Mercer-Fraser Co. v. Industrial Acc. Commission

Decision Date06 January 1953
Docket NumberMERCER-FRASER
Citation251 P.2d 955,40 Cal.2d 102
CourtCalifornia Supreme Court
PartiesCO. v. INDUSTRIAL ACC. COMMISSION (four cases). Sac. 6238-6241.

Gardiner Johnson, Roy D. Reese and Samuel C. Shenk, San Francisco, for petitioner.

Edmund J. Thomas, Jr., T. Groezinger, P. H. McCarthy, Jr., F. Nason O'Hara, Herbert S. Johnson and Alfred C. Skaife, San Francisco, for respondents.

SCHAUER, Justice.

In these four consolidated matters petitioner corporation seeks review of awards, made by the Industrial Accident Commission, of increased benefits assessed against it under the provisions of section 4553 of the Labor Code, 1 upon the theory that it was guilty of serious and wilful misconduct. 2 We have concluded that although we assume the sufficiency of the evidence to support findings which would sustain awards upon the issue of serious and wilful misconduct, petitioner is correct in its contention that the findings made by the commission do not support the awards, in that they disclose that such awards are based upon an erroneous and untenable concept of the law. We conclude further that the individual respondents' objections to the jurisdiction of this court to entertain these proceedings on their merits cannot be sustained, and that the awards should be annulled.

In June, 1948, four employes of petitioner were injured, two of them (Soden and Epping) fatally, when the prefabricated parts of a building being constructed by the employer collapsed and fell while the employes were working thereon. The record shows that the commission made a conclusional finding that the employer was guilty of serious and wilful misconduct and that this conclusion is based on various primary findings, including a finding that the employer's general superintendent knowingly and wilfully failed and englected to properly and adequately brace and guy the prefabricated parts of the building being erected, 'so as to prevent' the fall or collapse thereof during the construction. The record also discloses, as will subsequently be shown in some detail, that the commission was of the view that the petitioner was bound under an absolute duty to preserve the safety of the employes, at least to the extent that it was humanly possible to foresee and guard against danger, and that any failure to maintain such standard of safety, whether negligent or otherwise, constituted serious and wilful misconduct.

Petitioner urges that the awards are unreasonable and arbitrary and are not supported by the findings, that the findigs are not supported by the evidence, and more particularly that the commission has by the findings and awards unlawfully imposed upon petitioner a responsibility to insure (i. e., preserve absolutely) the safety of its employes or be subject to the increased assessment under section 4553.

It must be recognized at the outset that the statute in question does not make the employer an insurer of safety and that it does not authorize the additional award upon a showing of mere negligence, or even of gross negligence. Under the provisions of section 4553, the awards of increased benefits can be sustained only if the employes were 'injured by reason of the serious and willful misconduct' (italics added) of the employer, and where as here, the employer is a corporation, such misconduct must be 'on the part of an executive, managing officer, or general superintendent' of the employer corporation. (See Cal. Shipbuilding Corp. v. Industrial Acc. Com. (1947), 31 Cal.2d 278, 279, 188 P.2d 32.) Imposition of the increased award upon evidence showing (or a finding of) conduct any less culpable than that specified by the statute would constitute an unlawful taking of the property of one person and an unwarranted giving of it to another. An award of the type here involved, although denominated and regarded for some purposes as 'increased compensation,' is actually of the nature of a penalty (Campbell, 'Workmen's Compensation, § 423, p. 381; cf. E. Clemens Horst Co. v. Industrial Acc. Com. (1920), 184 Cal. 180, 192, 193 P. 105, 16 A.L.R. 611), and cannot be insured against (Ins.Code, § 11661 3). Such an award, therefore, and be sustained only if the evidence establishes and the commission finds, directly or impliedly, every fact essential to its imposition.

Since in interpreting the law (sepcifically, the meaning of the words 'serious and wilful misconduct') we must concern ourselves with its impact upon employes as well as upon employers, it should be noted that, with certain statutory exceptions, the Legislature has seen fit to penalize employes as well as employers for 'serious and wilful misconduct.' 'Where the injury is caused by the serious and wilful misconduct of the injured employee, the compensation otherwise recoverable therefor shall be reduced one-half * * *' (§ 4551). It cannot be seriously disputed that the words 'serious and wilful misconduct' must be given the same meaning in section 4551 as they have in section 4553. As has been heretofore declared, 'There is no difference in principle between the degree of care required of an employer and that exacted from an employee' in determining whether serious and wilful misconduct occurred (see Campell, 'Workmen's Compensation,' § 393, p. 363; E. Clemens Horst Co. v. Industrial Acc. Com. (1920), supra, 184 Cal. 180, 188, 193 P. 105, 16 A.L.R. 611; Parkhurst v. Industrial Acc. Com. (1942), 20 Cal.2d 826, 831, 129 P.2d 113). In other words, acts of the employer, to constitute serious and wilful misconduct which would warrant increased compensation must be of no less moment, in the relative circumstances, than the acts of an employe which would warrant reduction of his normal compensation. In determining, then, whether the managing superintendent of petitioner was guilty of serious and wilful misconduct which would justify increasing the award for other injured employes we must also consider that such misconduct, if the same accident injured the superintendent, would require reducing the normal award to him.

In order that the general principles of the law, which we hereinafter undertake to state with such comprehensiveness as appears practicable, may be clearly understood in their application to this case, it seems desirable to first relate the facts with considerable detail.

The prefabricated wooden structure here involved was one of three units, A, B, and C, being constructed by petitioner for the Hammond Lumber Company. Hammond supplied the materials and hardware and prefabricated the lumber, and petitioner supplied the construction 'know-how' and the men for the job. Each unit, when completed, was to be approximately 500 feet long in a north-south direction and 192 feet wide. Units A and B, standing side by side, were up and all of the bracing, except for the roof panels, was in. The accident occurred during the construction of unit C, which was situated to the north of, and adjacent to, unit A, and was to be attached to the latter unit (i. e., the south end of C was to be attached by trusses to the north end of A) to form one continuous building 1,000 feet in length. C was not commenced as an extension of A; rather, petitioner began the erection of C at its most northerly end, raising and extending columns and trusses in a southerly direction until C reached the junction point with A.

Each unit was erected with 14-inch square timber columns standing vertically on concrete footings. The columns were spaced some 60 feet apart along the length of each unit and 63 1/2 feet apart along the width, thus forming rectangular areas (termed bays) throughout the unit. Prefabricated wooden trusses, 60 feet long (designated as longitudinal or wall trusses), were mounted on top of each pair of columns along the length of the unit to span the space between columns, and similar trusses, some 63 1/2 feet long (designated as transverse or roof trusses), were mounted on top of each pair of columns across the width of the unit.

According to the design of unit C, the framework when completed would have had longitudinal knee braces connecting the several columns with the longitudinal trusses each column supported. Also each column would have had transverse knee braces and transverse sway braces connecting each column to the transverse trusses which it supported. These braces were designed to give the structure support and stability against the pressure of external forces.

The method of erecting the three units appears to have been as follows: An initial bay or square (defined by the four columns on its four corners) was erected, with each of the four columns 'guyed' to erection towers and also '(G) uy lines (were put) out, * * * cross lines * * * Inside and outside * * * So it was braced in a square * * * (I)t would be crossed inside, criss-crossed, and also externally outside'; longitudinal and transverse trusses were then set on top of the columns; the initial bay was made the 'Anchor block for the rest of the building clocks (or bays),' which were not braced the same as the initial bay; in addition to the guying and bracing of the initial bay, guy lines atached to 'deadmen' (objects serving as anchors buried in the ground) were secured to columns along the external sides of the structure.

On the day unit C collapsed all of its columns were up except for two bays to be constructed at the northwest corner, and all trusses were in place except the longitudinal trusses which were to complete the connection between C and A. Installation of the bracing required by the plans and specifications had been commenced but only one set of four sway braces attached to one column and the two trusses it supported at the north end of C had been completely attached. A crew (including the injured employes Walsh and Epping) working under foreman Hoffman were installing a sway brace at the northern end of C and making roof panels, and another crew (including...

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