dissenting.
I must respectfully dissent from the majority opinion because of my belief that: (1) the majority gives the term “willfully or intentionally” a meaning more limited than is proper for the purposes of this ease, and (2) the majority fails to recognize that whether plaintiff acted “willfully or intentionally” is a question of fact upon which there was substantial evidence to support the finding by an able and experienced trial judge.
1. A refusal to obey an order in good faith belief that the order was improper is not “willful or intentional” for the purposes of forfeiting payments due under this unemployment compensation plan.
First of all, it must be remembered that this is not a discharge case, in which the issue would be whether there was such a refusal to obey an order as to provide sufficient grounds for the discharge of plaintiff. Instead, the issue in this case is whether plaintiff’s conduct was such as to forfeit unemployment compensation payments otherwise due to him. In other words, was there a “willful or intentional” re*79fusal within the meaning of the provisions of this unemployment compensation plan?
In seeking the intended meaning of that term for the purpose of this case we must give those words a meaning which is consistent with the purpose or “object” of this “relief and compensation fund,” which is stated in defendant’s constitution to be:
“* * * the maintenance of a society for beneficial and protective purposes to its members * # # »
The “Certificate of Membership” issued by defendant to plaintiff, and which includes the provisions now in controversy has most, if not all, of the necessary elements of an insurance policy.① Plaintiff made regular payments to defendant in accordance with the terms of that “certificate” since 1955. Considering the nature and purpose of this “Brotherhood’s Belief and Compensation Fund,” I believe that the rules applicable to the construction of ambiguous insurance policies are applicable in this case, to the effect that such ambiguities will be resolved against the defendant and in favor of payment of benefits. Cf. Farmers Mut. Ins. Co. v. United Pac. Ins. Co., 206 Or 298, 305, 292 P2d 492 (1956), and Reed v. Commercial Ins. Co., 248 Or 152, 156, 432 P2d 691 (1967).
It has been recognized by this court that the term “willfully” is a word of many meanings, depending upon the purpose for which the word is used in a particular context. Falls v. Mortensen, 207 Or 130, 143-44, 295 P2d 182 (1956).
Thus, when used for some purposes and in some contexts, the word “willfully” means with a “bad intent” or “an evil mind.” State v. O’Malley, 248 Or *81601, 605, 435 P2d 812 (1968), and Chaffin v. Chaffin, 239 Or 374, 387, 397 P2d 771 (1964). Accordingly, under a statute imposing a penalty upon an employer who “willfully” fails to pay Ms employee’s wages, we held that “The statute was not intended to impose liability where the employer’s refusal to pay wages is based upon a bona fide belief that he is not obligated to pay them.” (Emphasis added) State ex rel Nilsen v. Lee, 251 Or 284, 293, 444 P2d 548 (1968).
The word “willfully” has been held to have a similar meamng in the field of labor relations when applied to employees who have “willfully” failed to use a safety device or to perform a duty required by statute. Wise-Buchanan Coal Co. v. Ray, 157 Okla 197, 17 P2d 360, 361 (1932), and Pacific Indemnity Insurance Co. v. Eberhardt, 107 Ga App 391, 130 SE2d 136, 138 (1963). Indeed, even in discharge eases for “insubordination,” it has been recognized in the field of labor relations that if the work assigned to an employee involves what he believes in good faith to be an unusual danger to his health or safety, his refusal to perform such work may not constitute “insubordination,” depending upon the circumstances. See Stone, Labor-Management Contracts at Work, 212 (1961), and Halstead Metal Products, Inc., 49 L A 325 (1967).
Employees who have made monthly payments into a fund established for the purpose of providing what amounts to unemployment compensation when they are “held out of service” by their employer are entitled to a broad and liberal interpretation of such terms so as to promote, rather than to defeat, the purposes of such a “fund.”
Considering the purposes of this “fund” and the context in which the word “willfully” is used in defendant’s constitution, I believe that if, as contended *82by plaintiff,, be had a bona fide belief that he was not obligated to take ont this train unless the refrigerator cars were switched so as to be further from the car boose, he was not guilty of a “willful violation of an order” or of a “willful” refusal to perform service, so as to bar him from recovery of “out of service” benefits.
I fully recognize that the “certificate” in this case does not use the term “willful” alone, but uses the words “willful or intentional.” The majority, however, refuses to give any separate meaning to the term “willful” and holds that “ ‘intentional’ is the only meaning which was intended to be given to the word ‘willful.’ ”
Such a narrow interpretation, in my opinion, is not only inconsistent with the purposes of this fund, but with the interpretation which the defendant itself apparently placed upon these words by its position in this case. Thus, defendant has not contended, as the majority holds, that “willful” means no more than “intentional.” Instead, defendant’s answer expressly alleged that plaintiff’s conduct was “constituted insubordination, a refusal to perform services, and a wilful violation of an order.”
In any event, the term “intentional” is also a word of many meanings, depending upon the context in which it is used. For example, when used in connection with the doing of a wrongful act, the word “intentional” has been held to mean that the person intended not only to do the particular act, but to do it knowing at the time it was wrongful. See 46 CJS 1106, Intentional. To the same effect, see Horger v. Flagg, Utilities Commissioner, 185 Or 109, 132, 201 P2d 515, 202 P2d 526 (1949). See also Richards v. Griffith Rubber Mills, 300 F Supp 338, 341 (DC Or *831969), in which the court held that for the purposes of the Federal Equal Employment Opportunity Act the word “intentionally” means “wilfully and knowingly.” (liven such a meaning, as held in these cases, the doing of a wrongful act would not be “intentional” if done in the good faith belief that it was not wrong to do such an act.
For these reasons, I disagree with the interpretation of this “certificate” by the majority and agree with the trial judge in his holding to the effect that if plaintiff acted in “good faith” he did not act “willfully or intentionally” within the intended meaning of those terms, as used in this unemployment compensation plan.
2. There was substantial evidence to support the finding of fact by the trial judge that plaintiff did not “w'dlfully or intentionally” violate an order.
(a) Under the test adopted by the majority.
The majority, after holding that “willful” means no more than “intentional,” holds that:
* * we must examine the testimony to determine whether there is any evidence from which the trial court could find that plaintiff honestly believed the superintendent did not have the authority to give the order. * * * The only excuse he could have for not obeying the order which would bring him within the coverage of the policy is a belief that the superintendent did not have the authority to direct him to take out the train as it was presently made up.” (Emphasis added)
This conclusion is apparently reached by the reasoning that otherwise:
“* * * We have a situation in which both the superintendent and the plaintiff looked at the same *84factual circumstances at the same time, one deciding that it was not dangerous to take out the train as it was presently constituted and the other deciding that it was dangerous. * * *”
and by asking the rhetorical question:
“Could anyone really believe that a railroad could be operated in any other way?”
Again, however, we must recognize that this is not a discharge case. Assuming the right of Mr. Hardin to discharge a train conductor who had temerity to disagree with him, it does not follow that the train conductor could not have “honestly believed” that Mr. Hardin did not have authority to require him, to take out a train made up in a manner which was considered to be unsafe by the plaintiff who, as the conductor (like the master of a ship) was the person who was responsible for the safety of the train.
Thus, even under the test adopted by the majority, if there was any substantial evidence to support a finding by a trial judge or jury that plaintiff in fact had the “honest belief” that the superintendent did not have the authority to require him to take out the train as it was presently made up, the trial court must be affirmed.
The majority says that Mr. Hardin had authority to “supplement” the company “Safety Instructions” with his own “orders” and also to cancel such “orders.” It does not follow, however, that a district superintendent such as Mr. Hardin had authority to change or diminish the requirements of these printed company-wide “Safety Instructions.” And even if Mr. Hardin had such authority it does not follow that plaintiff, as the conductor with responsibility for the safety of a train, could not have “honestly believed” *85that Mr. Hardin had no authority to require’him .to take out a train which he believed to be made up in violation of these “Safety Instructions.”
Prior to the issuance of Bulletin Order A-47 in 1971, there had been several instances during 1970 in which, because of this hazard, the plaintiff, as the conductor, had required refrigerator cars to be switched to a position farther ahead of the caboose. The trial court could reasonably infer that the “Safety Instructions” provided the basis for that action, and a “rational basis” for doing so.
The trial court could also reasonably infer from the evidence that Bulletin Order A-47 (which was issued in 1971 in response to a union complaint) was intended to do no more than to implement these general “Safety Instructions” by specifying a particular number of car lengths for the purposes of those general rules.
In any event, a trial judge or jury could properly find that it would have been “rational” for a “reasonable” conductor, with responsibility of the train and its crew, to believe that although Mr. Hardin had authority to cancel Bulletin Order A-47, nevertheless, and because he was no more than a district superintendent, Mr. Hardin had no authority to change the general “Safety Instructions,” and that upon the cancellation of Bulletin Order A-47 the matter stood as it had been in 1970, during which refrigerator cars had been switched by plaintiff on several occasions out of concern for the hazard involved and as the “safest course [which] must be taken.”
Accordingly, if a conductor was ordered by Mr. Hardin to take out a freight train with ten diesel refrigerator cars emitting diesel fumes immediately in *86front of the caboose, a trial judge or jury could properly find that the conductor at least could have a bona fide belief that the superintendent had no authority.to require him to take out the train and that under the general “Safety Instructions” and as the conductor responsible for the safety of the train he could decline to take it out unless the refrigerator cars were switched, as the “safest course” which “must be taken.”
While the facts of this case may not be so aggravated, I nevertheless believe that the trial judge, as the trier of the facts, could have properly found from the evidence in this case that there was a rational basis upon which plaintiff, as the conductor responsible for the safety of this train, could have entertained such a belief.
There was testimony that the train, as made up, included five refrigerator cars, with the diesel or gasoline engines running on all five of them, and separated from the caboose by three other cars instead of five other cars, as had been required by Bulletin Order A-47. The testimony of Mr. Starr included the following:
“Q Did you rely upon either or any of those rules at that time in making your decision not to take the train? Did you refer to any of them at that time?
* * * *
“A Yes.
ÍÍ# % & #
“Q And will you read Instruction No. 4000, please.
iCm Í* *8 & #
“A (Beading) ‘Employes must take every precaution to prevent injury to themselves and other persons under conditions not provided for by the rules.
*87“ ‘Employes must not rely upon the carefulness of others, but must protect themselves when their own safety is affected.’ ”
'a* $ $ * #
“A Okay. Buie 4115.
(Beading) “ ‘There is hazard of carbon monoxide fumes from exhaust of diesel or gasoline engines and precautions must be taken to avoid possibility of accident therefrom.
“ ‘Exhaust from such engines must not be located in- close proximity of fresh air- intake or passenger cars and care must be exercised at all times to see that there is sufficient ventilation where such engines are operated.’ ”
“Q Were you aware of all these?
“A Yes.
“Q Now, how many of those refrigerator cars were in tandem there ahead of your caboose three cars?
“A Five.
•‘Q And were the engines running on all five of them when the train passed you?
■“A Yes, they were.”
* * O
“Q Well now, exactly what, you thought at this time that your health was in danger or you didn’t want to take the train because you didn’t feel the train complied with the bulletin; now which?
“A I felt my health and safety was in danger.”
««8 & # O «8
“Q Did you in any way intend or were you in any way insubordinate to Mr. Hardin?
“A No, I don’t feel that I was.
“Q All right. Did you refuse to take the train out?
“A I was reluctant to take the train out until —until the switching had been done that would remove the health and safety question which was of first importance in my mind.”
*88It may be 'that an appellate court,' upon the reading of- such a cold record, in the light of hindsight, may believe that this testimony was not worthy of belief. In my opinion, however, a trial judge who had the advantage of observing the plaintiff and his demeanor could have believed that plaintiff, at that time and under these circumstances, had an “honest belief” that the order given to him by Mr. Hardin was in violation of the “Safety Instructions” and that, as a result, Mr. Hardin “did not have the authority to direct him to take out the train as it was presently made up,” even under the test adopted by the majority.
(b) Under the proper test of “good faith.” .
In addition, and as previously stated, I believe that the majority has improperly construed the term “willful or intentional” to mean “intentional” and that the trial judge was correct in his holding that the proper test to be applied in determining whether plaintiff acted “willfully or intentionally” was whether or not he acted in “good faith.”
The term “good faith,” like the terms “willful” and “intentional,” is a term which may have varying meanings, depending upon the context in which it is used. The term “good faith” means the opposite of “bad faith” and, at least for many purposes, refers to the actual state of mind of the person involved. Thus, it has been held that “bad faith” is “synonymous with ‘fraud’ because it involves the element of dishonesty,” as distinguished from an “honest” intent or state of mind, as meant by the term “good faith.” See Bk. of Cal. Etc. v. Portland H. & W. Co., 131 Or 123, 139, 282 P 99 (1929). Cf. Wampler v. Palmerton, 250 Or 65, 81-82, 439 P2d 601 (1968), holding that absence of “good faith,” as used for the purposes of that case, required proof of “an intent to take unfair advantage.”
*89This, I believe to be the proper meaning to be given to the terms “good faith” and “bad faith” for the purposes of this case because such a meaning is consistent with the use of the terms “willful” and “intentional,” as previously discussed and which I believe to mean, for the purposes of this case, a “bad intent” or an “evil mind.”
All persons are entitled to the benefit of the presumption that they are innocent of crime or wrong. ORS 41.360 (1). By statute in Oregon this presumption is declared to be “indirect evidence.” ORS 41.310. Although “bad faith” or fraud can be inferred from circumstantial evidence, the burden of proof to establish bad faith or fraud is upon the party who charges it, and by clear and convincing evidence.
Upon application of these standards, I do not believe that it can properly be said that there was no substantial evidence to support the finding of fact by the trial court that in refusing to take out this train unless the refrigerator cars were switched this plaintiff acted in “good faith” and did not act with a “dishonest,” fraudulent, or “bad” intent, or with an “evil mind.” It may be that plaintiff’s conduct was such as to justify his discharge by the railroad, but it does not follow that his conduct was in “bad faith,” so as to deprive him of payments under this unemployment compensation plan.
In my opinion, the ultimate questions in this case are: Did plaintiff lie in his testimony to the effect that he acted in “good faith” and was the trial judge required to find that he lied and acted in “bad faith,” instead of finding that he told the truth and acted in “good faith”?
In my opinion, this court cannot properly reverse *90a trial judge ox jury fox-, such a finding of fact.② As held in Everding & Farrell v. Toft, 82 Or 1, 17-18, 150 P 757, 160 P 1160 (1916), “The question of good or had faith is peculiarly one for the jury and not for the court * * •
For all of these reasons I must respectfully dissent.
See following page.
*80
Cf. dissenting opinion in Palmer v. Van Petten Lumber Co., 265 Or 347 at 360, 509 P2d 420 at 427 (1973).