Mancini v. Scovill Manufacturing Co.

Wheeleb, C. J. This is a reservation by the Superior Court under General Statutes, § 5383, as amended by the Public Acts of 1919, Chapter 142, § 16, because the court was of opinion that the decision involved principles of law which were not free from reasonable doubt, and which public interest required should be determined by this court, in order that a definite rule be established applicable to future cases. In the view of the Compensation Commissioner, whose finding and award was appealed from, the single legal question involved was “whether the violation of a reasonable safety-rule which had been brought to the attention of the claimant and which was customarily enforced is, under the laws of Connecticut, the equivalent of serious and wilful misconduct.” The Commissioner’s view of the single legal question involved did not limit the field of inquiry of the Superior Court, nor does it limit the scope of our decision upon a reservation by, or an appeal from, the Superior Court. The Superior Court’s ultimate duty on appeal was to decide whether the award was erroneous, and our duty, upon an appeal or reservation of this character, is to make a like determination, and to make it upon the facts as found by the Commissioner. The single question upon this reservation is whether the conclusion of the Commissioner, that there was no wilful and serious misconduct on the part of the plaintiff, was erroneous or not. “A conclusion that certain facts constitute wilful and serious misconduct, is reviewable by this court when the record presents all the facts and the alleged error is properly assigned.” *596 Gonier v. Chase Companies, Inc., 97 Conn. 46, 57, 115 Atl. 677. Primarily this conclusion is one of fact for the Commissioner to make as one of fact, and neither the Superior Court nor this court can on review hold the conclusion of the Commissioner erroneous unless the ' facts clearly show this. The Commissioner has not specifically found this conclusion, but from his memorandum and the pro forma judgment rendered by him it is clear that he reached this conclusion, though with doubt. The Commissioner refers in his memorandum to the fact that the General Assembly adopted the greater part of the recommendations of the Commissioners as made in the first report to the Governor for the year ending September 30th, 1914, but failed to adopt, and has since failed to adopt, their fifteenth recommendation, viz: "Where it shall appear to the Commissioner that ¿ny injury was caused by a failure to observe a reasonable rule of safety, properly brought to the attention of the employee, or by reason of an employee disconnecting or rendering inoperative any safety device, the Commissioner may in his discretion find that the violation of such rule, or the disconnecting or rendering inoperative of such device, amounts to serious and wilful misconduct.” Had this recommendation been made a part of the Compensation Act, any single violation of a safety-rule, or any single act rendering inoperative a safety-device, might, in the discretion of the Commissioner, have been held to be the serious and wilful misconduct of the statute. The act might not have been either ordinary or gross negligence, and might have been heedless, or thoughtless, or a mere error of judgment. It would practically have left to the' uncontrolled discretion of the Commissioner in every case the determination of the issue-of "wilful and serious misconduct.” The failure of the General Assembly to adopt this recommendation is *597 significant of the legislative understanding that this phrase had a far different meaning from that indicated by this recommendation. The legislative understanding probably coincides with the interpretation placed upon this phrase by us from the beginning. We need not add to the discussion of the meaning of this phrase in Gonier v. Chase Companies, Inc., 97 Conn. 46, 115 Atl. 677, save in one particular. Misconduct, as we there say, is wrong or improper conduct, and serious misconduct is wrong or improper conduct of a grave and aggravated character, and this is to be determined from its nature and not from its consequences. The exposure of himself to serious injury would be wrong or improper conduct, if the injured employee appreciated at the time of injury that he was exposing himself to serious injury. Such an exposure by one who had no adequate appreciation of the liability to such injury would not amount to serious misconduct. The exposure by an employee of himself to injury would be misconduct if he knew of and appreciated his liability to injury, and would be serious misconduct if the circumstances indicated that the misconduct, in the light of his knowledge, was of a grave and aggravated character, and that he appreciated this fact. In Gonier v. Chase Companies, Inc., we say, on page 55: “Misconduct which exposed the deceased to serious injury would be serious misconduct.” We should have used “might” for “would” to express the idea of the context. Misconduct which exposed an employee to serious injury might or might not be serious misconduct, depending upon whether the misconduct was of a grave and aggravated character, and whether its character was known to and appreciated by the employee. Wilful misconduct differs from serious misconduct, in that the former may be any kind (of wrong or improper conduct, *598 while the latter must be the.conduct which is not only wrong or improper, but also of a grave and aggravated character. Further, wilful misconduct must be “either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences” to him who is guilty of it. Some authorities hold that the wilful misconduct of this phrase includes within it serious misconduct, and hence serious in this phrase, “wilful and serious misconduct,” does not add to the meaning of wilful misconduct. We think this construction does not do complete justice to the legislative purpose in the use of this language. Unquestionably the authors of our Compensation Act of 1913 had before them the Acts of other jurisdictions where this phrase is used, notably, in Massachusetts, Statutes of 1911, Chapter 751, Part II, § 3. And when the Commissioners recommended in 1915, the limitation of this phrase, to which we have already referred, no doubt the General Assembly had before it Burns’-Case, 218 Mass. 8, 10, 105 N. E. 601, in which the Supreme Judicial Court of Massachusetts had construed this phrase and substantially as we do. When the Commissioner found that the plaintiff at the time of her injury “did intend to and did violate the rule which had been so recently explained to her, that she must have it in mind,” his finding is equivalent to a finding that the plaintiff deliberately violated this reasonable safety-rule, knowing at the time that she was violating the rule, and hence her conduct was wilful within the meaning of this phrase. We think this finding excludes the idea that the act was thoughtless or heedless. And we assume that the Commissioner, in making this finding, had in mind the distinction' between an intentional breach of a.rule with knowledge, and a breach which was the result of thoughtlessness *599 or inadvertence or error of judgment, which we held in Gonier v. Chase Companies, Inc., could not constitute “wilful misconduct.” The intention- to violate the rule must exist at the moment the person injured begins the act which results in injury. Let us see whether the Commissioner has found facts which constitute “serious misconduct.” The plaintiff was instructed in the use of this machine on the afternoon of February 21st, by a physical demonstration of the method of doing the work. So far as appears, serious liability to injury from doing the work by placing the material on and taking it off with the thumb and fingers instead of by the forceps, was not explained to her. Next morning she was found doing the work without using the forceps, and was told in her own language not to use her fingers as she was doing, but to use the forceps. She understood thoroughly what the foreman said to her, and when he left she was using the forceps in her work. No other or further instruction or supervision appears to have been given this Italian workingwoman by the defendant upon this, to her, new work and upon a new machine, and as to work in the doing of which there is very serious danger of injury, unless it be done in the manner directed by this foreman. The special liability to injury was not explained to her; the safety-rule regarding the doing of this work was not explained to her, the reasons for the existence of the rule was not explained to her, the liability of discharge for the violation of the rule was not explained to her, the method and manner in which the experienced workwoman sometimes did this work, by putting the thumb and first finger on the sides of the shell, and the reason that there was less danger doing the work this way than by taking hold of the shell directly with the index-finger on top, was not explained to her, nor was *600 it explained to her that when the employee gets accustomed to the use of the forceps she can do the piece work as rapidly as by the use of the fingers. In short, there was no attempt made to make this employee understand and appreciate the danger of this work, the reason for the use of the forceps, and the fact of the safety-rule and the reason for its «existence. There is no finding that the plaintiff appreciated that the doing of this work in the manner prohibited would expose her to serious injury. There was, so far as appears, no reasonable supervision of the employee to see that she did know and appreciate this danger, and did do the work in the manner directed. . It was improper conduct for her to violate the instruction of the foreman; but it was not necessarily serious misconduct, “that is, conduct of a grave and aggravated character.” That could not be found until it appeared that the plaintiff fully knew and appreciated that her misconduct would expose her to serious injury, and, so knowing and appreciating, did the act in violation of her instruction, from which her injury resulted. There is no finding of this character, and no facts found from which such an inference must necessarily be drawn. Under this finding we cannot hold the conclusion of the Commissioner, that the plaintiff was not guilty of wilful and serious misconduct, to have been erroneous, but rather we must hold that it accords with the construction placed upon this phrase by our decisions. Gonier v. Chase Companies, Inc., 97 Conn. 46, 55, 58, 115 Atl. 677; Kinsman v. Hartford Courant Co., 94 Conn. 156, 160, 108 Atl. 562; Merlino v. Connecticut Quarries Co., 93 Conn. 57, 60, 104 Atl. 396; Hall v. LaCourciere Co., 93 Conn. 1, 3, 104 Atl. 348. The Superior Court is advised to render judgment affirming the pro forma award of the Compensation Commissioner. *601 In this opinion Beach, Cmms and Keeler, Js., concurred.