Lobdell Car Wheel Co. v. Subielski

Rice, J., delivering the opinion of the court: The question presented by the record is whether or not the claimant (granting that he did not wear goggles at the time of the accident) was guilty of willful failure or refusal to use a safety appliance provided for his protection by the employer. Under the authority of the case of Rudnick v. White Bros., 7 Boyce 576, 109 Atl. 881, the question seems to be a mixed one of law and fact, and the claimant does not otherwise contend. In determining whether or not an injury to an employee has or has not been due to willful misconduct requires that certain principles of law be applied to the facts of the case, and, therefore, the determination, of the question would appear to be a conclusion of law, and the question in its entirety to be a question of both law and fact. If the question presented should be one of fact alone, this court in an appeal from a decision of the Industrial Accident Board would [466] not disturb the finding of the board, if there was sufficient evidence to reasonably support the finding of the board. Benjamin F. Shaw Co. v. Palmatory et al., 7 Boyce 197, 105 Atl. 417; Rudnick v. White Bros., 7 Boyce 576, 109 Atl. 881; Shockley v. King, 1 W. W. Harr. (31 Del.) 606, 117 Atl. 280. Section 3193jj of the Code of 1915, Section 129 of the Delaware Workmen’s Compensation Law of 1917, provides: “If any employee be injured as a result of his intoxication, or because of his deliberate and reckless indifference to danger, or because of his willful intention to bring about the injury or death of himself, or of another, or because of his willful failure or refusal to use a reasonable safety appliance provided for him, or to perform a duty required by statute, he shall not be entitled to recover damages in an action at law, or compensation, or medical or hospital, service under the compensatory provisions of this article. The burden of proof' under the provisions of this section shall be on the defendant employer.” Outside of the question whether the claimant was or was not wearing goggles and the condition of the same at the time of the accident, there is substantially no conflict in the record. The company furnished the goggles for the protection of the employees and issued orders that the employees should wear them while working. The claimant admits that he understood this order and that they were necessary for the protection of his eyes. If he did not wear the goggles, the only explanation offered is his alleged statement that he took them off to rest his eyes, because they were heavy. The cases uniformly hold that willful misconduct is something more than negligence, and that every disregard or violation of a safety rule does not constitute willful misconduct. Under the statute the misconduct must be willful in its nature. Webster defines “willful” to mean: “Governed by the will without yielding to reason; obstinate; perverse; inflexible; stubborn; refractory.” And in Black’s Law Dictionary it is defined as follows: “Proceeding from a conscious motion of the will; intending the result which actually came to pass; designed; intentional; malicious.” And in the case of In re Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790, the court said: [467] “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, * * * deliberate, not merely a thoughtless act on the spur of the moment.” The word “willful” may be defined with a reasonable degree of satisfaction, although the definitions vary in some respects, depending somewhat upon the meaning intended to be conveyed by its use with other words. In the present statute we believe it was used to define an act done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Applying this definition as a test to the facts in the present case, if the claimant was not wearing goggles at the time of the accident, we are of the opinion that he intentionally violated a reasonable order made for his own protection, with full knowledge of the order, and the dangers accompanying its violation, without justifiable excuse for its violation. If he was not wearing goggles, the only reason for not doing so, as shown by the record, is his alleged statement that he wanted to rest his eyes, as they were heavy. The claimant in his testimony states no reason for not wearing them. If the claimant was not wearing goggles, he would be placed in the position of refusing or failing to use a safety appliance furnished him, as ordered by his employer, the claimant understanding the order and knowing that the appliance was furnished for his protection, and also knowing the dangers accompanying a violation of the order, without any explanation or reason on his part why he did not use the goggles at the time of the accident. Such facts would constitute something more than mere negligence, and in our opinion clearly establish willful negligence on his part. Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; In re Burn’s, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787; McAdoo v. Industrial Accident Commission et al., 40 Cal. App. 570, 181 Pac. 400, 4 Workmen’s Compensation Law Journal (1919) 476; Bayshore Laundry Co. v. Industrial Accident Commission, 36 Cal. App. 547, 172 Pac. 1128. [468] The following cases have been cited in behalf of the claimant, but we believe they can readily be distinguished from the present case upon the facts: General Tank Car Corp. v. Borchardt, 69 Ind. App. 580, 122 N. E. 433; Haskell & Barber Car Co. v. K., 69 Ind. App. 545, 119 N. E. 811; In re Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790; Wick et al. v. Gunn et al., 66 Okl. 316, 169 Pac. 1087, 4 A. L. R. 107. If, therefore, the claimant was not wearing the goggles at the time of the accident his conduct was a willful failure on his part to use a reasonable safety appliance provided for him, and that the Industrial Accident Board was in error in finding that his act did not constitute a willful one on his part. Prom the opinion filed by a majority of the Industrial Accident Board, they seem to have been strongly influenced by the fact that the claimant had not refused or failed to use the goggles on all other occasions and that there was not a practice on his part not to wear them. There is no principle of law which requires that an act should be the repetition of a prior act to make it a willful one, or that willful misconduct must be continued misconduct. Under the provisions of the statute the burden is on the employer to show that the failure on the part of the claimant to use a reasonable appliance is a willful act on his part. "While the statute properly and wisely places the burden upon the employer, we know of no reason why a higher degree of proof should be required of the employer in cases before the Industrial Accident Board than is required of other parties in civil actions before other tribunals, to wit, proof of a fact by the preponderance of the evidence and not as declared by the majority of the board: “That the evidence to establish the fact of willfulness must be clear and unequivocal and must approach the point of proof beyond a reasonable doubt.” The question of whether or not the claimant was wearing the goggles at the time of the accident, as well as the question of the condition of such goggles, was not passed upon by the In [469] dustrial Accident Board. Being purely matters of fact, we- cannot pass upon either of these questions until the board has made findings with respect to them. For the reasons above stated the award of the Industrial Accident Board is hereby reversed, and the cause remanded to that board for further proceedings in conformity with this opinion.