Jenkins v. Carman Mfc. Co., 155 P. 703

Jenkins v. Carman Mfc. Co.

155 P. 703

Or.

1916

Check Treatment

Mr. Justice McBride

delivered the opinion of the court.

1, 2. Plаintiff, having chosen to take advantage of the Workmen’s Compensation Act, cannot recover, unless he brings himself within one of the exceptions mentioned therein. Thе exceptions here to be noted are Sections 22 and 25 of the act, which constitute Chapter 112 of the Laws of 1913. They provide:

“Sec. 22. If injury or death results to a workmаn from the deliberate intention of the workman himself to produce such injury or death, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍neither the workman nor the widow, widower, child or dependent of the workman shall receive any payment whatsoever out of *452the accident fund. If injury or death results to a wоrkman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman shall have the privilеge to take under this act, and also have cause of action against the employer, as if this act had not been passed, for damages over the amount payable hereunder. * * ”

“Sec. 25. If any workman shall sustain an injury which the commission shall determine to have been caused in whole or in part by the failure of his employer to instаll or maintain any safety appliance, device or safeguard required by statutе, such workman, or, if such injury result in death, then the husband, wife, child or dependent of such workman, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍shall have the same rights against such employer as in the case of an employеr defaulting in payments due hereunder, and all of the provisions of the preceding section shall apply with respect to such claim: Provided, in case the workman or his beneficiary proceeds against the employer he shall have no claim against the accident fund.”

Plaintiff having alleged that he has elected to apрly to the Industrial Accident Commission for compensation cannot bring an action under the Employers ’ Act, unless he shows by his pleading and proof that the Industrial Accident Commission has determined that the injury was caused in whole or in part by the failure of the emplоyer to install and maintain the safety appliances required by that act.

3. As to the right of recovery under the twenty-second section, the allegations are somewhat argumentative and inconsistent; but taken as a whole and fairly construed they amount tо this: That defendant knew the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍roll was broken and a menace and danger to workmen, аnd knowing this fact carelessly, recklessly and negligently failed to repair it, and required its wоrkmen to labor in its vicinity in its defective condi*453tion, deliberately intending to risk the danger of an injury. The deliberate intent follows as a deduction from the allegation of knowledgе of the danger and the carelessness, negligence, and recklessness of defendant in not obviating it. In our opinion the allegation goes no further than to charge that defendant with full’ knowledge of the defect carelessly, negligently, and recklessly took the risk of its injuring the plaintiff. If defendant deliberately intended to wound plaintiff or his fellow-workmen and intentionally used this broken roll as he would have used an ax or a club to produсe the intended injury, it is liable; otherwise it is not. A deliberate act is one the consequеnces of which are weighed in the mind beforehand. It is prolonged premeditation, аnd the word when used in connection with an injury to another denotes design and malignity of heаrt. It has been defined so many times that it is difficult to select any one definition which covеrs every phase in which the word is used, but some of the most apt are:

“The word ‘deliberаte’ is derived from two Latin words, which mean, literally, ‘concerning,’ and ‘to weigh.’ * * As an adjeсtive * * it means that the manner of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the performance was determined upon aftеr examination and reflection — that the consequences, chances and mеans weighed, carefully considered and estimated”: Craft v. State, 3 Kan. 451.

“Deliberation is prolonged premeditation”: State v. Speyer, 207 Mo. 540 (106 S. W. 505, 14 L. R. A. (N. S.) 836).

“Deliberation is that act of the mind which examines and considers whether a contemplated act should or should not be done”: United States v. Kie, 26 Fed. Cas. 781.

We think by the words “deliberate intention to produce the injury” that the lawmakers ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍meant to imply that the employer must have determined to injure an *454employee and used some means appropriate to that end; that there mnst be a specific intent, and not merely carelessness or negligence, however gross.

The judgment is affirmed. Affirmed.

Me. Justice Eakin took no part in tbe consideration of this case.