compensation act, that although ment annulling the award upon the ground that he did not think that the court should hold that the evidence compelled the conclusion as a matter of law that the death of the deceased was caused by his own "wilful misconduct." 30 Milwaukee Western Fuel Co. v. Industrial Commission (1915) 159 Wis. 635, 150 N. W. 998. 31 Besnys v. Herman Zohrlaut Leather Co. (1914) 157 Wis. 203, 147 N. W. 37, 5 N. C. C. A. 282. 35 Nickerson's Case (1914) 218 Mass. 158, 105 N. E. 604, 5 N. C. C. A. 645. A finding by the Commission, under the an injury to an employee was due to his Where the employer has actual knowl- | bound to make the payments which the edge of the happening of the accident, employee or his representative was enand of the resulting injury, the giving of titled to receive from the original emnotice thereof is not necessary; 37 and ployer, during the time he conducts the the employer may by his conduct waive business.42 the failure of the plaintiff to make a claim within the time specified in the statute, or at any time prior to the time when the notice was given.38 The actual knowledge on the part of the employer of the occurrence of the injury, required by 15 of the workmen's compensation act of 1911, means, in the case of a corporation, knowledge of a proper corporate agent.39 The knowledge of a mayor of a city is the knowledge of the city.39a The court has jurisdiction of all proceedings arising under the act, and the making of a demand upon the employer for compensation is not a condition precedent to the power of the court to entertain such proceedings.40 Municipalities may be employers within the meaning of the Illinois act." 43a The Michigan statute is compulsory as to the state, each county, city, township, incorporated village, and school district; but the state boards do not come within this provision.43 Where the owner of a horse and cart loaned them, together with a driver, to a city for use in cleaning sweepings from the street, but retained control of the horse so far as feeding, watering, and care of it was concerned, the driver, while taking the horse to water during the noon hour, is in the employment of the owner of the horse, and not of the city.44 In the former part of this annotation, The provisions of the act of 1913, re- dealing with the English decisions, it quiring all claims of compensation to was stated that the question frequently be filed within one year after the ac- arising in common-law cases, namely, cident, does not apply to a claim for which of two persons is the master of a compensation arising under the act of third who is admittedly a servant of one 1911.41 of them, was to be decided by commonlaw rules, and not by rules peculiar to the compensation act. This statement, however, does not apply to all of the American statutes. XXXVI. Who are "employers." For English decisions defining this term, see ante, 113. A receiver who is conducting the business of the original employer during insolvency is by the terms of the statute 37 State ex rel. Duluth Diamond Drilling Co. v. District Ct. (1915) 129 Minn. 423, 152 N. W. 838. 38 In a case in which the defendant employer and its officers knew the circumstances and extent of the injury, and the plaintiff was treated by defendant's physician, and there were admissions of liability and offers to confess judgment, as well as motions that judgment be awarded in favor of the plaintiff and against defendant for a limited sum, provided it was awarded in the form of periodical payments, the defendant will be deemed to have waived the failure of the plaintiff to make the claim within a specified time, or at a time earlier than it was made. Roberts V. Charles Wolff Packing Co. (1915) 95 Kan. 723, 149 Pac. 413. 39 Actual knowledge on the part of the director of streets and public improvements of a city of an injury to an employee on street work is sufficient to satisfy the requirements of § 15 of New Jersey act of 1911, which provides that the employer shall have actual knowledge of the occurrence of the injury; and where the director of streets and public improvements of a city was notifled by one of his drivers of an injury to an employee engaged in street work, and the director went to see how badly the employee was injured, and took him his 39a State ex rel. Northfield v. District Ct. (1915) Minn. - 155 N. W. 103. 40 State ex rel. Duluth Diamond Drilling Co. v. District Ct. (1915) 129 Minn. 423, 152 N. W. 838. 41 Baur v. Court of Common Pleas (1915). N. J. L. 95 Atl. 627. 42 Wood v. Camden Iron Works (1915) 221 Fed. 1010. em 43 The state board of agriculture is not. brought within the act by virtue of part 1, § 5, subd. 1, which provides that the state is an employer within the meaning of the Michigan act; consequently an employee of the agricultural college, who was ployed by such state board of agriculture, is not within the act, where such state board has not elected to come within the provisions thereof. Agler v. Michigan Agri. College (1914) 181 Mich. 559, 148 N. W. 341, 5 N. C. C. A. 897. 43a Brown v. Decatur (1914) 188 Ill. App. 147. 44 Pigeon's Case (1913) 216 Mass. 51, 102. N. E. 932, Ann. Cas. 1915A, 737, 4 N. C. C. A. 516. XXXVII. Who are "employees." For English decisions defining this term, see ante, 115. a. In general. with the servant whereby the latter en-causal connection between the misrepgages to work for the former, and he on resentation and the contract, or where his part engages to pay the servant for such false representation in no way consuch work.45 tributed to the injury. Thus, a misrepresentation as to the name and age of the employee, made at the time of entering the employment, does not, in the absence of any proof that the employer was induced to enter into the contract upon such misrepresentation, constitute such a fraud that it will operate to relieve him from the statutory obligation to make compensation in a case arising under the statute, especially where it does not appear that there was any causal connection between the misrepresentation and the contract.48 a conductor upon an electric street surface car was an employee of the company so as to be within the protection of the New York statute, although he had secured employment by making false affidavits as to whether he was married or single, and as to whether he had ever been employed by another railroad company, where such false representations in no way related to or contributed to the cause of his death.49 There can be no recovery of compensation in the absence of a contract of employment between the injured person and the alleged employer.46 The relation of employer and employee did not exist at the time of the injury where, when the plaintiff went to the city office of the defendant's logging railroad company, and was directed by the person in charge to go to a certain place near its logging camp, and when he had arrived there he went to the defendant's logging train, and was there directed by the engineer to place his baggage upon the pilot of the engine and to get aboard, and rode upon the pilot to the logging camp, and within a very brief period of time after his arrival the accident occurred, and he had not reported it to the foreman, or to anyone in charge, was not upon the defendant's pay roll, and had never done any work or received any compensation from the defendant.47 Misrepresentation made by an employee at the time of entering the employment, for the purpose of securing the employment, will not necessarily prevent his recovering compensation for injuries received while in the employment, particularly where there is no 45 A person who makes a contract with contracting teamsters for the supply of a team consisting of horses, wagon, and a driver, for which as a team he pays the teamsters, is not the "employer" of the driver within the meaning of the Ne Jersey act, where he had no direct dealings with the driver, and had nothing to say on the question of how much wages the driver should be paid. Rongo v. R. Waddington & Sons (1915) N. J. L. 94 Atl. 408. 46 No contract of employment can be inferred between a father and his son thirteen years of age, where when the boy went to work, there was nothing at all said about the wages, and the boy was injured a short time after he began to work, and before any wages had in fact been paid to him. Hillestad V. Industrial Ins. Commission (1914) 80 Wash. 426, 141 Pac. 913, 6 N. C. C. A. 763. 47 Susznik v. Alger Logging Co. (1915) Or., 147 Pac. 922. In this case the appellate court held that the defendants suffered no substantial wrong by reason of the trial court's action in striking out the And Ordinarily there can be no recovery of compensation for injuries to a minor where he is employed in an occupation prohibited by law.50 But under the Wisconsin statute, "minors who are legally permitted to work under the laws of the state" are embraced within the act, and cannot maintain actions for damages, although at the time of the injury they are doing work not permitted by law.51 Farm laborers are expressly excluded from the provisions of the Massachusetts act.52 defendants' first affirmative defense relating 48 Havey v. Erie R. Co. (1915) · N. J. L. 49 Kenny v. Union R. Co. (1915) 166 App. Div. 497, 152 N. Y. Supp. 117, 8 N. C. C. A. 986. 50 Floating bolts to a mill is a department or a part of the manufacturing of shingles; and there can be no compensation recovered for injury to a boy employed at that work in violation of the statute forbidding the employment of minors under a certain age, in any factory, mill, workshop, or store. Hillestad v. Industrial Ins. Commission (1914) 80 Wash. 426, 141 Pac. 913, 6 N. C. C. A. 763. 51 Foth v. Macomber & W. Rope Co. (1915) Wis., 154 N. W. 369. 52 A man employed on a farm who does all kinds of farm work is a "farm laborer" within the meaning of the statute, and he is not within the protection of the act, although the farmer who employs him may carry on other business. Keaney's Case A policeman who is an appointed offi- | ery, or plant for doing the work, without cer and is required to take an official the control, co-operation, assistance, or oath of office is not an "employee" within the meaning of the Michigan act, but is an "official" of a city, and is not within the protection of the act.5 53 The Wisconsin statute applies to all employees of a railroad, and not merely such employees as are engaged in shops or offices.54 The wording of the statute is somewhat ambiguous, and there has been a general belief, especially on the part of laymen, that the act was applicable only to such employees of a railroad company as worked in shops or offices. b. Independent contractors. Employees occupying the position of independent contractors are not embraced within the provisions of the comsation acts generally.55 Whether or not a workman is an employee or an independent contractor will be determined by the rule which would be applicable had the case arisen in an ordinary action at law.56 interference of the owners, is not entitled to compensation for injuries, from the owner.5 Employees of independent contractors have, however, been held to be under the protection of the Massachusetts act.58 c. "Casual" employees. For English cases defining this term, see ante, 120. The English statute provides that the word "workman," within the meaning of the statute, does not include persons "whose employment is of a casual nature, and who are employed otherwise than for the purposes of the employer's trade or business." Provisions of similar import are to be found in most of the American statutes, but the language used in some of the statutes is susceptible of a different construction. The Massachusetts statute does not apply where the employee's employment "is but casual, or is not in the usual course" of the trade or occupation of the employer. An employee of an independent con- The distinction between the two acts has tractor intrusted with the entire work been noted by the Massachusetts suof furnishing the ways, works, machin-preme judicial court.59 The court held, (1914) 217 Mass. 5, 104 N. E. 438, 4 N. C. (1914) C. A. 556. 54 Minneapolis, St. P. & S. Ste. M. R. Co. v. Industrial Commission (1913) 153 Wis. 552, 141 N. W. 1119, Ann. Cas. 1914D, 655, 3 N. C. C. A. 707. 55 Independent contractors are not within the provisions of the New York act. Powley v. Vivian & Co. (1915) 169 App. Div. 170, 154 N. Y. Supp. 426; Rheinwald v. Builders' Brick & Supply Co. (1915) 168 App. Div. 425, 153 N. Y. Supp. 598. 56 An employee of a timber company may be found to be a workman within the meaning of the Minnesota statute although he was paid at a specified price per piece, and could work as much or as little as he wished, could lay off whenever and as long as he chose, could work as many or as few hours a day as he saw fit, could proceed in his own way so far as his method of working was concerned, and could quit finally whenever he elected to do so, and was assigned a specific tract of land upon which to work, where the company required him to cut the timber clean as he went, and reserved the right to control and supervise his work at least to the extent necessary to prevent waste and loss, and inspected his work from time to time, and occasionally directed him to remedy the defects therein, and had the right to discharge him at any time. State ex rel. Virginia & R. Lake Co. v. District Ct. (1914) 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076. 57 Kennedy v. David Kaufman & Sons Co. N. J. L. -, 91 Atl. 99. The court said: "What the plaintiff claims is that in all cases where the entire work is left to an independent contractor, the employer is liable for defects in ways, works, machinery, or plant belonging to or furnished by such independent contractor. This is not the proper construction of the statute, but, on the contrary, the employer is only liable where he furnishes the ways, works, machinery, or plant in aid of part. execution of his work, and does not make him liable where the entire work is left to an independent contractor who furnishes the ways, works, machinery, or plant, over whose negligent conduct in not remedying defects the employer has no control." 58 An employee of an independent contractor is entitled to compensation from the insurer of the principal employer for injuries received under circumstances which would have made the insurer liable had the employee been in the immediate employment of the principal employer, although the independent contractor carried no insurance. Sundine's Case (1914) 218 Mass. 1, post, 318, 105 N. E. 433, 5 N. C. C. A. 616. 59 Gaynor's Case (1914) 217 Mass. 86, post, 363, 104 N. E. 339, 4 N. C. C. A. 502, the court said: "Manifestly its effect is to narrow the scope of our act as compared with the English act. No one whose employment is 'casual' can recover here, while there one whose employment is of a casual nature' comes within the act, provided it is also for the purpose of the employer's trade or business. It is possible that a distinc |