Jenkins v. Carman Mfc. Co.

155 P. 703, 79 Or. 448, 1916 Ore. LEXIS 199

• Court: Oregon Supreme Court
• Decided: March 7, 1916
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1, 2. Plaintiff, having chosen to take advantage of the Workmen’s Compensation Act, cannot recover, unless he brings himself within one of the exceptions mentioned therein. The exceptions here to be noted are Sections 22 and 25 of the act, which constitute Chapter 112 of the Laws of 1913. They provide:

“Sec. 22. If injury or death results to a workman from the deliberate intention of the workman himself to produce such injury or death, neither the workman nor the widow, widower, child or dependent of the workman shall receive any payment whatsoever out of the accident fund. If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman shall have the privilege to take under this act, and also have cause of action against the employer, as if this act had not been passed, for damages over the amount payable hereunder. * * ”

“Sec. 25. If any workman shall sustain an injury which the commission shall determine to have been caused in whole or in part by the failure of his employer to install or maintain any safety appliance, device or safeguard required by statute, such workman, or, if such injury result in death, then the husband, wife, child or dependent of such workman, shall have the same rights against such employer as in the case of an employer defaulting in payments due hereunder, and all of the provisions of the preceding section shall apply with respect to such claim: Provided, in case the workman or his beneficiary proceeds against the employer he shall have no claim against the accident fund.”

Plaintiff having alleged that he has elected to apply to the Industrial Accident Commission for compensation cannot bring an action under the Employers ’ Act, unless he shows by his pleading and proof that the Industrial Accident Commission has determined that the injury was caused in whole or in part by the failure of the employer to install and maintain the safety appliances required by that act.

3. As to the right of recovery under the twenty-second section, the allegations are somewhat argumentative and inconsistent; but taken as a whole and fairly construed they amount to this: That defendant knew the roll was broken and a menace and danger to workmen, and knowing this fact carelessly, recklessly and negligently failed to repair it, and required its workmen to labor in its vicinity in its defective condition, deliberately intending to risk the danger of an injury. The deliberate intent follows as a deduction from the allegation of knowledge of the danger and the carelessness, negligence, and recklessness of defendant in not obviating it. In our opinion the allegation goes no further than to charge that defendant with full’ knowledge of the defect carelessly, negligently, and recklessly took the risk of its injuring the plaintiff. If defendant deliberately intended to wound plaintiff or his fellow-workmen and intentionally used this broken roll as he would have used an ax or a club to produce the intended injury, it is liable; otherwise it is not. A deliberate act is one the consequences of which are weighed in the mind beforehand. It is prolonged premeditation, and the word when used in connection with an injury to another denotes design and malignity of heart. It has been defined so many times that it is difficult to select any one definition which covers every phase in which the word is used, but some of the most apt are:

“The word ‘deliberate’ is derived from two Latin words, which mean, literally, ‘concerning,’ and ‘to weigh.’ * * As an adjective * * it means that the manner of the performance was determined upon after examination and reflection — that the consequences, chances and means weighed, carefully considered and estimated”: Craft v. State, 3 Kan. 451.

“Deliberation is prolonged premeditation”: State v. Speyer, 207 Mo. 540 (106 S. W. 505, 14 L. R. A. (N. S.) 836).

“Deliberation is that act of the mind which examines and considers whether a contemplated act should or should not be done”: United States v. Kie, 26 Fed. Cas. 781.

We think by the words “deliberate intention to produce the injury” that the lawmakers meant to imply that the employer must have determined to injure an employee and used some means appropriate to that end; that there mnst be a specific intent, and not merely carelessness or negligence, however gross.

The judgment is affirmed. Affirmed.

Me. Justice Eakin took no part in tbe consideration of this case.