them alone and filed within the specified time. This was upon the theory, doubtless, that under the circumstances Ann Nutt Baker was not an adverse party, and need not be made a party to the new trial proceeding. We may assume that this view was erroneous, but we are of the opinion that it does not follow that no new trial proceeding was duly initiated. To the contrary, it is clear that by the service and filing of the notice on Martha and David Nutt within the specified time, such a proceeding was duly initiated as to them at least, and that the trial court had jurisdiction to determine the motion.

[4] If it be true that Ann Nutt Baker was an adverse party in the sense that unless by service she was made a party to the proceeding on motion for a new trial the trial court could not properly grant the motion, that fact would be a reason requiring the denial of the motion, but it would not deprive the trial court of jurisdiction to hear and determine the motion. This, we think, is the effect of the authorities. (See Johnson v. Phenix Ins. Co., 146 Cal. 571, [80 Pac. 719], and cases there cited.) So it may not be held that a new trial proceeding was not pending in this case. Its facts clearly distinguish it from Whiting-Mead etc. Co. v. Bayside Land Co., supra, where there was no initiation of a new trial proceeding as to any adverse party. It follows from what we have said that the appeal taken within thirty days after the entry of the order denying a new trial was in time.

The other ground of the motion to dismiss was that no sufficient notice of appeal was ever filed. As to this ground we orally stated our views from the bench at the time of the hearing of the motion, to the effect that the notice should be held to be sufficient. No useful purpose would be subserved by further discussion of this point.

The motion to dismiss the appeal is denied.

Shaw, J., Wilbur, J., Olney, J., Lennon, J., Lawlor, J., and Melvin, J., concurred.

[S. F. No. 8890. In Bank.-May 29, 1919.]

HYMAN BROTHERS BOX & LABEL COMPANY et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

[1] WORKMEN'S COMPENSATION ACT RIGHTS OF APPLICANT FOR COMPENSATION-LAW IN FORCE AT TIME OF INJURY.-The rights of an applicant for compensation under the Workmen's Compensation Act must be measured by the act in force at the time of the injury. [2] ID.-WILLFUL MISCONDUCT-DETERMINATION OF QUESTION-JURISDICTION OF COMMISSION.-The determination as to whether or not the described actions of an employee amount to willful misconduct goes to the jurisdiction of the Industrial Accident Commission. [3] ID. WILLFUL MISCONDUCT DEFINED. Willful misconduct means something more than negligence, and does not include every violation or disregard of a rule, but it cannot be doubted that a workman who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct and that where the workman deliberately violates the rule, with knowledge of its existence and of the dangers accompanying its violation, he is guilty of willful misconduct.

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[4] ID.-INJURY TO MINOR EMPLOYEE-REACHING OF HAND INTO MovING PRESS-VIOLATION OF RULE SUDDEN IMPULSE-RIGHT TO COMPENSATION.-Under the Workmen's Compensation Act, an ployee of the age of twenty years who was injured while operating a printing-press by having his hand caught between the bed of the press and the platen in reaching into the machine when in motion to remove some fallen cards, was not guilty of willful misconduct, notwithstanding warning had been given him to never reach into the machine in motion, where it appeared that at the rate of the running of the press, the operator upon seeing a card fall was given but the smallest degree of time for determination as to whether or not he should reach for the same.

[5] ID.-AVERAGE WEEKLY EARNINGS OF INJURED EMPLOYEE-BASIS OF COMPUTATION.-Under section 17c of the Workmen's Compensation Act, the Industrial Accident Commission has no power in the case of an injury to an employee in his twenty-first year to compute the compensation on the basis of probable wages which the employee might obtain long after reaching the age of twenty-one years, since the word "after" as used in such section providing "if the injured employee is under twenty-one years his average weekly earnings shall be deemed to be the weekly sum that under ordinary circumstances he would probably be able to earn 'after' attaining the age of twenty-one years," means "at" the age of twenty-one years.

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. Award annulled.

The facts are stated in the opinion of the court.

E. L. Stockwell and Redman & Alexander for Petitioners.

Christopher M. Bradley and Warren H. Pillsbury for Respondents.

MELVIN, J.-Certiorari to review the award of the Industrial Accident Commission in favor of Fred Weiss, who was injured by having his hand caught in a printing-press to which he was "feeding" pieces of pasteboard that were cut by the machinery into proper shape for use in the making of pasteboard boxes.

[1] The injury was suffered by the applicant for compensation in the month of December, 1917, and his rights must be measured by the Workmen's Compensation Act of 1913, as amended in 1915, which was then in force.

The applicant was twenty years of age at the time of the injury. He had worked for the Hyman Brothers Box & Label Company, generally as a "press-feeder," three times, his terms of employment aggregating about nineteen months. He had worked for another corporation, also as a pressfeeder, for two years and two months. It thus appears that he was an experienced workman almost of the age of majority.

The press at which Mr. Weiss was working when he was injured was equipped with a stationary upright plate called the "bed" and a plate called the "platen" which repeatedly opened and closed against the "bed." In operating the press he stood in front of it, removing the cut pasteboard with his left hand and inserting the uncut sheets with his right hand. Sometimes a cardboard sheet would slip off the bed of the press and fall into the body of the press, and sometimes some of the uncut pieces would fall into the press from the "feed-board" upon which the operator kept a supply. In such case the press could be stopped at once by moving a lever and the card or cards could be removed without danger. The injury to the applicant occurred while he was reaching into the body of the moving press for a sheet or sheets which

had fallen. Asked by the examiner if that was a proper thing for him to do, he said, "Well, it might not have been," and to the question, "Why not?" he replied as follows: 'When I first came to Hyman Brothers Box and Label Company, I was told not to grab any sheets, when I first came there. That was three or three and a half or four years ago. Then I left Hyman Brothers again and came back, after feeding that many years, and being that I was experienced in feeding, I was not told that any more. Following this statement the questions and answers were as follows: "Q. You knew then that that instruction had been given you and you knew it was not a proper thing to do? A. Yes. "Q. Had anybody ever seen you do that before, any of the foremen? A. I don't know. I couldn't tell you that. "Q. You had done it two or three times before? A. Yes, sir.

"Q. And you did it this time? A. Yes, sir."

At another place in the return to the writ his testimony is reported as follows:

"Q. Mr. Weiss, if you were reaching into that machine to take out loose cards that had fallen in there while the machine was in motion, you were doing something you knew was not exactly proper, weren't you? A. The loose ones, you mean?

"Q. Yes. A. Yes, sir.

"Q. But nobody had said anything to you in the last year or two about doing that? A. No, sir.

"Q. But when you first came there, as I understand you, you were instructed never to reach into the machine? A. When I first started to learn. That was the first place I fed. I was just starting to learn to feed at that time.

"Q. What did they say to you? A. They told me, 'You don't want to put your hand into the machine if any sheets fall down, because you can get more sheets than you can hands.'

"Q. What would have been the right thing to have done if those sheets had fallen in there? A. Stop the machine. It didn't do any harm and you could still keep running."

In his application to the Industrial Accident Commission for compensation Mr. Weiss had described the occasion of the injury as follows: "Some sheets of box board dropped from the feed-board into the press and applicant reached with his

left hand to catch them, the left hand and arm being caught between bed and platen."

The Industrial Accident Commission found that in attempting to catch the card "the employee acted instinctively without reflection and such act did not constitute willful misconduct and that, therefore, said injury was not caused by willful misconduct of the employee." Petitioners attack this finding as contrary to the evidence. This, they say, is the case of an employee who, with full appreciation of the danger, violated specific instructions given him for his own protection. The question before us, therefore, is whether or not the described actions of the employee amounted to willful misconduct. [2] That an answer to such a problem goes to the jurisdiction of the Industrial Accident Commission is settled by decisions of this court. (Great Western Power Co. v. Pillsbury, 170 Cal. 180, [149 Pac. 35, 1 I. A. C. 669]; Fidelity and Deposit Co. v. Industrial Accident Com., 171 Cal. 728, [L. R. A. 1916D, 903, 154 Pac. 834].)

The doctrine that an unpremeditated and impulsive act in violation of orders may not be willful misconduct finds some support in the authorities, but usually nonage is an element of the decisions in which such doctrine has been upheld. It seems to us, however, that the age of the person injured does not necessarily make a material difference. The tendency to recover something falling from a machine; to reach for a hat blown off the head by a sudden gust of wind; to apply the brakes to a "skidding" automobile-in short to perform acts of many sorts upon the impulse of the moment, is not the failing of youth alone. The true tests to be applied have reference to the nature of the work being performed and the circumstances of each particular case. This court has been at pains more than once to define "willful misconduct." [3] Perhaps the best definition (and, incidentally, the one cited by both parties to this controversy) is the one found in the opinion in Great Western Power Co. v. Industrial Accident Com., 170 Cal. 180, 189, [149 Pac. 35, 40]. The court used this language: "Willful misconduct means something more than negligence. It does not include every violation or disregard of a rule. (Casey v. Humphries [1913], 6 B. W. C. C. 520.) But it cannot be doubted that a workman who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of