Hawaiian Pineapple Co. v. Industrial Acc. Commission

• Decision Date: 14 April 1953
• Citation: 40 Cal.2d 656,255 P.2d 431
• Court: California Supreme Court
• Parties: HAWAIIAN PINEAPPLE CO., Limited, v. INDUSTRIAL ACC. COMMISSION et al. S. F. 18616

Page 431

255 P.2d 431

40 Cal.2d 656

HAWAIIAN PINEAPPLE CO., Limited, v. INDUSTRIAL ACC. COMMISSION et al.

S. F. 18616.

Supreme Court of California

April 14, 1953.

Rehearing Denied May 7, 1953.

Brobeck, Phleger & Harrison and Rinaldo Sciaroni, Jr., San Francisco, for petitioner.

Edmund J. Thomas, Jr., San Francisco, Leonard M. Levy, Sacramento, Alvin L. Dove, San Francisco, Johnson, Morgan, Thorne, Speed & Bamford and Robert Morgan, San Jose, for respondents.

SHENK, Justice.

This is a proceeding in review to annul an award by the Industrial Accident Commission of additional compensation to Kenneth Churchill, an employee of the petitione, purusant to the provisions of Labor Code Section 4553. An award of normal compensation is not contested. The award of $15 per week additional compensation was based upon a finding that an industrial injury suffered by the employee was caused by the 'serious and wilful misconduct' of the employer.

The employee operated a fork lift truck at the employer's cannery in San Jose. Switch tracks used by the Southern Pacific Company ran between the plant and an associated warehouse, making it necessary for lift drivers when returning from the warehouse to drive out of a doorway in the warehouse, down a short ramp, across two sets of switch tracks, up a short ramp and through a doorway into the main plant. A third set of tracks, used to 'spot' freight cars alongside the warehouse, lay between the switch tracks and the warehouse but did not extend through the ramp, being blocked off on both sides of the ramp.

At noon in May, 1950, the employee Churchill drove out of the warehouse doorway onto the ramp as a switch engine approached on his right. He did not stop his truck. Manually operated blinker lights over the doorway had not been turned on. The employee testified that he looked into a mirror reflecting a view of the tracks but that he could see only as far as the second of two box cars which were spotted alongside the warehouse wall adjacent to the ramp on his right, and that the switch tracks were clear as far as he could see. There was evidence also that the box cars shut off the view by the train crew of the fork lift truck coming out of the doorway until it was practically on the track and about eleven feet from the engine. The employee testified that he too first became aware of the engine at this point; that he speeded his motor to get across the tracks ahead of the engine, but his truck was struck in the back end and upset, causing the injuries for which the contested award was made.

Prior to and on the day of the accident there were approximately fifteen fork lift trucks in operation throughout the plant. Four of these trucks were continuously making crossings between the warehouse and the main plant. The injured employee testified that he alone had made between 20 and 50 crossings the morning of the accident. There was evidence that the switching engine passed the crossing on an average of four times a day during the period immediately prior to the accident.

The employer had taken precautions to prevent the occurrence of accidents at the crossing. Over the middle of each doorway there was placed a sign with crossed white lines and the letters 'R R' on them. In addition stop signs were posted at each doorway. Prior to the accident and following a near accident to another lift truck driver a mirror 17 by 21 inches in size was installed on the wall of the main plant opposite the doorway in the warehouse and approximately 50 feet distant therefrom, and placed in such a position that it reflected a view of the switch tracks to a fork lift driver leaving the warehouse. There was evidence that the view down the tracks afforded by the mirror was limited in some instances to no more than twenty feet, depending on the position at which one left the warehouse doorway.

It was conceded that the employer had an 'energetic safety program' and that the employer's safety committee had been instrumental in promulgating various safety rules, including one which required that fork lift operators stop their trucks before crossing the tracks. The drivers, including the injured employee, had been furnished copies of the safety rules and had occasionally been warned of the failure of drivers to stop at the crossing or of driving their trucks at top speed which varied from three to five miles per hour. However, there was evidence that for an indefinite period immediately prior to the accident the drivers had not complied with the rule requiring them to stop, despite the warnings. Their failure to comply with the warnings was attributed by the drivers to the fact that their work load, even in the slack season, required that they hurry.

In accordance with a recommendation of the employer's safety committee made in 1947 or 1948, the employer had placed a watchman at the crossing during the socalled 'operating season' at the plant, July through October of each year. The watchman acted as a look-out and gave a warning of approaching trains. One of his duties was to pull a manually operated switch which started blinker stop lights above the doorways when a train was coming. During the slack season when the accident occurred no watchman was employed, and no one was assigned the duty of sounding an alarm of an approaching switch engine. There was evidence that during the slack season the blinker lights were either not operated when a switch engine approached, or were operated by 'anybody who happened to come along.'

Although an approaching engine on all occasions rang a bell, the fork lift operators could not clearly hear it because the motor directly below the seat on the fork lift was noisy. The crew of the switch engine did not provide a flagman nor at any time did a member of the crew operate the manually controlled blinker lights in the doorways.

The injured employee filed a claim before the commission wherein additional compensation was sought under Section 4553 of the Labor Code. That section provides that the amount of compensation otherwise recoverable shall be increased one-half where the employee was injured by reason of the 'serious and wilful misconduct' of his employer. The commission found that the employer 'failed or omitted to provide and maintain proper and adequate safety devices to warn of the approach of switch engines along said railroad right of way or to adopt and use means, methods, operations and processes reasonably adequate to render applicant's employment and place of employment safe * * *.' It was determined that the injury to the employee 'was caused by the misconduct of the employer' and that the misconduct was 'serious and wilful'. The referee had found on the same facts that the injury was caused by the applicant's own 'careless disregard of the hazard of the right of way crossing' and that the conduct of the employer did not 'constitute a reckless disregard of the safety of others and a willingness to inflict the injury complained of', citing E. Clemens Horst Co. v. Industrial Accident Comm., 184 Cal. 180, 193 P. 105, 16 A.L.R. 611. However, it is for the commission, not the referee, to make the findings. Labor Code § 5953; Liberty Mutual Ins. Co. v. Industrial Accident Comm., 33 Cal.2d 89, 92, 199 P.2d 302. The questions presented relate to the sufficiency of the evidence to support the findings of the commission and to the conclusions of the commission as to serious and wilful misconduct.

In support of the commission's findings there was substantial evidence that the fork lift drivers crossed the tracks scores of times a day; that the fact that they failed to make the required stop at each crossing was condoned by the employer and made necessary by the work load; that both the view of the drivers and that of the railroad crew were limited by the location of the tracks with respect to the doorways and the spotting of freight cars near the doorways; that the size of the mirror together with the distances involved did not give a clear view of the tracks for a sufficiently safe distance; that during the slack season the blinker light was unreliable, and served as much as a trap as it did as a protection, for the reason that it was operated only by the chance of some one being present when a train approached; that the danger to which the fork lift drivers were exposed could have been eliminated, as it was in the 'operating season' by the use of a watchman, or by automatic signal, and that the employer had been so informed by one of the drivers following a near accident of the same nature as the one here involved.

The commission was called upon to apply to its findings of fact a recognized standard of conduct in order that it could further find whether the employer had failed to maintain that standard. Although this inquiry involves questions of fact, the standard itself is a matter of law. The statute defines the standard as one which requires an employer to abstain from 'serious and wilful misconduct', which expression has often been the subject of judicial interpretation by our courts. In our recent decision, Mercer-Fraser Co. v. Industrial Accident Comm., 40 Cal.2d 102, 251 P.2d 955, this problem was considered at length. It was held that 'serious and wilful misconduct' denotes a greater degree of culpability than mere negligent or even grossly negligent conduct. It was pointed out that the additional award was actually in the nature of a penalty; that it cannot be insured against; and that its imposition upon evidence of conduct any less culpable than that specified by the statute would constitute an unlawful taking of the property of one person for the benefit of another. In arriving at the legislative intent in phrasing the statute other decisions were considered which had attached meanings to the following similar terms, many employing the element of wilfulness: 'willful and wanton negligence', 'wilful negligence', 'wanton and willful...