Concurring and Dissenting Opinion
White, J.— Although I agree that the facts found by the board compel the conclusion that decedent’s death was due to his failure to yield the right of way and that such failure is a misdemeanor, so far as the criminal law is concerned, I cannot agree that it compels disallowance of compensation *686unless it is, in truth and in fact, wilful misconduct. I read section 81 of the Workmen’s Compensation Act as compelling disallowance of compensation only for specified examples of wilful misconduct listed therein, not as making a negligent but unintentional commission of a traffic violation wilful misconduct as a matter of law when in truth and in fact there is nothing wilful about it at all. Insofar as Price v. Reed (1943), 114 Ind. App. 253, 51 N.E.2d 86, can be understood as holding otherwise, it should be overruled.2
The intent of the Legislature to disallow compensation only for wilful misconduct is clearly apparent in the original version of section 8 in the first Indiana Workmen’s Compensation Act, Acts 1915, Chapter 106, which read:
“Wilful Misconduct — Self Inflicted Injuries.
“Sec. 8. No compensation shall be allowed for an 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.
“The burden of proof shall be on the defendant employer.”
The court in Northern Ind. Gas., Etc. v. Pietzvak (1917), 69 Ind. App. 24, 31, 118 N.E. 132, had no problem before it like the one I see herein, but what is said therein clearly indicates that it understood that everything specified in that section was wilful misconduct in fact. The court said:
“The language of said section indicates that the legislature did not intend that all forms of wilful misconduct *687other than those mentioned therein should be excluded and disregarded, or that nothing else should be regarded as constituting wilful misconduct. On the contrary, said language indicates that the legislature was sensible of the fact that other forms of wilful misconduct might be recognized, but wanted to make sure that those specified would be recognized in the administration of said act.” (Italics in original.)
In 1919 the section was amended to read:
“Wilful misconduct, self-inflicted injuries. — 8. No compensation shall be allowed for an injury or death due to the employee’s intentionally self-inflicted injury, his intoxication, his commission of a felony or misdemeanor, his wilful failure or refusal to use a safety appliance, his wilful failure or refusal to obey a reasonable written or printed rule of the employer which has been posted in a conspicuous place, his wilful failure or refusal to perform any statutory duty, or to any other wilful misconduct on his part. The burden, of proof shall be on the defendant.” (My italics.)
In the above quoted 1919 version of section 8, the phrase I have italicized makes obvious that its legislative draftsmen believed that all the examples of disqualifying misconduct which precede that phrase are examples of wilful misconduct. Thus when they added to those examples “his commission of a felony or misdemeanor” they obviously believed they were specifying a form of wilful misconduct. If they had intended that the unintentional commission of a misdemeanor, such as a thoughtless failure to observe a rule of the road, would forfeit the right to compensation, it would have been illogical for them to have worded their catch-all clause as they did. The phrase “any other wilful misconduct” is not an accurate statement unless that which precedes it is also wilful misconduct
When the 1929 Act (Chapter 172) replaced the 1915 Act section 8 took its present form which is almost identical to the 1919 amendment except that the catch-all phrase “or any other wilful misconduct on his part” was deleted. That deletion had the effect of reversing the all. inclusive Pietzvak, supra, interpretation .of the original section 8. It made mani*688fest the intent of the legislature that no longer should every form of wilful misconduct prohibit the allowance of compensation. Thereafter only the forms of wilful misconduct specified would prohibit compensation. This was obviously a liberalizing victory for the laboring man and woman and is no evidence of a legislative intent to depart from the principle that it is wilful misconduct which forfeits the right to compensation. The unarticulated premise of both Kuhner Packing Co. v. Hitchens (1933), 97 Ind. App. 228, 186 N.E. 262, and Kariger Motors, Inc. v. Kariger (1961), 132 Ind. App. 85, 173 N.E.2d 916, is that the employee’s misconduct must be wilful for it to prohibit allowance of compensation.
I must also note that the majority discussion of whether Mrs. Estes was negligent is wholly unnecessary. Whether her conduct was or was not negligent and whether it was or was not a proximate cause of the collision have no bearing on whether decedent’s failure to stop or yield the right of way was the proximate cause of his death. Gerow v. Hawkins (1934), 99 Ind. App. 352, 355, 192 N.E. 713, 714.
On reversal and remand the board should be directed to make a complete and proper finding of the relevant specific facts on the issue of wilful misconduct, to the extent those facts have been proven by a preponderance of the evidence, and to enter an award accordingly.
Note. — Reported at 340 N.E.2d 796.
. Section 8 is Ind. Ann. Stat. §22-3-2-8 (Burns Code Ed., 1973), which is the disqualifying- section quoted verbatim in the majority opinion.
. My concern here is only with the proper interpretation of the Workmen’s Compensation Act to effectuate its humane purpose. I am quite willing- to concede, arguendo, that a motorist prosecuted in a criminal action for failure to yield the right of way quite properly can be convicted of a misdemeanor even though the convicting court or jury is convinced by the evidence that he did not know he was failing to yield. “In such cases the only intent necessary to the commission of the offense is the intent to do the prohibited thing.” Price v. Reed, supra, 114 Ind. App. at 258.