*560Dissenting Opinion.
Ibach, J.I think it proper to present my views of this case, which differ from those of the majority of the court. On the hearing before the board many facts essential to a recovery were conceded by appellant, so that the controlling question before the board was whether or not the injury and death were due to decedent’s wilful misconduct. The board by its finding and award has answered such question in the negative.
The sole question for our determination is whether or not there is any evidence from which such conclusion may be reasonably inferred.
The statute provides: “No compensation shall be allowed for any injury or death due to the employe’s wilful misconduct, including intentional self-inflicted injury, intoxication, and wilful failure or refusal to use a safety appliance or perform a duty required by statute.” §8, Acts 1915 p. 392, §80201 Burns’ Supp. 1918.
The uncontradicted facts upon this point as disclosed by the evidence are in substance as follows: Appellee’s husband, herein referred to as decedent, was a man of mature years, with fair intelligence. He was employed by appellant to operate a drill press. He was familiar with this kind of work, and had operated drill presses for appellant for a number of years. At the time of his injury he was engaged in drilling holes in certain levers that went into the cars built by appellant. Appellant provided different safety devices for the protection of the operator and other workmen about such drills. A device, designated a “clamp'guard,” was provided and kept on the drills for use by the operators when “there was danger of the piece (being drilled) flying around.” *561In drilling small work there was no danger of the drill catching in the work, the work running up on the drill and swinging around. The levers upon which decedent was working at the time of his injury were of this class. A device provided by the workmen and designated as a “strap bolt” was frequently used by the workmen in drilling heavy work, and such a device was being used by decedent at the time of his injury. The clamp guard was attached when needed by two bolts, requiring from two to three minutes to put it on while the strap bolt could be dropped in a hole on the drill plate without loss of time. Both served the same purpose, except when the work was liable to raise up on the drill.
Decedent had been instructed and directed not to do any work without' the clamp guard when there was danger of the work flying around, and he had been scolded and reprimanded when found not using them and made to put them on, and'this was done on many occasions. He knew of the danger connected with drilling the class of work at which he was engaged when injured without using the clamps; that by reason of their length and weight there was danger of the levers flying around. Appellant required all of its drill-press employes to use the clamp guard when drilling work about which there was danger of it flying around. The only evidence indicating the manner in which decedent was injured was a statement made by'him immediately after the injury, that “the lever swung around and hit me.”
Appellant’s foreman testified: “Whenever I caught him (decedent) drilling anything where there was danger of it flying around, I would give him the dickens, * * * gave him a talking to and made him *562put them (clamps) on. The clamps were kept’ by his machine, very handy. Tie used them often and knew what they were for. I have caught the men doing the work without clamps and I have stopped them and made them put them on.”
At the time of the accident, and for about a year prior thereto, appellant had in its employ a man whose time was wholly devoted to safety work in its plant and to educating the workmen to eliminate dangerous practices. He stated: “In the use of safety appliances we try to use diplomacy. We are not in favor of firing men. We try to educate them to observe safety rules. That is what we are doing for them. We have laid men off for a day or two or a week'for breaking safety rules. We fired a foreman about two or three weeks ago for breaking a safety rule; in not requiring men to obey * # * the use of safety appliances. The rules were in force in the shop where Charles Kay was hurt. I go through the department every day, morning and afternoon. If I saw a man not working with his goggles or breaking a safety rule I go-to the man myself and talk to him. I have talked to men right ih this department'. That is a part of my work. I would not say that I fired men for not using this particular safety device, but I have been after the men in this particular department for not using goggles.”
If further appears from the evidence that the instructions relating to the use of safety devices were generally obeyed until the men were paid by piece work, after which time there was a greater tendency to violate such rules, probably due to the fact that some time was consumed in attaching the safety device and they did not want to lose the time.
*563As to what constitutes “wilful misconduct” as it is used in the statute in its broad sense we are not especially concerned, for our statute in this respect, unlike most of the other states, contains the express provision that wilful misconduct shall include “wilfulfailure or refusal to use a safety appliance.” The question is therefore narrowed to whether or not there is evidence properly in the record justifying the conclusion of the board that the decedent did not wilfully fail or refuse to use a safety appliance.
Appellant furnished and kept handy a special de-> vice or guard for decedent’s use when drilling work in which there was danger of its flying around. The kind of work he was doing when injured was this class of work, and, as the evidence shows, did fly around and strike decedent, causing his injury and death. Decedent' knew that the guard was provided for this kind of work, and knew that it was dangerous to drill the levers without using the clamp guard provided by appellant, but instead used the “strap bolt” provided by himself, against which he had been warned on several occasions and made to put the clamp guard on. I can but interpret decedent’s conduct in one way, and that is he concluded he could save some time by omitting to attach the clamp guard and took his chances to perform the work without it, knowing all the while of the probable consequences that might follow, which conduct shows as a matter of law a wilful failure to use a safety appliance. To my mind the fact that there was some evidence tending to show that at times the employes had been permitted to exercise their own judgment' when to use the safety device furnished by themselves and when to use the particular one furnished by appellant can*564not affect this particular case, for there is no dispute about the fact that' the device was furnished to be used in the kind of work at which decedent was then engaged, and that he knew the particular work at which he was then engaged would “fly around and strike him in the absence of that special device, and that he had been instructed to use it when engaged in that particular work.” In othór words, there was no discretion granted the decedent, either’ directly or inferentially, as to the use of the particular safety device furnished by appellant when he was engaged at the particular kind of work he was doing when injured. And this appears clear and certain from the answer itself given by the decedent when asked how the accident happened, viz., “the lever flew around and hit me. I did not have the clamp on.” The entire record in this case shows without conflict' that decedent was specifically ordered and required to use the particular clamp and no other device in doing the work he was engaged in doing when injured; that he wilfully failed to use such device for such work; and that his failure so to do was the sole cause of his injuries. Consequently, under our statute, such refusal prevents the allowance of compensation. Lines v. Pacific Co., 2 Cal. I. A. C. Dec. 837; Donnachie v. United Co. Collieries, Ltd., S. C. 503 (Ct. of Sessions 1910); Brooker v. Warren (1906), 9 W. C. C. 26; Gordon v. San Francisco Rys., 1 Cal. I. A. C. Dec. 232; Waddell v. Coltness Iron Co. (1912), 6 B. W. C. C. 306; Guthrie v. Boase Co., 3 F. 769; Smith v. Corson (1915), 87 N. J. Law 118, 93 Atl. 112.
• I think the award of the Industrial Board should be reversed.
Dausman, J., concurs.