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District Court of Appeal, First District, Division 2, California.


Civ. 12127.

Decided: October 09, 1942

R. P. Wisecarver, of San Francisco, for petitioner. Everett A. Corten and Dan Murphy, Jr., both of San Francisco, for respondents.

This is an application for a writ of review to have annulled an award made by the respondent commission. As will presently appear, the award under attack was predicated solely on the “serious and will misconduct” of the employer. The facts stated by the petitioner, and not controverted by the commission, are as follows:

As a part of the program for immediate and urgent expansion of shipbuilding facilities in the national emergency declared by the President, the Bethlehem Steel Company took over the old Risdon plant, which adjoins its Union Iron plant at the foot of Twentieth Street in San Francisco. As a part of this Risdon plant, there was a long shed–like structure. It had heavy steel beams for the side supports and the cross–members which supported the roof were wide and heavy, being about thirty–six inches deep and ten inches wide and were somewhat like an I beam. It was necessary to dismantle this building so that different types of structures could be erected. Accordingly, some big cranes were used to take the building apart and lower the members onto the ground at the point where they were dismantled.

There was no officer of the Bethlehem Steel Company present at the work, but the work was entirely in the charge of Mr. Scanland, its superintendent. His office was on one portion of the grounds and he exercised the general supervision over all of the work. As the work was a rush job they had many different gangs working under subforemen under him.

To remove the dismantled members from the ground it was decided to pile them on one edge of the premises, which was about fifty feet from one corner of the dismantled building. One of the gangs that was doing this work was the one in which the deceased Brinkley was working. This particular gang was very fortunate because it had several men in it who were men of long experience as steel workers, and the foreman, Goucher, had been with the Bethlehem Steel Company for many years. He was a very experienced man and highly spoken of at the hearing, both by Mr. Scanland, the superintendent, and also the safety engineers of the Industrial Accident Commission.

A large truck with driver was engaged for the work of transporting the dismantled members to the storing ground. The truck came equipped with all of the needed paraphernalia, such as side stakes and ropes and chains. The removal was aided by the use of an auxiliary mobile derrick which traveled about with the truck and lifted the dismantled steel members onto the truck, leaving the only work for the men the mere guiding and loading of the beams. The truck would hold about eight beams of the type that were being moved at the precise time of this accident. Different types of beams would have to be loaded on differently, and different types of precautions would have to be taken with the differently shaped beams or cross–members. The ones in question were, as stated above, of the large I beam type, and Mr. Goucher, the foreman, in loading it put three members on their ten–inch edge and then bound them together by laying flat on top of them another large beam. The flanges on the edge of the beam on top appeared to bind the three together as a unit, and in his judgment made it a more stable load. Two units of three each were thus bound together by the fourth one on top, making a load of eight beams.

The evidence is overwhelming that all equipment necessary for tying the load down or otherwise securing it was available to be used in any manner found necessary by the foreman and crew. There was equipment that came with the truck and there was also full equipment supplied by the Bethlehem Steel Company. The way of securing each load was dependent upon the type and shape of the members that were being transported. For instance, those that were of an uneven surface would have to be secured differently from those of the I beam type.

As these loads were being made up the truck would move from one beam to the next until the full eight beams were put on the truck by the derrick in the manner described. Some of the men were on the ground and two men worked on the truck. It was the practice that when loaded the two men who were on the truck making the load would dismount and the truck would proceed to the place of storing the discarded beams. The mobile crane would also go to the storing ground and do the unloading, in the same manner it had loaded the truck.

The evidence is that the men were not allowed to ride the load after it started to go across the lot to the place of discharge. Sometimes the distance was only fifty or sixty feet. Other times when it was at the other end of the building it would be around 400 feet. Many loads had been moved and among them some fifty or sixty loads of I beams had been taken across to the discharge place and the load in question was the last load of this type of beam. No load had shifted at all in the transfer up to that time. Mr. Goucher stated that he considered the load well secured by the interlacing of the beams as mentioned above. He stated the men were not allowed to ride on the load and that he personally had taken Brinkley, the deceased employee, off the load on two or three occasions and reprimanded him for “riding the load.” That this rule was enforced was confirmed by several witnesses.

At the time in question Foreman Goucher supervised the loading of the beams, and just as the last beam was placed in position on the load, he turned and started to go to the place of discharge. He had proceeded a short distance and was out of sight behind some obstruction when he heard the noise of the accident. Rushing back, he found that the truck had followed its usual course, which it had taken many times across the lot onto an old roadway in the lot and, in turning onto this roadway, a portion of the beams had fallen off. He found out for the first time then that Brinkley and the other workman, Black, instead of getting off the load when it was finished and walking to the place of discharge, had “ridden the load”. Brinkley was fatally injured when the steel members on his side of the truck fell off.

It was shown without any conflict whatever that the truck had made the same type of turn onto this road many times with a similar load, with no untoward developments. The exact cause of this accident was never established. It was thought, however, that the load was shifted on this occasion because the inside wheels of the truck hit a chuckhole as the outside wheels mounted the road, causing an unbalanced load to occur, and some beams fell off.

Mr. Goucher stated that he had worked in the steel business for many years; that he knew that loads should be secured and he thought he had firmly secured the present load because of the width of the members and their weight and the low center of gravity. In his judgment the placing of one member flatside across the other member tied them together and held them down. The successful transportation of fifty or sixty loads without any shifting whatever confirmed his belief that he had secured the load firmly. All in all, he had taken about 100 loads off the lot with his gang. Some of the loads had to be tied down with ropes or chains because of uneven surfaces, but the beams in the particular load were flat and low and heavy and he thought were perfectly safe to ride on this flat, wide truck, particularly so when they had been interlaced with another beam on top.

He testified that he had told the men not to ride the load after it was fully loaded and that he had personally put Brinkley off the load several times when he persisted in riding. On the occasion in question he didn't see him riding because he had turned and started away just before the load started. They were landing the last girder on the truck as he turned about to go to the point of discharge. He stated that ordinary side stakes would not hold a heavy load like this after it starts to shift and that it could only be held down after it starts to shift by some sort of chain or ropes. That he loads each load according to his best judgment as to how to secure them.

Basing its award on said facts the commission made the award under attack. It provides in the second division, in part, as follows:

“2. Said injury herein was proximately caused by the serious and wilful misconduct of the employer herein, as follows:

“(a) That at the time of the injury and death sustained by the deceased employee herein, the employer, through its executives, managing officers and general superintendents, did knowingly and wilfully fail, refuse and neglect to provide and furnish the deceased employee, in his said employment, with safe equipment, properly secured against displacement.

“(b) * * * did knowingly and wilfully fail, refuse and neglect to secure against displacement loads transported by truck.

“(c) * * * did knowingly and wilfully permit and require workmen, including the deceased employee, to ride on loads transported by truck, which load or loads were likely to and did shift, topple over and become unstable, thereby proximately causing death to the deceased employee.

“(d) * * * did knowingly and wilfully fail, refuse and neglect to exercise that degree of prudence and caution which a prudent employer would have exercised in securing loads transported by truck against displacement.

“(e) * * * did knowingly and wilfully fail, refuse and neglect to exercise that degree of prudence and caution which a prudent employer would have exercised in permitting and requiring workmen to ride on loads transported by truck, which load or loads were likely to, and did, shift, topple over and become unstable.

“(f) * * * did knowingly and wilfully fail, refuse and neglect to comply with Construction Safety Order 1168, subdivisions (d) and (e) thereof, issued by the Industrial Accident Commission of the State of California, and in full force and effect at the time of, and prior to, the injury and death as found herein, towit:

“Order 1168. Transportation by Trucks.

“(d) Workmen shall not ride on top of loads that may shift, topple over, or become unstable.

“(e) All loads shall be secured against displacement.”

The petitioner asserts that the facts above recited may possibly constitute negligence on the part of Mr. Goucher but that they do not show “serious and wilful misconduct” on his part nor on the part of his employer. Parkhurst v. Industrial Acc. Comm., 20 Cal.2d 826, 129 P.2d 113; Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35; Hyman Bros., etc., Co. v. Industrial Acc. Comm., 180 Cal. 423, 181 P. 784; Howard v. Howard, 132 Cal.App. 124, 22 P.2d 279. In the case last cited, 132 Cal.App. at page 129, 22 P.2d at page 281, it is stated: “Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.” That passage has been cited and followed in many cases and is now the settled rule in this state. Under its provisions the facts in the instant case fail to show an act of “serious and wilful misconduct” on the part of Mr. Goucher or his employer. Labor Code, § 4553, St.1937, p. 281.

The petitioner also vigorously stresses the fact that, whatever occurred out in the yard at the time of the accident, the evidence does not show that any act of commission or omission on the part of “an executive, managing officer, or general superintendent” of petitioner was involved. Labor Code, § 4553, sub. c. The second point so stressed must also be sustained. The record shows affirmatively that no “executive, managing officer, or general superintendent” of the petitioner was present or knew of any of said facts hereinabove stated.

It was contended before the commission and is now contended that the petitioner violated “Safety Order 1168”. Among other things it provides: “(d) Workmen shall not ride on top of loads that may shift, topple over, or become unstable. (e) All loads shall be secured against displacement.” Division (d) is apparently addressed to employees. Assuming, for all the purposes of this decision, that it was addressed to employers, the record shows the employer had a rule to the same effect, which decedent violated; that, when the employer saw such violation it enforced the rule; that it never failed to do so, and, in the instant case its “executive, managing officer, or general superintendent” did not violate said rule or said order or know it was being violated.

The award under attack is annulled.


NOURSE, P. J., and SPENCE, J., concurred.

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