PARKHURST v. INDUSTRIAL ACC COMMISSION ET AL

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District Court of Appeal, Second District, Division 1, California.

PARKHURST v. INDUSTRIAL ACC. COMMISSION ET AL.

Civ. 13335.

Decided: February 11, 1942

William J. Currer, Jr., of Los Angeles, for petitioner. Everett A. Corten and J. Gould, both of San Francisco, for respondent Industrial Accident Commission.

Petitioner, William R. Parkhurst, seeks to have reviewed a decision of the Industrial Accident Commission wherein he was denied additional compensation by reason of his claim that his disability resulted from serious and willful misconduct on the part of his employer. The facts are not in serious dispute, and as gathered from the record are that the P. J. Walker Company contracted for the construction of certain buildings and equipment at Camarillo, California. Gilmore Fabricators, Inc., by subcontract agreed to furnish and install all structural steel on the job for P. J. Walker Company. By an additional subcontract with Gilmore Fabricators, Inc., respondent J. Phillip Murphy Corporation undertook to install all structural iron work on the job, using therein materials fabricated by the Gilmore Fabricators, Inc.

Early in the year 1938 Mr. J. Phillip Murphy, owner of a majority of the stock of the corporation bearing his name and president and general manager thereof, went to the scene of the work. While there, Mr. Murphy noticed that the water for drinking purposes was furnished to the men on the job by means of a common dipper and bucket, and the men drank the water from the dipper by dipping it in the bucket and not by pouring. Mr. Murphy made no inquiry as to this, nor as to the ultimate source of the supply of drinking water. It does appear, however, that on one of his visits to the job he himself drank some of the water, and he at all times denied any knowledge that the same was in any manner inimical to health.

Work was started on the job in the year 1938. The water used by the workmen was piped to the job by the general contractor, P. J. Walker Company, by attaching the water line to the job to a pipe which connected the irrigation pump and a large uncovered irrigation reservoir. The water system was so connected that when a certain valve near the irrigation reservoir was opened water from the reservoir ran back through the irrigation pipe to the connecting pipe and thence to the outlets on the job. The irrigation system was so interconnected that whenever irrigation was in progress a certain amount of water from the open reservoir was siphoned back to the water supply on the job. The reservoir in question was simply an open reservoir for raising the water on the ranch surrounding the job to the highest point to facilitate irrigation. It was used by boys in the neighborhood and others as a swimming pool.

On or about June 12, 1938, petitioner was employed by respondent J. Phillip Murphy Corporation to work on the job at Camarillo as a journeyman ironworker. About June 17th, the caretaker of the ranch surrounding the job opened the valve of the reservoir and irrigated the ranch; and thereafter the caretaker proceeded to irrigate the ranch practically every Saturday and Sunday throughout the summer months. In doing this, water was siphoned from the reservoir into the water supply on the job, so that such water drawn and furnished the men on the job was polluted and contaminated by the water from the reservoir. On the job water boys drew water from taps located near the toilets on the job into buckets which were then carried to the men, who drank from a dipper used in common by all of them, by dipping the water from the buckets. The taps referred to were located just ouside the building housing the toilets, and were used by men coming from the toilets for the purpose of washing their hands. The evidence indicates that the toilets were not kept in a particularly sanitary condition, and several times overflowed, thereby creating a more or less unsanitary condition. The men on the job washed at the faucets from which water was drawn for drinking purposes, and in so doing placed their hands upon the faucets. Virgil Smith, superintendent and managing representative of respondent J. Phillip Murphy Corporation, was in charge of all the men and the work of such corporation on the job. From the inception of the work at Camarillo the men employed by respondent J. Phillip Murphy Corporation and others complained to said Virgil Smith, as their superintendent and the managing representative of respondent, concerning the water, and told him that it gave them diarrhea; that it had a foul odor and taste and was not fit to drink. No other water for drinking purposes was available at any place at or near the job which could be used by the respondent corporation's employees. However, nothing was done about the matter, and the men continued, by reason of necessity, to drink the water as furnished.

Approximately two weeks after petitioner commenced work on the Camarillo job, he began to notice a diarrheic condition, which was at first mild, and which he dismissed in his own mind as something which would probably disappear. Other men on the job had the same difficulty to a greater or lesser degree. Some of the employees refused to drink the water furnished, and carried other liquids which they consumed. At first it appears petitioner did not attribute his diarrheic condition to the water, but such condition became progressively worse, while he and other men continued to complain to the superintendent, Smith, concerning the water. Nothing was done about the matter until some time in September, 1938, when the public health authorities ordered casks installed and that the water be distributed by pouring into individual drinking cups, in conformity with the law. Stats. 1917, p. 1517, Deering's Gen.Laws, Act 6259; Stats. 1915, p. 815, Deering's Gen.Laws, Act 4725. Examination by the public health authorities of the water indicated that it was contaminated with fecal material.

Petitioner's condition grew steadily worse until January 19, 1939, when he was no longer able to carry on his duties as an ironworker and was forced to stop work. Some four or five months intervened before the doctors finally succeeded in establishing the nature and cause of petitioner's illness, which was diagnosed as amoebic dysentery.

From the record it appears that during the time work progressed on the job, and while petitioner was there employed, some 200 to 300 other men were on the job, and at the hearing before respondent commission numerous witnesses testified that various complaints, including cramps and diarrheic conditions, resulted from consuming the water supplied. Expert testimony produced at the hearing established that entamoeba histolytica, the disease germ which causes amoebic dysentery, can exist and multiply only in the human body, and that such disease is usually contracted by the drinking of impure water or water infected by the amoebae. Evidence was also introduced that a single person who is a carrier or has the disease can by infecting the water supply cause an epidemic among all persons drinking the water so contaminated. Water may be contaminated with entamoeba histolytica by contact with the fingers or by contact with fecal material.

Following a hearing had before respondent commission, the latter made two sets of findings and awards, the first of which was made on the issue of normal compensation and determined that “said employee during said period of employment was exposed to entamoeba histolytica, as the result of and in the course of his employment, and contracted an amoebic dysentery.” Based thereon, the commission made its award in favor of petitioner for normal compensation benefits. This award is not under attack, and it is conceded that respondent corporation paid and continues to pay petitioner the normal compensation awarded. On the issue of serious and willful misconduct, respondent commission on September 16, 1939, made its findings and award in favor of petitioner, reading in part as follows: “The injury herein was proximately caused by the serious and willful misconduct of the employer in knowingly failing to furnish fresh and pure drinking water to his employees as required by Chapter 485, Statutes of 1915, and the indemnity herein is increased fifty per cent, payable by said employer to the applicant herein.” Thereafter respondent J. Phillip Murphy Corporation regularly and duly filed a petition for rehearing, and respondent commission made its order that the findings and award on the issue of serious and willful misconduct of the employer be revoked and rescinded, and on rehearing substituted therefor new findings against petitioner on the issue of serious and willful misconduct, coupled with an award in favor of respondent Murphy Corporation upon such issue. The last–named findings include the following:

“2. The employee during his period of employment was exposed to entamoeba histolytica, as a result of and in the course of his employment, and contracted an amoebic dysentery.

“3. The exposure referred to in Finding 2 hereof was through the drinking water which the employee was furnished during the time that he was employed at his work. * * *

“5. By reason of the nature of the work of J. Phillip Murphy Corporation, a corporation, it is customary for this corporation to commence operations after the work of a general contractor is in progress, and facilities for the care and comfort of all employees engaged in the work have been installed by the general contractor. It is the policy and custom of J. Phillip Murphy Corporation to accept and use for its workmen, the drinking water and the method and facilities for its distribution that have been installed and are in use by the general contractor. In the instance and time mentioned, such facilities, including the provisions for drinking water and its distribution, had been installed by P. J. Walker Company, a corporation, and were in use before J. Phillip Murphy Corporation placed any of its own employees on the job.

“6. The facilities for the distribution of drinking water to workmen which were furnished by P. J. Walker Company, did not provide for the furnishing of drinking water in individual cups and there was no compliance with Statutes of 1915, page 815, Deering Act, 4725, and Statutes of 1917, page 1517, Deering Act, 6259.

“7. After defendant commenced work as subcontractor as aforesaid, and prior to the commencement of the employment of the said applicant, Mr. J. Phillip Murphy went to the scene of the work together with a representative of P. J. Walker Company and the Gilmore Fabricators, Inc., another subcontractor, for the purpose of inspecting the site and progress of the work. At the time he was there, the said J. Phillip Murphy noticed that the water for drinking purposes was furnished to the men on the job by means of a common dipper and bucket, and that the men on the job drank from the dipper by dipping it into the bucket and not by pouring. The said J. Phillip Murphy made no inquiry as to the ultimate source of the water supply and at no time made any attempt to furnish his employees, including the applicant, with pure, fresh drinking water.

“8. One Virgil Smith was an employee and the Superintendent and Managing Representative of defendant J. Phillip Murphy Corporation in charge of all of the men and work of said defendant, J. Phillip Murphy Corporation, on said job during all times mentioned herein. From the commencement of the work at Camarillo the men employed by defendant J. Phillip Murphy Corporation and others, complained to said Virgil Smith as their Superintendent and Managing Representative of defendant, of the drinking water furnished. Said employees, including applicant William R. Parkhurst, and others, complained to said Virgil Smith that the drinking water on this job had a foul odor and taste and that its use apparently caused diarrhea. Said Virgil Smith said in effect that he realized the water was bad, but no other was available. * * *

“10. No officer or representative of J. Phillip Murphy Corporation, a corporation, had any knowledge either actual or constructive, that the drinking water or the facilities for distributing the drinking water furnished to its employees on this job, was capable of producing amoebic dysentery, or was otherwise dangerous to the health of its employees.”

From a reading of the foregoing résumé of the commission's findings, it is at once apparent that the commission took the position that respondent J. Phillip Murphy Corporation was absolved of any serious and willful misconduct charged against it because “it is the policy and custom of J. Phillip Murphy Corporation to accept and use for its workmen the drinking water and the method and facilities for its distribution that have been installed and are in use by the general contractor.” We shall first give consideration to the question of whether or not the furnishing of drinking water of the type and in the manner presented by the instant case amounted to serious and willful misconduct. We are prepared to hold that when the circumstances attending the act of commission or omission are such as to “evince a reckless disregard for the safety of others and a willingness to inflict the injury complained of,” such actions amount to “willful” misconduct. “Serious” misconduct we take to mean “conduct which the employer either knew, or ought to have known, if he had turned his mind to the matter, to be conduct likely to jeopardize the safety of his employees.” E. Clemens Horst Co. v. Industrial Acc. Comm., 184 Cal. 180, 188, 189, 193 P. 105, 16 A.L.R. 611.

Upon substantial evidence the commission found not only that the employee and his fellow employees on the job were exposed to entamoebic histolytica as a result of and in the course of employment and that by reason thereof petitioner contracted amoebic dysentery, but further found that the facilities furnished the employees for drinking the water were in direct violation of the mandate of state health statutes above referred to. In addition thereto, the commission found, and the evidence supports the finding, that from the very commencement of the work at Camarillo the men employed by respondent Murphy Corporation, including petitioner herein, complained to the superintendent and managing representative of respondent corporation concerning the drinking water supplied them, advising such superintendent that “the drinking water on this job had a foul odor and taste and that its use apparently caused diarrhea”; that to such remonstrances the superintendent replied, in effect, “that he realized the water was bad, but no other was available.” In the face of the foregoing, respondent commission, however, made a further finding that no officer or representative of respondent corporation “had any knowledge either actual or constructive, that the drinking water or the facilities for distributing the drinking water furnished to its employees on this job, was capable of producing amoebic dysentery, or was otherwise dangerous to the health of its employees.” In view of the previously narrated findings, and particularly the finding of constant complaints having been made by the employees to respondent Murphy Corporation's superintendent concerning the drinking water furnished on the job from the very inception, all of which are supported by competent and substantial evidence the last–quoted finding cannot be sustained because the record is barren of any evidence to support it. As has been frequently held, the action of the commission based on conflicting evidence or on slight evidence, cannot be disturbed on appeal. On the other hand, the commission is without jurisdiction to act when and where there is a total absence of evidence to support its findings. Furthermore, we are not prepared to hold that respondent Murphy Corporation's superintendent on the job is not to be charged with knowledge of conditions which contravene health regulations contained in the statutes of this state.

In all other cases with which we are familiar the problem of serious and willful misconduct occurs in connection with a dispute as to whether there is evidence to support such a finding and conclusion of the commission. Unlike them, the converse of that question is presented in the within appeal. Here the findings are such that we are required to determine whether the commission, in the face of certain findings, has by virtue of its jurisdiction any alternative than to conclude that serious and willful misconduct must follow, as a matter of law, from certain findings. In continuing to furnish impure water, unmistakably deleterious to the health of its employees, after complaint was made to the employer and it had knowledge thereof, as found by the commission, it became the duty of the latter to determine as a matter of law that the facts so found constituted serious and willful misconduct and to make an award accordingly.

Respondent commission, however, seeks to sustain its award in favor of Murphy Corporation on the issue of serious and willful misconduct on the ground that “in accordance with custom and agreement, and, indeed, with the exigencies of the situation, the P. J. Walker Company, the general contractor, undertook to furnish drinking water and facilities for its distribution, and that the company had actually fulfilled its undertaking prior to the time the J. Phillip Murphy Corporation commenced its part of the work. When the J. Phillip Murphy Corporation came on the job, the water facilities then installed and in use were serving approximately 300 men without apparent distress to any one. * * *” The latter part of this contention is refuted by the positive and direct testimony that from the very commencement of respondent J. Phillip Murphy's Corporation's activities on the job petitioner herein and his fellow employees constantly complained not only regarding the taste and odor of the water, but of the diarrheic effects thereof. Concerning the first part of the quoted claim of the commission, we have no hesitancy in holding that an employer cannot absolve himself of his responsibility to properly protect his employees by relying upon the agreement of someone else, general contractor or otherwise, to perform that duty for him. The primary obligation to afford protection for petitioner rested upon his employer, respondent J. Phillip Murphy Corporation. The employee's only recourse under the Workmen's Compensation Act was against his employer, for neglect in affording such protection. The terms of the act impose no duty upon the general contractor to safeguard the subcontractor's employees, nor do they give petitioner herein any recourse against the general contractor, because the two did not stand in the relationship of employer and employee to each other. The employer cannot accept the facilities of the general contractor under the circumstances above described and escape the liabilities when later confronted with the ensuing consequences.

The conclusion of law arrived at by the commission reads as follows: “The acceptance and use by J. Phillip Murphy Corporation, a corporation, of the drinking water and the facilities for its distribution which were installed and in use by the general contractor, P. J. Walker Company, a corporation, before J. Phillip Murphy Corporation placed any of its own men on the work does not constitute serious and willful misconduct.” This conclusion and the award based thereon in favor of respondent corporation are not supported by either competent evidence or the findings. As stated by this court in Moquin v. Industrial Acc. Comm., 33 Cal.App.2d 511, 517, 92 P.2d 413, “The law under which the respondent commission functions in cases like this is founded upon sound public policy and with the objective of protecting, in a proper case, a workman against economic insecurity.”

For the foregoing reasons the award is annulled.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.

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