dealing with the liability of that company to employees negligently injured is highly persuasive as to the congressional intent.

This Compensation Act is the expression of a slowly developed purpose on the part of the United States (1908-35 Stat. 556; 1912-37 Stat. 74; 1916-39 Stat. 742) to give compensation to its employees, who otherwise would be without remedy when injured by fault of the government, and the provisions of it which we have discussed convince us that the congressional purpose was that when the compensation was accepted no further payment should be made by the government. The act does not contemplate or provide for suits against the government. On the contrary, it is essentially an act of justice or of grace on the part of the United States, elaborately and carefully worked out, and designed to compensate, promptly without ligation or expense, all employees injured while in discharge of duty, in an amount, which, on the average, was thought adequate and just. The amount of the award in each case is determined by a specially constituted commission, without cost to the claimant, and it is allowed wholly without regard to the negligence of the government or its employees.

On the other hand, the right to sue the United States under the Federal Control Act, applicable to all persons alike, is on the basis of negligence, precisely as if the government were an operating common carrier corporation, and it is subject to all of the expense, delay and hazard usual in cases of that character. The Compensation Act deals only with, and confers right only upon, employees of the government, who must necessarily be but a small percentage of those authorized to sue under the Federal Control Act, and it is impossible for us to conclude that Congress intended by the enactment of the latter law to allow an employee to claim and receive the compensation specially provided for him under the former and then, while enjoying that benefit, to institute suit against the government under the Federal Control Act, which might require it to make further payment for the same injury and which must, in all cases, subject it to expensive, harassing and often long protracted litigation.

We find no language in the Federal Control Act inconsistent with the distinct expression of purpose on the part of Congress which we have found in the Compensation Act, to treat the payments under it as sufficient and final, and for the reasons stated in the discussion herein of the latter act, and because the petitioner elected to pursue to payment the remedy given him thereunder, we agree with the Circuit Court of Appeals that his right of action asserted in this case was barred and the judgment of that court is therefore

Affirmed.

BLUE DIAMOND PLASTER CO. v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA ET AL. (L. A. 7065.) (Supreme Court of California. March 14, 1922.) 205 Pacific Reporter 678.

1. MASTER AND SERVANT - EVIDENCE IN COMPENSATION CASE HELD TO SHOW WILLFUL MISCONDUCT OF EMPLOYER'S PREDECESSOR.

Evidence that the employer's predecessor in the operation of the plant in which decedent was killed, had been repeatedly notified of the dangerous condition of its unguarded belts and pulleys, held ample to show willful

misconduct by the predecessor which would have rendered it liable for excess compensation under the Workmen's Compensation Act, 1917, § 6b, if it had retained the plant until the accident.

(For other cases, see Master and Servant, Dec. Dig. § 405[6].)

2. MASTER AND SERVANT — EVIDENCE IN COMPENSATION CASE HELD TO SHOW MISCONDUCT OF EMPLOYER ACQUIRING PLANT.

Where an employer acquired the plant almost four months before the accident in which an employee was killed, and retained the manager and superintendent who knew of the unsafe condition of its unguarded belts and pulleys, and the general manager of the purchaser had visited the plant and inspected the hoist where an unguarded belt was installed, a finding that the employer as well as its predecessor was guilty of willful misconduct, resulting in the death of the employee, will not be set aside. (For other cases, see Master and Servant, Dec. Dig. § 405[6].)

In Bank.

Proceedings under the Workmen's Compensation Act by Marilyn Wallace to recover compensation for the death of her husband, Donald M. Wallace, opposed by the Blue Diamond Plaster Company, employer, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer. The Industrial Accident Board awarded compensation in an amount exceeding by one-half the normal compensation, and required the employer and not the insurer to pay the excess, and the employer brings certiorari. Award affirmed.

Black, Hammack & Black, of Los Angeles, for petitioner.

A. E. Graupner, of San Francisco, for respondent Industrial Accident Commission.

Joe Grider, Jr., and Clarence B. Runkle, for respondent General Accident, Fire & Life Assur. Corporation, Limited.

Walter S. Clayson, of Corona, for respondent Wallace.

PER CURIAM. The petitioner in this proceeding seeks to have an award of the Industrial Accident Commission reviewed and annulled. The proceeding before the commission, in which said award was made, arose out of the following facts: Donald M. Wallace, who was an employee of the Blue Diamond Plaster Company, was killed on or about December 20, 1920, at the plant of said corporation at or near Corona, Cal., by coming into contact with an unguarded belt and pulley which were being operated at the time in the hoisthouse at said plant, in connection with machinery for the hoisting of supplies and materials from the railroad tracks to the quarry levels and various floor levels of the plant and also for the operation of a compressor therein. The machinery in this hoisthouse was in use regularly, though not constantly, in connection with the operation of the plant, and was set in motion and stopped by means of a clutch or controller which was located on one side of, and about 12 inches from, the belt, and which mamnipulators of the hoist could make use of either by going around the belt to the side on which the controller was placed or, as was more conveniently and frequently, if not customarily dene, by reaching over the belt a distance of some 22 inches to the handle of the controller.

The deceased employee, Donald M. Wallace, while not regularly in charge of the hoist, did from time to time operate its machinery in connection with his other duties as occasion required, with the knowledge of the employer, and was engaged in so doing at the time of his death, which was occasioned by his being caught and crushed between the belt and the pulley. There was no witness to the casualty, and hence the exact manner in which he was thus caught and crushed was not known.

In the proceeding instituted by the widow of the deceased, claiming an award, it was asserted that the belt and pulley which were the immediate cause of the casualty were exposed and unguarded in violation of the duty which the employer owed to its employees and in further and express and willful violation of the safety rules and orders of the Industrial Accident Commission, and that the same constituted serious and willtul misconduct on the part of the employer. Upon the hearing before the wmmission, it sustained this claim on the part of said applicant in its findings, to the effect that the maintenance of said unguarded pulley and belt by the employer was in direct and open violation of the provisions of sections 33, 34, and 35 of the Workmen's Compensation Act of 1917 (St. 1917, p. 831), and was also in violation of certain general safety o.ders of the commission which were in full force and effect at the time of said casualty, and that the said violation of said act and orders constituted serious and willful misconduct on the part of said employer and was the proximate cause of said casualty. The commission, accordingly, held that the applicant was entitled to have an award in the way of a death benefit, payable by reason of the injury to and death of the deceased empk yee, and was also entitled to have said award increased one-half under section 6b of the Workmen's Compensation Act, by reason of the fact that the injury to and death of said employee had been proximately caused through the serious and willful misconduct of the employer, said increase to be paid by such employer and not by the insurance carrier. From the award as thus made and increased the employer, after denial of its applic. tion for a rehearing before the commission, has presented this petition for a writ of review and for an order for the annulment of said award.

The particular portion of said award which is assailed in this proceeding, is that portion thereof wherein the petitioner is penalized for serious and willful misconduct in relation to the injury to and death of its said employee. It is here contended that the evidence educed before the commission fails to show the existence of any willful or serious misconduct on the part of said petitioner in relation to the producing cause of said casualty. The record before us does not, in our opinion, sustain this contention. The following facts were educed before the commission: Prior to September 1, 1920, the rock-curshing plant of the petitioner herein was owned and operated by the Temescal Rock Company, of which Mr. C. H. Haines was the superintendent and Mr. John Schreiner was general ma”ager of production. While said plant was thus owned and operated, it was at various times visited and inspected by safety inspectors of the Industrial Accident Commission. These inspections began in the year 1916, the first of these occurring on July 21st of that year, and in which the safety inspector of the commission found the plant to be dangerous and unsafe in six particulars, three of these being with respect to unguarded belts. No tification of these specific defects was sent by the commission to Mr. Jchn Schreiner, general manager of production of the plant, on August 17, 1916. On March 6, 1917, another official inspection was had, and the plant was again found to be in a dangerous and unsafe condition in respect to unguarded belts, and the notification sent by the commission to Mr. C. H Haines, the superintendent of the plant, specified six requirements for safeguarding belts and pulleys in the plant. On April 18, 1918, another official inspection, this time in company with Superintendent Haines, was made, and the plant was found to be in a dangerous and unsafe condition in fourteen particulars, four of which related to unguardred belts and pulleys. On May 24, 1919, the plant was again inspected, and a list of . requirements for correction sent to Superintendent Haines, in which was included "complete installation of safeguards." The particular belt and pulley in contact with which Wallace met his death was not installed until after this last inspection, but it may not be, and in fact is not, denied that both C. H. Haines, as superintendent, and John Schreiner, as manager of production, of said plant, while the same was in the possession and own

ership of the Temescal Rock Company, knew fully what were the requirements and directions of the Industrial Accident Commission with regard to the dangerous nature and unsafety of unguarded belts and pulleys in direct relation to the operation of said plant. In addition to this showing, it appeared that, accompanying the notification sent to the said manager of the Temescal Rock Company in 1916, were copies of the general safety orders of the commission, having special reference to quarry operations and to the safeguarding of belts and pulleys therein.

On September 1, 1920, the Blue Diamond Plaster Company, a corporation, and the petitioner herein, purchased and took over from the Temescal Rock Company the plant in question, and thereafter continued to operate the same and was so doing at the time of the injury to and death of its said employee and, in so doing, it retained and continued said C. H. Haines and John Schreiner in their former positions as the superintendent and manager, respectively, of said rock-crushing plant, and they held and were holding said positions up to and at the time of the injury to and death of said Wallace. It is in evidence that soon after the petitioner's purchase of said plant the general manager of the corporation, Mr. Hay, went over the said plant, and, after doing so, gave general instructions to its superintendent, Mr. Haines, with respect to safety appliances, and that he also instructed Mr. Pratt, the insurance broker who placed the insurance both as to fire and casualty upon the plant, to have an inspection thereof made with a view to compliance with all legal requirements as to safety devices; but the record shows that Mr. Hay did not follow up his suggestions either to the superintendent or to the insurance broker to the extent of seeing to it that the safety appliances were provided or such inspection made. The result was that the belt and pulley in the hoisthouse which caused the death of Wallace were left ungarded between the time when the petitioner acquired said plant and the date and occasion of the death of the employee.

[1] Had the Temescal Rock Company continued to be the owner and operator of the plant in question down to and including the time and event of said casualty, we entertain no doubt that it would have been liable to an award, not only for the death of its said employee, but also for the increase in the death benefit thus awarded provided for in section 6b of the Workmen's Compensation Act.

[2] The facts of this case, as above recited, present an even stronger reason for the application of said section than were presented in the case of E. Clemens Horst Co. v. Industrial Acc. Comm., 193 Pac. 105, 16 A. L. R. 611, wherein it was held that the failure to comply with the general safety orders of the commission with respect to the safeguarding of shafting, which the employer knew or should have known to be unsafe, would constitue such serious and wilful misconduct on the part of the employer as to justify the increase in an award provided for in said section of the Workmen's Compensation Act. The petitioner herein, however, contends that, conceding that such would have been a proper application of the terms of said section to the Temescal Rock Company had it continued to be the owner of the plant in question up to the time of said casualty, there was not sufficient evidence before the commission to justify its application to the petitioner herein as the purchaser of said plant a short while before the accident which caused the death of said employee. The Blue Diamond Plaster Company purchased and took over the said plant from the Temescal Rock Company on September 1, 1920. The injury to and death of its said employee occurred on December 20, 1920, a little less than four months later. When the petitioner took over said plant and continued the operation thereof it retained in its employ in their fermer positions of superintendent and manager of production respectively, Mr. C. H. Haines and Mr. John Schreiner, and these two executive and managing officers of the corporation were invested with the general conduct and control of said plant during the interval between the date

of its purchase by the petitioner and the injury to and death of said employee. The evidence educed before the commission further showed that Mr. Hay, the general manager of said corporation, visited and inspected the plant shortly after its purchase, and, in the course of such inspection, visited and inspected the hoist, in connection with the operation of which the unguarded belt and pulley which were admittedly responsible for the death of said workman, were then installed. In addition to this evidence of an opportunity on the part of the petitioner, through its general manager, to have gained actual knowledge of the unguarded and dangerous condition of its appliances, there is the evidence, ample in character, of the previous knowledge of both Haines and Schreiner, not only of the unguarded condition of the said belt and pulley, but also of the terms of the general safety orders of the commission and of its express and repeated directions given to them and to each of them as the executive and managing officers of the former owner with relation to the stfeguarding of the belts and pulleys of the plant.

[3] It is urged by the petitioner that this knowledge on the part of these persons, so retained in their positions under the petitioner's ownership of the plant, cannot be imputed to the petitioner. No authority is cited to sustain this contention which is at all pertinent to the situation as presented here. In the case of Cooke v. Mesmer, 164 Cal. 332, 338, 128 Pac. 917, 920, the rule is thus stated:

"While the decided weight of authority is in favor of the rule that knowledge possessed by an agent, while he occupies that relation and is executing the authority conferred upon him, as to matters within the scope of his authority, is notice to his principal,although such knowledge may have been acquired before the agency was created, it is universally recognized that this rule is subject to the qualification that knowledge acquired by an agent before the commencement of the agency is not notice to the principal unless it is shown or appears that knowledge was present in his mind at the time he acted for the principal.' Clark & Skyles on Agency, sec. 482."

The element, which was noted as lacking in the case above cited in order to the application of the otherwise general rule to its facts, is clearly present in the instant case, since the said officials of the petitioner here in both testified that they were at all times aware of the unguarded condition of said belt and pulley, but that they did not consider said condition to be unsafe or dangerous. Their mistake in judgement upon that subject cannot be held to relieve their employer from liability, in view of the other evidence before the commission to the effect that these unguarded appliances were dangerous and unsafe, and of the even more conclusive showing that this employee met his death in the course of his duties through contact with them in their unguarded condition. The following cases from other jurisdictions sustain the determination that the knowledge which a mamaging official of a corporation gained as to certain facts and conditions, while a like official of the predeccessor of sail corporation is imputable to the latter. Blue Grass Ccal Corp. v. Combs. 168 Ky. 437, 182 S. W. 207, Louisville, ect, Co. v. Central Ky. Tr. Co. 147 Ky. 513, 144 S. W. 739, Ann. Cas. 1915A,857.

The other contentions of the petitioner have not, in our opinion, sufficient merit to warrant separate consideration.

Order of award affirmed.

Shaw, C. J., Richards, Justice pro tem., and Wilbur, Sloane, Lawlor, Shurtleff, and Waste, JJ., concur.