Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n

SEAWELL, J.—[1]

This cause presents a single question: Was the industrial, compensable injury sustained by respondent Leon S. Thompson caused by the serious and wilful misconduct, within the meaning of section 6, subdivision b, of the Workmen’s Compensation Act (Deering’s Gen. Laws, Act 4749, pp. 1710, 1715 et seq.), of his employer, petitioner Patterson-Ballagh Corporation, a corporation? A statement of the case follows:

On October 31, 1928, said respondent Thompson, while performing duties arising out of and in the course of his employment by said corporation, sustained severe injuries to his hand by reason of its contact with a revolving circular saw. Petitioner Pacific Employers Insurance Company, a corporation, the insurer of said employer, assumed liability for the normal benefits due said employee under said act. Upon hearing of the claim before the Industrial Accident Commission, however, that body found that said injury was proximately caused by the serious and wilful misconduct of the employer and it therefore awarded said employee, in addition to a permanent disability of thirty-four per cent, or $2,518.72, the sum of $1259.36, that is, an increased indemnity of fifty per cent to be paid by said employer by reason of its said alleged serious and wilful misconduct. Petitioners thereupon filed their application for writ of review. The main award is not disputed, but by the instant proceeding they seek to have annulled the latter portion thereof imposing said penalty of fifty per cent. Hence, as above stated, the question is whether in the light of the evidence adduced upon the hearing and the provisions of said Workmen’s Compensation Act, which permit the imposition of such a penalty, respondent Commission was warranted in finding said employer guilty of such serious and wilful misconduct as justified them in assessing it. The facts are simple and the evidence is substantially without conflict.

Said employer had been engaged for some months in the manufacture of oil-well specialties made of rubber. Shortly before the accident it undertook to install in its plant for

[414]

the first time power-driven machinery. Mr. Patterson, the president of the corporation, purchased what he considered the best power-driven saw on the market for his purpose— a combined cross-cut and rip-saw, so arranged that when in use the rip-saw cutting edge could be raised to project through a slot in the table, but when not in use it could be lowered below the table surface. When in use it was unguarded and when not in use it was below the level of the stand and- was harmless. Mr. Patterson employed C. N. Dingle, an industrial engineer, to install said motor-power machinery. He had been in the manufacturing business for some months prior to the injury suffered by the employee, Thompson. The saw as delivered was affixed to a stand which was a part of its equipment and was in readiness for action, but the saw proper was unguarded. Mr. Patterson, the employer, was asked the following questions upon the hearing and gave the answers which follow: