A dispensary physician was held not to be a workman ; Murphy v. Euniscorthy Board, 42 Ir. L. T. 246. Persons engaged in the business of copying or translating legal docu ments or manuscripts, and who are known as "law writers," are held to be workmen ; McKrill v. Howard & Jones, 2 Butterworth's W. C. Cas. 460.
Whether or not an employe is a workman depends upon his contract of employment. If he is employed as a workman, the fact that he has a university degree does not render him any less a workman. On the other hand, if he is employed in a capacity of a scientist, the fact that he performs manual labor in connection with the work for which he was employed does not make him a workman ; Bagnall v. Levinstein, [1907] 1 K. B. 531. A professional foot-ball player has been held a workman ; Walker v. Crystal Palace Foot ball Club, [1910] 1 K. B. 87; but not a lec turer ; Waites v. Franco-British Exhibition, 25 T. L. Rep. 441.
Serious and Wilful Misconduct. 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 seri ous which, in view of reasonable persons in a position to judge, exposes any person in cluding the person guilty of it, to the risk of serious injury; Hill v. Granby Consol. Mines, 12 Br. Col. 118.
It may be contended that, on account of the necessity for strict discipline among em ployees engaged in establishments where ma chinery is used, and the grave danger attend ant upon a general laxity of discipline, a violation of any rule is serious. If such con tention were true it would render the word "serious," as used in the statutes, mere sur plusage. 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 workman should be de prived of compensation merely because a breach of some rule attended the accident.
"Serious" and "wilful" do not refer to con duct, but to "misconduct." In the first place, there must be misconduct ; then it must be wilful ; and, finally, it must be serious. Con duct may often be wilful, and its consequenc es serious, but yet not amount to misconduct. "Misconduct" means wrong conduct.
"Wilful" means by one's own volition or will ; intentional. It imports that the mis conduct was deliberate, not merely a thought less act on the spur of the moment ; John son v. Marshall Sons & Co., [1906] A. C. 409. It is not enough that the act is wilful ; it must be done by the workman with the in tention or knowledge of being guilty of mis conduct ; Bist v. London, etc., R. Co., [1907] A. C. 209.
Wilful misconduct must mean the doing of something, or the omitting to do something, which is wrong to do or omit, where the per son who is guilty of the act or omission knows that the act which he is doing, or that which he is omitting to do, is a wrong thing to do or omit ; and it involves the knowledge of the person that the thing which he is doing is wrong ; Seven, Workmen's Compensation (4th ed.) 396.
A miner was killed by a tram car while going from hls work. He was leaving the mine by the usual way. There were manholes
at intervals along the way, which were to be used in avoiding trains of tram cars. He was warned by a fellow-workmau to get into a manhole as the "journey" was coming near. He did not heed the warning, and was over taken by the cars and killed. The trial judge found that he was guilty of serious and wil ful misconduct, and, on appeal, it was held that there was evidence to support the find ing ; John v. Albion Coal Co., 18 T. L. Rep. 27.
Serious and wilful misconduct is something more than contributory negligence, as the lat ter will not defeat recovery of compensation; Praties v. Broxbune Oil Co., 44 Sc. L. Rep. 408.
A locomotive engineer left the foot-plate of his engine while it was running at consider able speed, in order to get coal from the ten der, and was killed while so doing. His con duct was in violation of a rule of the em ployer that "enginemen and firemen must not leave the foot-plate of their engine when the latter is in motion." There was evidence that the engineer knew of this rule and could have gotten coal without leaving the foot plate. The court held that the accident was due to serious and wilful misconduct ; Bist v. London, etc., R. Co., [1907] A. C. 209.
In order that the violation of a rule of the employer shall militate against the workman, he must have notice, either actual or con structive, of the rule. But it is held that knowledge on the part of the workman is suf ficient, regardless of the way in which such knowledge was acquired ; Port Royal & W. C. R. Co. v. Davis, 95 Ga. 292, 22 S. E. 833. On the other hand, it has been held that a mere statement by the foreman to the work man that a certain rule exists is insufficient to charge the workman with notice; Daubert v. Meat Co., 135 Cal.• 144, 67 Pac. 133; and a printed rule was declared insufficient to constitute notice to a workman who could not read ; Himrod Coal Co. v. Clark, 197 Ill. 514, 519, 64 N. E. 282.
Whether or not a workman has been guilty of serious or wilful misconduct is a mixed question of law and fact. After the facts have been found, whether or not they con stitute serious or wilful misconduct is a ques tion of law ; Dailly v. Watson, 8 Sc. L. T. 73. Whether or not there is any reasonable evi dence to support a finding of serious and wil ful misconduct is a question of law ; British Columbia Sugar Refining Co. v. Granick, 44 Can. Sup. Ct. 105.
In this article the provisions of the English workmen's compensation act and the cases thereunder have been considered principally, inasmuch as some or all of their provisions have been incorporated in many of the stat utes enacted in the United States, and their construction in this country will doubtless be substantially the same as in England.
See Elliott on Workmen's Compensation. Acts, Labatt on Workmen's Compensation, and Butterworth's Workmen's Compensation Cases, containing cases in Great Britain and Ireland, and another series for Canada. • For the law in foreign countries not above referred to, reference may be had to the works above mentioned. The department of labor has published (December 23, 1913) the laws of the United States and foreign coun tries.