218 Mass. 158 | Mass. | 1914
The insurer contends that this injury happened by reason of the employee’s “serious and wilful misconduct,” and so that no compensation can be awarded therefor. St. 1911, c. 751, Part II, § 2. He was employed to do general cleaning, painting and whitewashing. Some of his work had to be done near machinery and shafting, which when in motion would involve danger; and he had been directed to do this work during the noon hours, when the machinery was stopped. At about half past eleven o’clock on the forenoon of the day on which he was injured, the superintendent, in answer to a question from him about work on a wall near the moving shafting, said to him,
“Serious and wilful misconduct” is a very different thing from negligence, or even from gross negligence. Burns’s Case, ante, 3. Johnson v. Marshall, Sons & Co. [1906] A. C. 409. It resembles closely the wanton or reckless misconduct which will render one liable to a trespasser or a bare licensee. See Romana v. Boston Elevated Railway, ante, 76, and the cases there cited on page 83. Its existence under any particular circumstances is usually a question of fact. Leishman v. Dixon, 3 B. W. C. C. 560. George v. Glasgow Coal Co. [1909] A. C. 123. Bist v. London & South Western Railway, 96 L. T. (N. S.) 750.
Here the Industrial Accident Board has found, in accordance with the report of the arbitration committee, that this was not “serious and wilful misconduct”; that “the shafting and machinery were about to stop at any moment, in the mind of this employee, when he could continue to work with absolute safety. His decision to do some whitewashing in this very brief interval seems more like a sudden thought than a wilful act. It seems that it should fairly be regarded as a minor transgression, at most, from his standpoint, and not as serious and wilful misconduct.”
Unless this finding is shown to be unwarranted upon the evidence, it now is conclusive. Donovan’s Case, 217 Mass. 76. Bentley’s Case, 217 Mass. 79. Diaz’s Case, 217 Mass. 36. We cannot say that it was unwarranted. 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 wilful, or, as was said by Lord Loreburn, in Johnson v. Marshall, Sons & Co. [1906] A. C. 409, 411, “ deliberate, not merely a thoughtless act on the spur of the moment.”
So ordered.