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District Court of Appeal, Third District, California.


Civ. 8144.

Decided: March 25, 1952

Millington & Millington, Gridley, for appellant. Edmund J. Thomas, Jr., and Robert Ball, Deputies, and W. T. Dunbar, State Compensation Ins. Fund, all of San Francisco, Rich, Carlin & Fuidge, Marysville, for respondent, Industrial Acc. Commission.

Certiorari to review an award of the Industrial Accident Commission granting to the widow and dependent minor children of William E. Baggett, deceased, an award based upon serious and wilful misconduct of decedent's employer, Sutter Butte Canal Co.

Decedent was employed as a laborer by the petitioner, Sutter Butte Canal Co., which for more than 30 years has maintained across the Feather River a diversion dam for the purpose of raising the elevation of water in the river so as to discharge it into a diversion canal from which it was distributed to water users. This diversion dam was approximately 8 feet high and about 4 feet wide on top. Along the median line of the crest from shore to shore there was installed a row of steel sockets 4 feet apart, into which could be inserted steel uprights against which, and fastened to which, flash boards could be placed so as to raise the level of the river above the crest of the dam. Each year when the flow of the water in the river had subsided to the point where it would no longer flow into the company's irrigation canals in sufficient volume, these flash boards were installed. The posts extended 30 inches above the top of the dam, and the flash boards were rested against and fastened to these posts, being partly held in place by the pressure of the water above the dam. The boards were 2 x 12's, 16 feet long, and were placed two boards high. In the fall of each year, when the irrigation season had ended, the flash boards were removed. This system had been in use for more than 30 years. On September 14, 1950, Baggett, together with two other laborers and a foreman, was sent to remove the flash boards, Baggett and one other doing the work of lifting the boards out of place and carrying them to the side where they were handled by the third laborer. At the time they went to work water was flowing over the top of the flash boards to a depth of about six inches, thus giving approximately a 30 inch head over the dam when the boards were removed. When one of the top flash boards had been pried up from its position Baggett and the other laborer working with him lifted it shoulder high and started to carry it off. In so doing Baggett necessarily stepped into the current of water flowing through the place where the removed board had been, and at this point he fell and slid over the dam. The down side of the dam had a slope of 45 degrees into the water which was pooled below, and Baggett descended into this pool. He then proceeded to swim down stream and towards the bank, and when he had swum about 100 feet and was still about 15 feet from the bank he sank and drowned.

On application of the widow and minor children respondent Commission awarded the normal death benefit of $7,500, and this award is not an issue in this proceeding.

On February 5, 1951, the widow and minor children filed with respondent Commission an application for additional compensation under Labor Code section 4553, alleging that the fatal injury had resulted from the serious and wilful misconduct of the employer. The section thus invoked reads as follows:

‘The amount of compensation otherwise recoverable shall be increased one-half where the employee is injured by reason of the serious and wilful misconduct of any of the following:

‘(c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof.

‘But such increase of award shall in no event exceed three thousand seven hundred fifty dollars ($3,750).’

After hearings had been held, respondent Commission awarded the maximum amount to the applicants, and after petitioner herein had exhausted its remedies before the respondent Commission it petitioned this court for a writ of review, which was issued. It is the contention of petitioner that the evidence does not justify the findings of fact made by the Commission and that the findings of fact do not support the award.

The laborer who worked with Baggett testified that at the time the flash board was removed and was being carried away there was ‘not a great deal of rush water’ at the place where they were working, but that a man could walk through it; that the crest of the dam was not especially slick, although there were spots of moss; that during about seven years' employment by petitioner he had never heard of any employee having previously gone over the dam. The other laborer testified that the surface of the dam was not slippery, that the current of the water was ‘not still’ but also that there was ‘not too much’ rush of water; that when the flash board was pulled up there was ‘some heavy rush of water,’ and that in the two years of his employment by petitioner he had never heard of anyone slipping off the dam. A sub-foreman in charge of the working crew testified that he had been employed by petitioner since 1924, had done the job of removing the flash boards before on many occasions, and that he had never known of anyone having slipped off the dam.

A. H. Gifford, a construction engineer for the petitioner who had worked for it for 32 years, said that in all the time he had worked for petitioner there had never been a man go off the dam, and that he had never heard of anyone going off even before he started work. He testified that the State Compensation Insurance Fund had for many years sent their safety engineers over the entire system of the petitioner, including the diversion dam, and though they had at times recommended safety appliances on other parts of the system, which recommendations had been followed, they had at no time recommended that anything be done to secure greater safety in the manner of installing and removing the flash boards. He stated that no life line or life jackets were furnished to the men for the work on the dam, and that no one was stationed downstream in a boat, but he added that Baggett had said: ‘I don't want anything on. When I get out of this I don't want no obstructions. When I get in the water I want to swim.’

Respondent Commission found that Baggett's death was proximately caused by the serious and wilful misconduct of the employer ‘in that said employer wilfully and knowingly failed and neglected to provide a safe place of employment, and failed and neglected to use safety devices and safeguards to render said place of employment safe, and failed and neglected to use safety devices and safeguards to render the employment and said place of employment safe.’

It is well established that ‘the question of whether an injury has occurred by the serious and wilful misconduct of an employer is essentially one of fact, so that the Commission's determination will not be disturbed on review if it has any evidentiary support’. Chick v. Industrial Accident Commission, 107 Cal.App.2d 292, 237 P.2d 8, 11; Bethlehem Steel Co. v. Industrial Accident Commission, 23 Cal.2d 659, 665, 145 P.2d 583; Parkhurst v. Industrial Accident Commission, 20 Cal.2d 826, 831, 129 P.2d 113.

Preliminarily, we may say the respondent contends that since the panel of the Commission made a trip to the scene of the injury and viewed the conditions existing there, what they saw constituted independent evidence ‘which must be presumed to support the finding of serious and wilful misconduct.’ Citing In re Estate of Sullivan, 86 Cal.App.2d 890, 895, 195 P.2d 894, and Camicia v. Camicia, 65 Cal.App.2d 487, 150 P.2d 814. We can attach no importance to this visit of the panel since it appears that it was made on September 28, 1951, approximately eleven months after the date of the death of Baggett, and there is no showing whatever that the conditions prevailing at the dam site, so far as the head of water be concerned, were in anywise similar to those prevailing at the time of the accident. As far as the dam, the physical measurements thereof, and the method of installing and taking out flash boards are concerned, there is no dispute in the record, and nothing could be seen in addition to what is by the record disclosed, save only the passage of water over the dam, as it would be affected by varying head; and there is neither affirmative showing nor argumentative claim that the panel in respect of head saw the situation that existed at the time of the accident. Under such circumstances the rules stated in the cited authorities have no application, and this matter must be determined by the record alone.

It was said in Vega Aircraft v. Industrial Accident Commission, 27 Cal.2d 529, 533–534, 165 P.2d 665, 667: ‘Serious and wilful misconduct is conduct which the employer knew, or should have known, was likely to result in serious injury or which evinced reckless disregard for the safety of the employee.’ The misconduct on the part of the employee must be serious and wilful. (Labor Code, sec. 4553.) “Serious misconduct' of an employer must therefore be taken 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 employes.' E. Clemens Horst Co. v. Industrial Accident Commission, 184 Cal. 180, 188, 193 P. 105, 108, 16 A.L.R. 611. As to the knowledge which is thus required, it is not necessary for the evidence to show positively that the person was notified of the unsafe condition of his premises, but it is sufficient if it appears that the circumstances surrounding the act of commission or omission are such as evince a reckless disregard for the safety of others and a willingness to inflict the injury complained of. Henry J. Kaiser Co. v. Industrial Accident Commission, 81 Cal.App.2d 818, 826–827, 185 P.2d 353; E. Clemens Horst Co. v. Industrial Accident Commission, supra, 184 Cal. at page 189, 193 P. 105.

‘The test whether an act is wilful misconduct as used in section 4553 is not that the employer knew that the act would, and intended that it should, harm an employee, but rather that the employer or his managing official representative knew or should have known that the performance of the act or its omission was likely to cause harm to an employee. Parkhurst v. Industrial Acc. Com., 20 Cal.2d 826, 129 P.2d 113; Bethlehem Steel Co. v. Industrial Acc. Com., supra; Vega Aircraft v. Industrial Acc. Com., supra.

‘A given condition may be the result of facts constituting mere negligence, whereas under different circumstances it may be regarded as arising from wilful misconduct.’ Henry J. Kaiser Co. v. Industrial Accident Commission, supra, 81 Cal.App.2d at page 827, 185 P.2d at page 358.

When the foregoing rules and definitions of serious and wilful misconduct, as those words are used in the Labor Code, are applied to the facts presented by the record here (and we may say there is no material conflict found in that record), we are presented with a situation where the issue of serious and wilful misconduct or not is extremely close.

At first glance it seems that there is definite danger that an employee required to carry one end of a 2″ x 12″ x 16′ board that has been immersed in water for months, while walking along a concrete crest of a dam through water as deep as was the water through which Baggett started to walk, might well slip and be washed off the dam. And, of course, once that happened and the employee had been carried down the downstream slope of the dam and into the deep water below, his life would be definitely in danger, since even if he arrived at the downstream pool uninjured, he would have a very considerable distance to swim in order to reach the shore. Opposed to this is the employer's experience of more than 30 years during which time this same operation was performed in the same way and no one had lost his footing. In judging whether or not a situation is dangerous, experience must be considered. Was respondent Commission justified in finding that the employer knew or should have known that removing the flash boards in the way in which it had been, and was being, done was jeopardizing the safety of the men; that the act of the employer in requiring the men to work under those conditions evinced a reckless disregard for their safety and even a willingness to inflict injury upon them? Or, as it has been otherwise stated, can it be held the employer knew or should have known that the performance of the required act by the employees was likely to cause harm to them? When we turn attention to the varying ways in which the meaning of serious and wilful misconduct has been defined, it is to be noted that the language used slants towards the probability of injury and a disregard of consequences. It is interesting to note that the respondent Commission, in its opposition to the peremptory writ sought herein, suggests that the employer might have furnished life lines, but does not suggest how those life lines could have been used; suggests a row boat at the foot of the dam, and suggests that life jackets might have been used, although it appears doubtful, from what he said, that Baggett would have used one.

Despite the closeness of the issue presented here, we think it must be held that this record presents a situation where the trier of fact had within its hands the ultimate disposition of the cause, and that this court would not be justified in determining on review that the conclusion respondent Commission arrived at was not supported by the evidence. Even the long continuance of the method of removing the boards may militate against as well as for the petitioner, for if that method was unsafe, then its long use would support a finding of the very sort of heedlessness which marks serious and wilful misconduct, as those terms have been defined. What inferences were in fact to be drawn from the facts presented was, we think, to be decided by the respondent Commission, and the inferences that were drawn cannot be said to lack support. The award is affirmed.

VAN DYKE, Justice.

SCHOTTKY, J. pro tem., and PEEK, J., concur.