what circumstances may have prevented the loading or discharge, in the other demurrage is not due if the loading or discharge was accomplished as early as practicable, taking into account the circumstances of the case. Thus if a strike prevented discharge that would be a good enough excuse under the latter bill of lading, but it would be utterly irrelevant to plead such an excuse if the bill of lading stated a specific time for discharging. In a recent case a ship was carrying a cargo of pit props from St. Petersburg to Granton. In ordinary circumstances they would have discharged in about five days, but owing to a strike among the workmen in the charterers' woodyard the vessel was delayed a very considerable time. The charter party did not specify any lay days, and therefore the ship fell to be discharged in a reasonable time, taking into account the whole circumstances. The shipowners claimed that she had not been so discharged and sued for damages. The defense was that the strike referred to had rendered discharge of the cargo with ordinary dispatch impossible, but the court held that this defense was too remote, for a strike of woodyard workers was not a strike of workmen necessary to the discharge of the cargo, as a strike of say dock laborers would have been, and so was not a risk which should fall on the ship owners.

The same principle of distinction between the two kinds of bills of lading was up in another recent case. Goods carried under a bill of lading, which provided that the cargo should be discharged as fast as the steamer could deliver, were placed in a hold underneath the goods of another consignee and delay in discharging was due to the delay of the upper consignee in taking delivery. Now had the obligation in the bill of lading been to discharge within a certain specified number of days, the lower consignee would be liable in damage after the specified days were expired, but the court held that that rule did not apply where, as in the case of this bill of lading, the obligation of the consignee to discharge was not limited to a definite time, but was allowed to be controlled by the circumstances, and they held that the fact that the cargo being in the lower hold and the delay of the upper consignee, both of which facts were not the fault of the lower consignee were circumstances which excused his delay in discharging and exempted him from damages in respect of such delay.

DONALD MacKAY.
Glasgow, Scotland, May, 1914.

THE DEFENSE OF "SERIOUS AND WILFUL MISCONDUCT," UNDER THE WORKMEN'S COMPENSATION LAWS.

The Workmen's Compensation statutes of a number of the states and of England provide that a workman injured in his employment cannot recover therefor if the injury was due to his own serious and wilful misconduct. The English statute, however, withholds this defense where the injury results in serious and permanent disablement or death of the workman.1

Serious and Wilful Misconduct Defined. -The word "serious" refers to the conduct, not to the results of the conduct, and the misconduct of a workman is not necessarily serious because it results in serious consequences. It has been held, however, that any neglect is serious which, in view of reasonable persons in a position to judge, exposes anybody, including the person guilty of it, to the risk of serious injury.

The word is descriptive of the kind of misconduct necessary to bar compensation. Hence, we know that it is not every act of misconduct that constitutes a bar to recovery. If a servant should leave his place of employment by way of the office door instead of the exit maintained for employes, in violation of a rule of his employer, the act would be misconduct, but not serious misconduct.

It may be contended that, on account of the necessity for strict discipline among employes engaged in establishments where machinery is used, and the grave danger attendant upon a general laxity of discipline. that violation of any rule is serious. If such a contention were true it would render the word "serious," as used in the statutes, mere surplusage. The word must be taken to have a meaning, and it must be given full weight. It is very evident that the legislatures did not intend that the

St. 6 Edw. 7, c. 58, sec. 1 (c).

(1) (2) Hill v. Granby Consolidated Mines, 12 Br. Col. 118, 1 Butterworth's W. C. Cas. 436.

workman should be deprived of compensation merely because a breach of some trivial rule attended the accident.

“Indeed,” said Lord Atkinson, in Johnson v. Marshall, Sons & Co., "if the word 'serious' used in this connection is to have any force or weight given to it at all, it must, I think, mean at least that where the risk of loss or injury resulting to any person or thing from the doing of any particular act is very remote, or where that loss or injury, even if probable, would be trivial in its nature and character, the doing of that act, however wilful, does not amount to 'serious misconduct' within the meaning of this statute, sufficient to deprive an injured workman of the benefits conferred upon him by the statute, unless the indirect influence of the act upon the discipline of the factory is to make every transgression serious."

"Serious" and "wilful" do not refer to conduct, but to "misconduct." In the first place, there must be misconduct; then it must be wilful, and finally, it must be serious. Conduct may often be wilful and its consequences serious, but not amount to misconduct. "Misconduct" means wrong conduct.

"Wilful" means by one's own volition or will; intentional. It imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment.1 It is not enough that the act is wiiful; it must be done by the workman with the intention or knowledge of being guilty of misconduct," "Wilful" must be considered with the word "misconduct." Nearly all conduct is wilful, that is, intentional, and the same act may constitute intentional or wilful conduct and amount to misconduct without being wilful misconduct. To make misconduct wilful the person guilty of it must know that his conduct is wrongful, or pursue his course in disregard of whether it is right or wrong.

Wilful misconduct is very different from negligence, and is very much more grave, regardless of the degree of negligence. There must be the doing of something which the person knows will cause risk or injury, or the doing of an unusual thing with reference to the matter in hand, either in spite of warning or without care, regardless of whether it will or will not cause injury.

Illustrations.-A workman operating a circular saw was told a number of times to keep a guard on the saw when in use. The guard was to prevent the wood which was being sawed, if it was jerked up, from being caught by the teeth at the back of the saw and hurled about the shop, to the danger of the workmen. He had worked at circular saws several years before guards were invented, and he had a great aversion to using one. On the day in question he left the guard off the saw intentionally, and a piece of wood was caught by the saw teeth and thrown with such force against him that he was killed. Held, that the in

jury was due to the serious and wilful misconduct of the workman.7

A workman employed at a pit bottom in a mine crossed the working shaft to get a tool. Before starting across he waited for the cage to be raised, but when he was in

the act of crossing, the cage was lowered again without warning and he was severely injured. There was a way provided round the shaft, and although it was used for hutches, it was never so crowded that a man could not pass. There were no special rules prohibiting workmen from crossing the shaft, but it was recognized by them that there was great danger in doing so, and in practice no one crossed it unless the cage was in its seat. The arbitrator found that the man was guilty of serious and wilful misconduct, and on appeal this finding was upheld."

A miner was killed while going from his work by a "journey" of trams. He was leaving the mine by the usual way. There were manholes at intervals along the way which were intended to be used in avoiding trains of tram cars. He was warned by a fellow workman to get into a manhole as the "journey" was coming near. He did not heed the warning and was overtaken by the trams and killed. The trial judge found that he was guilty of serious and wilful misconduct, and on appeal it was held that there was evidence to support the finding."

Two girls were employed on the platform of a steam thresher to pass sheaves to the millman, who fed the machine. They were specially instructed to remain in their places and were warned of the danger of moving about. Their work did not require

them to converse with each other or to leave their places. During the temporary absence of the millman one of the girls attempted to step across the opening through which the mill was fed and was caught by the machinery and injured. Held, that her injuries were due to her serious and wilful misconduct.10

An engineer had taken his engine to a side track and it was then his duty to re

(8) Leishman v. Dixon (1910), Sc. Sess. Cas. 498, 47 Sc. L. Rep. 410, 3 Butterworth's W. C. Cas. 560.

(9) John v. Albion Coal Co., 18 T. L. Rep. 27, 65 J. P. 788, 4 W. C. Cas. 15.

(10) Callaghan v. Maxwell, 2 Sc. Sess. Cas. (5th series) 420, 37 Sc. L. Rep. 313, 7 Sc. L. T. 339.

port off duty at a nearby station. It was necessary in going to the station to proceed along the main line for a short distance, when a path offered egress to a public road, but the gate on this path was not always unlocked. He was warned that a train had been signaled, and when last seen alive he was walking on the main line, but was apparently making his way to the left side. where there was room to stand clear of the train. He was struck and killed by this train after he had passed the footpath above mentioned. There was no rule of the railroad company forbidding employes walking on the line. Held, that the man was not guilty of serious and wilful misconduct.11

A girl, fourteen years of age, employed as a bottler in a soda water factory, received an injury to her right wrist caused by the explosion of a bottle which she was filling at a machine. At the time of the accident she was wearing a glove on her left hand, but none on her right as required by special statutory rules, which were posted in the factory. Upon the girl making application for compensation, her employers contended that the injury was due to her serious and wilful misconduct in failing to wear a glove on her right hand which would have protected her hand and wrist. This, they asserted, she had been told to do by the forewoman. It was found that the girl had been provided with gloves, and that she knew that she ought to wear them, but that the forewoman allowed her to work without them, and only verbally told her to obey the rules to protect herself with the employer. The trial judge held that the defense of serious and wilful misconduct had not been established, and on appeal the decision was allowed to stand.12

In the case last cited it was necessary to consider the age of the girl; the fact that the forewoman had actually suffered her to work without a glove on her right hani:

(11) Tod v. Caledonian R. Co., 1 Sc. Sess. Cas (5th series) 1047, 36 Sc. L. Rep. 784, 7 Sc. L. T. 85.

(12) Casey v. Humphries, 29 T. L. Rep. 647. 5 Bucte: worth's W. C. Cas, 625.

the fact. which was found, that the left hand was more likely to be struck by glass in case of such an explosion than the right: that flying glass from an exploded bottle was no more likely to strike her right hand than her face or other parts of her body; the statutory rules, and the probable consequences of a disobedience of them in the given instance, (1) to herself, and (2) to others.

A workman who was employed to load scrap iron into barrows, was killed by a defective hoist in which he was ascending to a platform to procure hand-leathers, which were necessary in his work. Workmen were forbidden to use the hoist to ascend to the platform, and a notice to that effect was posted on a wall close by. At the time of the accident the hoist had been rendered especially dangerous by recent alterations. It was not shown that deceased knew of the notice, or that his attention had been directed to the changed condition of the hoist. It was shown that some of the workmen knew of the notice and some did not, and that all used the hoist. Held, that the deceased had not been guilty of serious and wilful misconduct.13

Distinguished from Coutributory Negligence. Serious and wilful misconduct is something more than contributory negligence, as the latter will not defeat recovery of compensation.14

A boy employed at a machine used for cutting screws, leaned over a circular saw, which was in motion, to pick up an uncut

screw which had fallen from its place, and in doing so was injured by the saw. He had been frequently told not to put his hand across the saw. It was held that, although the boy was negligent, he was not guilty of serious and wilful misconduct.15 The facts in this case showed that the element of wilfulness did not enter into what

(13) Logue v. Fullerton, 3 Sc. Sess. Cas. (5th series) 1006, 38 Sc. L. Rep. 738, 9 Sc. L. T. 152. (14) Praties v. Broxburn Oil Co. (1907), Sc. Sess. Cas. 581, 44 Sc. L. Rep. 408.

(15) Reeks v. Kynoch, 18 T. L. Rep. 34, 50 Wkly. Rep. 113, 4 W. C. Cas. 14.

the boy did, but that he acted on a sudden impulse.

Intoxication.-Being drunk and unfit for work has been held to amount to serious and wilful misconduct on the part of a workman under the circumstances of the particular case. If an injury is due to such conduct, the workman cannot recover compensation therefor.16

There are, of course, degrees of intox-' ication, and slight intoxication may not constitute serious and wilful misconduct. Then too. all the accompanying circumstances must be considered in determining the question; the degree of the intoxication is not necessarily of itself controlling. The dangerous character of the work in which the workman is engaged, and the probable consequences of his attempting to work in such a condition, are matters to be given due weight.

Violation of Rule of Employer-The breach of a rule governing the conduct of the workman in their employment is not necessarily serious and wilful misconduct.17 Much, of course, depends upon the nature of the rule, its object, the knowledge of the workman of its existence, and such like considerations. If the violation of the rule is very likely to be followed by serious consequences to the workman himself and to others in the vicinity, and the workman has knowledge of this fact, it may well be contended that such violation amounts to serious and wilful misconduct. While, on the other hand, if the rule is of only slight importance, the contrary will be held.

A locomotive engineer left the footplate of his engine while it was running at considerable speed, in order to get coal from the tender. and was killed while so doing. His conduct was in violation of a rule of the employer that "engine men and firemen must not leave the footplate of their engine when the latter is in motion." There

(16) McGroarty v. Brown & Co., 8 Sc. Sess. Cas. (5th series) 809, 43 Sc. L. Rep. 598, 14 Sc. L. T. 66.

(17) Domachie v. United Collieries (1910), Sc. Sess. Cas. 503, 47 Sc. L. Rep. 412.

HART, J. Appellants brought separate suits against appellees to recover damages on account of the alleged negligence of appellees, and the cases were consolidated for the purpose of trial.

(1, 2) The facts, so far as are necessary for a determination of the issue raised by the appeal, are as follows: Appellees had been engaged in the livery business in the city of Little Rock for several years, and, in connection therewith, rented automobies to such persons as they chose. In May, 1912, George Forbes telephoned to appellees for an automobile and driver to be used by him and some guests in driving about the city of Little Rock. Forbes had hired automobiles from appellees before this time. Appellees sent an automobile and driver to the place designated by Forbes. Forbes, and Mr. and Mrs. E. L. Smith as his guests, entered the automobile and gave directions to the driver as to the places where they wished to go. The driver had control of the machine, and the management of it, and drove to the places directed by Forbes. While going along High street, in the city of Little Rock, the automobile ran into an express wagon, and Forbes was killed and Mrs. Smith severely injured. The testimony on the part of appellants tends to show that the collision occurred by reason of the negligence of the driver of the automobile while the testimony of appellees tends to show that it was caused by the negligence of the driver of the express wagon. Appellees testified that the chauffeur in charge of their car was an experienced driver and had been in their employment as long as they had been in the business of hiring out automobiles; that he had never had an accident before and was both careful and skillful; that the car in question cost $3,500, and was in perfect condition. The

circuit court directed a verdict in favor of appellees on the ground that the only duty appellees owed to the occupants of the car was that of exercising ordinary care in furnishing a safe automobile and a careful and reliable chauffeur. To reverse the judgment rendered, appellants have prosecuted this appeal.

Mr. Hutchinson, in his work on Carriers (3d Ed. vol 1, § 35), says that private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally, or upon the particular occasion, undertake for compensation to carry the goods of others upon such terms as may be agreed upon. At section 37, the same author says that, the bailment to the private carrier for hire being for the mutual benefit of the parties, the law exacts of him a higher degree of diligence than the carrier without hire; that the measures of his duty is what is known as ordinary care or diligence, and for the lack of this he will be held liable. Again, at section 96 of the same volume, he says: "Ordinarily livery stable keepers engaged in the business of letting for hire teams and vehicles, either with or without drivers, are not carriers of passengers within the legal meaning of the term. They do not hold themselves out as undertaking, for hire, to carry indiscriminately any person who may apply." So it may be said at the outset that the relation between the hirer of the vehicle and the owner is that of bailee and bailor, and the liability of the owner is governed by the rules applicable to such a contract of bailment. Appellees hired to Forbes an automobile and driver to be used by him and his guests in driving around the city of Little Rock; and thus they became a private carrier for hire, and as such were required to use ordinary care and diligence in the performance of the duty imposed upon them by the contract. Counsel for appellees contend that the duty imposed upon the latter was to exercise ordinary care and skill in the selection of the motor vehicle, and also to exercise ordinary care and prudence in the selection of a careful and skilled chauffeur. They cite, in support of their contention, the following cases: McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. Rep. 919: Payne v. Halstead, 44 Ill. App. 97; Stanley v. Steele, 77 Conn. 688, 60 Atl. 640, 69 L. R. A. 561, 2 Ann. Cas. 342; Parker v. G. O. Loving & Co. (Ga. App.) 79 S. E. 77.

It must be admitted that language is usea in all these opinions which tends to sustain the contention of counsel for appellees; but in regard to the last two mentioned cases it may be said that the injury to the occupant of the