Opinion
33483.
DECIDED APRIL 25, 1951.
Appeal; from Tift Superior Court — Judge Forehand. January 13, 1951.
R. D. Smith, for plaintiff in error.
Robert R. Forrester, John T. Ferguson, contra.
( a) Wilful misconduct such as will preclude recovery of compensation by a claimant under Code § 114-105 includes all conscious or intentional violations of definite law or rules of conduct, obedience to which is not discretionary, as distinguished from inadvertent, unconscious or involuntary violations.
( b) As a general rule, mere violations, of instructions, orders, rules, ordinances and statutes and the doing of hazardous acts where the danger is obvious do not, without more, as a matter of law, constitute wilful misconduct. Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty, and will not defeat recovery of compensation.
( c) The evidence here, which was to the effect that a certain rake was a safety appliance to be used in removing particles of meat from a meat cutting machine, was insufficient to show that the claimant whose fingers were amputated by the machine by reason of his failure to use the rake, wilfully failed or refused to use a safety appliance, the evidence disclosing that the claimant was told of the purpose for which the rake was to be used, but there being no evidence that the claimant was warned that the rake in question was a safety appliance.
DECIDED APRIL 25, 1951.
LeRoy Little, an employee of Armour Company, filed a claim with the State Board of Workmen's Compensation for an accident which resulted in the amputation of a portion of three fingers of his right hand. The employer and insurance company defended on the sole ground that the accident was caused from the wilful failure and refusal of the employee to use a safety device, but for which failure the accident would not have occurred. The evidence heard by the director showed that the claimant had been employed for a period of three to four weeks; that, on the first day of his employment, he had been taken by Robert Ozias, a fellow employee and a witness for the employer, to a large room in which there were seven machines of various kinds, one of which was the frozen-meat cutting machine on which the claimant was injured; that Ozias explained to him the workings of each of the machines, instructed him as to the operation of each and the dangers inherent in each, following which tour of inspection he was placed at work on a different type of machine. The meat cutter contained rotating blades hidden from view by a metal shield which could be raised and lowered. When the blades are in motion, a shaft by the side of the machine is also in motion. The machine is noiseless when the power is cut off, but the blades continue turning until their momentum is exhausted. Easily accessible to the operator, is a metal rake which is a safety appliance designed for use in pulling out from the machine any meat scraps which remain within it after it has been used; other pieces fall automatically into a container. Ozias testified positively that, on the employee's first working day, he instructed him at no time to reach into the machine when it was in operation. As to whether or not he instructed him on the use of the metal rake, he testified:
Q. "Was this rake at the machine at the time you discussed this matter and instructed him?"
A. "All pieces of equipment were there at the machine at that time. That was on the first day."
Q. "Did you particularly call his attention to this rake and the purpose of it?"
A. "I am not going to say that I did. I mean at that time that was the first day of employment and I can't truly say right at this minute I particularly picked up that item or any other item. I pointed out various items in the plant that would hurt him."
Q. "Did you point out this rake to him and explain its purpose, what it would be used for?"
A. "As far as that rake is concerned he was introduced to that rake, yes, sir."
Q. "And he was explained the purpose for which it was to be used?"
A. "Yes, sir, dragging the meat off the tray."
It appears from the cross-examination that the witness gave the claimant no instructions as to the use of the machine at any other time. After having been instructed generally in the use of all machines on the floor he was instructed particularly in the use of a stuffing machine and put to work on that. He did use the meat cutter on two or three occasions prior to the time of the accident for a period of three or four minutes on each occasion. At the time of the accident he placed a hundred-pound chunk of frozen meat in the machine and ran it for the two or three minutes necessary to cut the meat; he then walked around the machine carriage and pressed the switch which turned off the mechanism, returned to the front of the machine, raised the hood and reached in with his hand to remove some meat fragments, and at this point his fingers were amputated by a descending blade. The employee denied that the purposes of the rake had ever been explained to him. He further testified that, after he cut off the machine, it was noiseless, and he assumed it was no longer in operation. He also testified that he had worked continuously at the stuffing machine until the time of the accident, with the exception of ten or fifteen minutes during which he had cut blocks of meat on the cutting machine on three occasions, the last being the operation in which he was injured.
The single director before whom the case was tried found against the claimant. The case was appealed directly to the Judge of the Superior Court of Tift County, who reversed and remanded the case. The exception is to this judgment.
The applicable part of Code § 114-105 is as follows: "No compensation shall be allowed for an injury or death due to the employee's wilful misconduct, including . . wilful failure or refusal to use a safety appliance. . . The burden of proof shall be upon him who claims an exemption or forfeiture under this section." In consequence, the burden of providing that Little's failure to use the metal rake to disengage the meat from the machine was a wilful failure and refusal to use a safety appliance is upon the employer. Shiplett v. Moran, 58 Ga. App. 854 (2) ( 200 S.E. 449). Where the question is one of fact, the award will be affirmed if there is any competent evidence to sustain it ( Stapleton v. American Mutual Liability Ins. Co., 74 Ga. App. 86, 91, 38 S.E.2d 848; Berry Bros. Brick Tile Co. v. Holmes, 57 Ga. App. 281 (1), 195 S.E. 223; Austin v. General Accident, Fire Life Assur. Corp., 56 Ga. App. 481, 193 S.E. 86), or if the evidence, construed in its light most favorable to the employer, would authorize the award ( Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111, 114, 197 S.E. 647; Merry Bros v. Holmes, supra). But where the award is based upon an erroneous conclusion drawn from the facts and the law applicable thereto, then it is proper for the judge of the superior court to reverse the award and to enter the proper judgment under the law and the facts of the case. Glens Falls Indemnity Co. v. Clark, 75 Ga. App. 453 ( 43 S.E.2d 752); Hall v. Kendall, 81 Ga. App. 592 (1) ( 59 S.E.2d 421).
The director correctly stated in his opinion the following: "Wilful misconduct includes all conscious or intentional violations of definite law or rules of conduct, obedience to which is not discretionary, as distinguished from inadvertent, unconscious or involuntary violations." See Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (1) ( 150 S.E. 208); Shiplett v. Moran, 58 Ga. App. 854 (1) (supra). He also made a finding that "if the claimant had only exercised reasonable diligence he could have seen whether or not the machine had stopped before he put his hand under the machine to remove the meat," and it appears therefrom that he based his denial of compensation in part at least upon the negligence of the claimant in failing to use reasonable diligence to see whether or not the machine was in operation, thereby violating an instruction to that effect given to him by Ozias. However, "The general rule is that mere violations of instructions, orders, rules, ordinances and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct. . . Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by the employee or his dependents." Aetna Life Ins. Co. v. Carroll, supra. The wilfulness contemplated by the statute amounts to more than a mere act of the will, and carries with it the idea of premeditation, obstinacy and intentional wrongdoing, so that the mere doing of a thoughtless act which does not constitute deliberate disobedience does not deprive one of compensation. See Pullman Co. v. Carter, 61 Ga. App. 543, 545 ( 6 S.E.2d 351). The evidence of Ozias, in its light most favorable to the employer, was that the employee, on the first day of his employment, was taken about a large room and the operation of the seven different machines therein was explained to him; that he was instructed not to stick his hand in the machine while it was in operation, and that the machine could hurt him; that he was further shown the rake and told that its purpose was to pull the meat off the tray. This testimony does not contradict that part of the claimant's testimony to the effect that the rake was never explained to him as a safety appliance, and Ozias himself, although he insisted that the claimant had been "introduced to the rake" would not swear positively that he picked up the rake and explained its purpose to the new employee. At most, then, a favorable construction of the testimony could only create a bare inference that the employee was ever instructed in the use of the rake as a safety appliance. His positive testimony that he never received any instruction concerning its use other than what Ozias might have given him that first morning is uncontradicted, and Ozias' own testimony indicates strongly that he was relying on his recollection of what it was his duty to explain to all new men rather than what he actually did explain to the claimant on the morning in question, which was three or four weeks before the accident. Ozias did give the claimant specific instructions as to the machine he put him to work on. If he could not recollect exactly what he said to Little concerning the other machines, there is more than a strong probability that Little also could not recall all the details in connection with the various appliances on all the machines. Nothing in Ozias' statement refutes Little's positive testimony on this point, except to the extent that he was told that the purpose of the rake was to drag meat off the tray. Further, Little's testimony is uncontradicted that after he went around to the back of the machine and turned it off there was no sound and he was convinced that the machine had stopped before he put his hand under the hood. It is true that the shaft on the outside would have been in motion, but there is no testimony that anyone ever explained to Little that he should observe the shaft and that its motion would indicate that the knives inside the machine were moving. At most, then, the evidence shows only negligence on the part of the employee, and raises no inference whatever that this negligence had in it any element of perversity, obstinacy or intentional wrongdoing. Ozias' testimony that he could not swear to calling Little's attention to the rake, the utter unfamiliarity of the employee with the machine and the fact that he had not used it more than fifteen minutes during the entire month, entirely negative any elements of intentional or premeditated wrongdoing on the employee's part, and there is no evidence to support a finding that the failure to use the meat rake was wilful on his part.
Counsel for the employer strongly rely upon the case of Liberty Mutual Insurance Co. v. Perry, 53 Ga. App. 527 ( 186 S.E. 576), as does the director in his opinion. This is a head note decision, and states in effect, that where a safety appliance is provided and easily accessible to an employee operating a machine, and its location is known to him, and he has received specific instructions not to operate the machine without the use of the appliance, failure to follow these directions constitutes a wilful failure or refusal to use the safety appliance. An examination of the record in that case reveals that the safety appliance concerned was a paddle for removing metal from a die press; that the employee had been working at the machine for four years; that he admitted receiving specific instructions in the use of the paddle and also that the employer had printed instructions on its use pasted on the machine. Not only were the instructions specific and in plain view, but the length of time the employee had worked at the machine, together with his own admissions, negatived the proposition that he did not understand the use and purpose and necessity of the safety appliance. "When the evidence tends equally to sustawin either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Parks v. Maryland Casualty Co., 69 Ga. App. 720, 725 ( 26 S.E.2d 562). In the Perry case the uncontradicted evidence revealed that the employee was thoroughly familiar with the machine and instructions concerning it, from which evidence the director was authorized to find that the failure to use the safety device was wilful. In this case the uncontradicted evidence reveals that the employee was almost wholly unfamiliar with the machine, that any instructions he might have had were received a month previously, in connection with instructions on six other machines, and that these instructions as to the rake in question were not to the effect that it was a safety appliance, but were merely a definition of its purpose. The evidence here does not end equally to sustain either proposition, but wholly sustains the proposition that failure to use the meat rake was due to lack of knowledge of the dangers incident thereto. As to the instruction to the employee not to lift the hood while the machine was in operation, he had turned the machine off and there is no evidence from which it might be inferred that he knew it was continuing to operate.
The trial court did not err in reversing the award of the director denying compensation and in remanding the case for the purpose of entering up an award.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.