Church, Etc. v. Indus. Acc. Com.

Petitioner was the employer of one Barnes, who claimed compensation for injuries received, arising out of and in the course of his employment. The principal award, which runs against the employer's insurance carrier, is not questioned here. But the claimant was awarded additional compensation against the employer, upon the ground that the injury was caused by reason of serious and wilful misconduct of the employer. Petitioner *Page 183 contends that the Commission exceeded its jurisdiction, in the rendition of said award of additional compensation; and particularly, that the evidence did not justify or support the finding of fact that the employee was injured by reason of serious and wilful misconduct of the employer, on the part of an executive or managing officer or general superintendent thereof.

Petitioner, as owner, entered into a contract with Nowell, as architect and contractor, for the construction of a church building. Nowell was to receive a fee of three per cent on the cost of the building. He agreed to construct the house, and to supervise the entire work. In the transactions with Nowell, the Church was represented by the bishop and by one Jensen, chairman of the finance committee of the Church.

If the accident and resulting injury to Barnes were caused by misconduct of anyone, the misconduct was that of one Taylor, who occupied a position in relation to the work, of such description that at least he was foreman in charge of the work in which Barnes was occupied at the time of the accident. Barnes was hired by Taylor. It does not appear whether Taylor's contract of employment came to him through Nowell or through some officer of the Church.

The evidence produced before the Commission is not here, and is not set out in the petition. For the purpose of deciding upon the application for the writ, we assume that the evidence is as stated by counsel for petitioner, together with the supplemental statements of evidence as contained in the answer presented by counsel for respondent Commission.

The provisions of law allowing an increase of compensation, in case of "serious and wilful misconduct" of the employer, are directed against such misconduct on the part of "the employer, or his managing representative," etc., "or if a corporation, on the part of an executive or managing officer or general superintendent thereof." (Workmen's Compensation, Insurance and Safety Act of 1917, sec. 6 (b) [Stats. 1917, p. 834].)

There are, therefore, two propositions upon which petitioner must depend. First, that the evidence is not sufficient to warrant the Commission in finding that Taylor was *Page 184 a "general superintendent" of the corporation, within the meaning of those words as found in the statute. Second, if Taylor was such general superintendent, that the evidence is likewise not sufficient to prove that he was guilty of wilful and serious misconduct.