Dowden v. Industrial Acc. Commission

Decision Date06 December 1963
Citation223 Cal.App.2d 124,35 Cal.Rptr. 541
CourtCalifornia Court of Appeals Court of Appeals
PartiesNeoma C. DOWDEN et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California et al., Respondents. Civ. 10697.

Harold Wilsey, Jr., William L. Fisher, Colusa, for petitioners.

Everett A. Corten and Rupert A. Pedrin, San Francisco, Rich, Fuidge, Dawson & Marsh, Marysville, Patrick R. Maloney, Sacramento, for respondent Industrial Acc. Comm.

FRIEDMAN, Justice.

Petitioners are the surviving widow and children of Emery G. Dowden, who suffered fatal injuries in the course of his employment. Petitioners applied to the Industrial Accident Commission for an increased award pursuant to Labor Code section 4553, contending that the accident occurred as the result of serious and wilful misconduct on the part of Dowden's employer, Newton Polander. The commission denied the award and petitioners seek review.

For several years before his death Dowden had been employed as a worker on ranches operated by Polander in Colusa County. Occasionally it was necessary to move a harvester along a county highway. The harvester was a large piece of machinery with a tall structure or 'elevator' in the center. When moved on the highway, it would be loaded on a low-bed trailer pulled by a diesel truck-tractor. Loaded on the trailer, the harvester had a height 20 to 21 feet above the ground. Three power transmission lines owned by Pacific Gas and Electric Company crossed the highway at an angle. The lines were 20 to 21 feet above the ground. The evidence does not disclose what lateral spaces separated these lines, but a photograph indicates that they were within a few feet of one another, being carried on a single line of poles. Each of these lines carried 12,000 volts. The harvester had to pass beneath these lines. When moving the harvester, Polander did not request the utility company to de-energize the lines. Rather, he would have one of his employees stand on the harvester and raise a wooden board into the air and lift the power lines to permit clearance of the harvester elevator. When raised, the power lines would be 6 to 8 inches above the highest point of the elevator.

On October 27, 1961, the day of the fatal accident, Polander was driving the diesel truck and trailer which carried the harvester along the highway. He stationed Dowden on the front part of the harvester. Dowden held a 1 X 4 inch board about 8 feet long. He was instructed to lift the wires by holding the board at an angle toward the rear, causing the wires to slide up and over the top of the board as the harvester moved forward. Another employee named Torres followed in a pickup truck. From where he sat in the truck, Polander could see the wires in the rear view mirror but could not see Dowden. The harvester successfully passed beneath the first of the three transmission lines. Polander saw the second wire lifted and started to drive forward. At that point the wire made contact with the harvester. High voltage electricity flowed through the harvester and into Dowden's body, inflicting injuries which caused his death some weeks later.

Polander testified that on other occasions the harvester had been moved under the power lines in the same manner and that no trouble had occurred. He was present on these occasions. He knew that the lines carried a high voltage load but did not know the precise voltage. He stated, however, that once or twice the wires had flashed but caused no harm. On one occasion, an employee named Rocco was lifting the wires and got a flash. Polander knew that there was a 'regulation' against operating a crane within 6 feet of a power line, but knew of no other government order or regulation restricting transportation of equipment within the vicinity of power lines.

In the following colloquies at the commission hearing, Polander described his own recognition of dangerous possibilities:

'[MR. FISHER] Q Well, would it be fair to state, Mr. Polander, that this was a dangerous situation or condition which could very easily cause electrical burns and injury? * * * WITNESS [Polander]: Well, I had been under there before three different times without any trouble, and I never had any reason to think there was anything dangerous. MR. FISHER: Q It was your frame of mind then this did not constitute a dangerous situation? A Yes, I had been under there, and I didn't think it was that dangerous, which it wouldn't have been if it was done in the right way.'

* * *

* * *

'Q Now, you stated, Mr. Polander, you never had any--correct me if I am wrong in my attempt to paraphrase your testimony. As I understood it, you stated you had passed under there 3 or 4 times before. A. Three, I think. Q And you never had any trouble before? A Not any particular trouble, no.'

* * *

* * *

'WITNESS: Well, the way that I had planned and set it up to lift the wires to my knowledge is not dangerous if it were done right to my knowledge. I don't believe it was dangerous. REFEREE: Q Again if they do right, assuming everybody does right, that nobody makes a mistake, no harm is going to result in any of these situations. A There is always the possibility of human error. REFEREE: You didn't feel you needed to guard against that in your situation? WITNESS: In this particular case, no.'

At another point in his testimony he said that he had told Dowden to 'be careful.' Asked whether he realized the danger, he replied: 'You know it is a power line.'

Rocco testified that once when he was on the harvester lifting the wires he received a shock. He told Polander and, on the return trip, Polander stationed both Rocco and Dowden on the harvester to lift the wires. On another occasion Dowden lifted the wires too fast and the board broke causing two of the wires to contact and creating a flash. Polander was driving the truck at the time, and Rocco shouted at him, informing him of the occurrence. A former employee named Miller testified that once he was about to fashion a wooden 'T' to lift the wires but Polander indicated that the straight board was adequate. Polander did not deny any of this testimony.

Petitioners' claim of serious and wilful misconduct was premised on two theories: First, that the employer had breached Industrial Safety Order No. 2603 (8 Cal.Adm.Code, sec. 2603) of the Department of Industrial Relations, and second, that the employer had subjected his employee to a dangerous situation. The commission rejected the claim.

Appellate courts will not disturb Industrial Accident Commission findings of fact which are supported by any evidence. (Gonzales v. Industrial Acc. Comm., 50 Cal.2d 360, 364, 325 P.2d 993.) A claim of serious and wilful misconduct raises issues of law as well as of fact. Issues relating to the credibility of witnesses, the persuasiveness or weight of evidence, and the resolution of conflicting inferences are questions of fact. 'But as to what minimum factual elements must be proven in order to constitute serious and wilful misconduct, and the sufficiency of the evidence to that end, the questions are of law.' (Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 115, 251 P.2d 955, 961.) Petitioners assert that the commission has erroneously construed the law and that its findings are without evidentiary support.

In a general way, Safety Order No. 2603 prohibits employers from requiring employees to work in proximity to high voltage lines and prohibits movement of equipment within 6 feet of such lines unless described safety procedures are followed. In Labor Code section 4553.1, adopted in 1959, the Legislature has specified with some precision the findings which are indispensable to an award for serious and wilful misconduct based upon safety order violations. Among these is knowledge of the safety order. 1 The commission found specifically that Polander, the employer, had no knowledge of any safety order applicable to the work. Petitioners argue that Polander knew of a prohibition against operation of cranes within 6 feet of high voltage lines; hence comparable knowledge of a like prohibition in the transportation of a harvester should be imputed to him; that the commission's refusal to impute knowledge is unreasonable in view of the direction for liberal construction and resolution of doubts in the employee's favor. (Lab.Code, sec. 3202; Madin v. Industrial Acc. Comm., 46 Cal.2d 90, 93, 292 P.2d 892.)

An award for serious and wilful misconduct is 'of the nature of a penalty.' Such an award can be sustained only if the evidence establishes and the commission finds every fact essential to its imposition. (Mercer-Fraser Co. v. Industrial Acc. Comm., supra, 40 Cal.2d at p. 108, 251 P.2d at p. 957.) Here the commission has found that the employer was unaware of the safety order invoked by the claimants. There are some areas of the law in which the courts will impute knowledge or impose constructive knowledge in order to prevent unjust results. (See Civ.Code, sec. 19; Hayward Lumber & Inv. Co. v. Orondo Mines, 34 Cal.App.2d 697, 703, 94 P.2d 380.) In section 4553.1, however, the Legislature has used the word 'known' in the sense of actual awareness. There is nothing in the statute to justify the belief that the Legislature was speaking in terms of imputed or constructive awareness. (Cf. Mason v. Case, 220 A.C.A. 169, 179-180, 33 Cal.Rptr. 710.) To be sure, the statute relieves an employer from the burden of ascertaining what safety orders apply to his business. It rewards his ignorance and penalizes his knowledge. Nevertheless, such is the legislative choice. What the statute requires is knowledge in fact of a particular safety order. The evidence here did not establish such knowledge on the employer's part. Rather it established his ignorance. Because of his ignorance, the statute prohibits an augmented award based on safety order violation. (S...

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