R. L. KEELEY, Jr. and Mattle J. Keeley, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, and Dennis Henry, a minor, by his guardian ad litem and trustee, Richard F. Desmond, Respondents. *
This is a review of an order of the Industrial Accident Commission awarding to Dennis Henry 50 per cent additional compensation by reason of a finding of serious and wilful misconduct on the part of his employer. The award of normal compensation is not contested.
The sole question presented is whether, under the circumstances of this case, the placing by a foreman of an employee in a position of possible danger, without providing some means of protecting such employee other than the memory of the foreman who would be the only person who would start the machinery which could injure the employee, and then starting the motor, forgetting the position of the employee, constituted serious and wilful misconduct.
In the course of his employment by petitioners, Dennis Henry was, on October 15, 1957, assigned the job of running a rice bankout wagon. The purpose of a bankout wagon is to haul rice from the harvester in the rice field to the highway and there to unload it into trucks. The wagon is not self-propelled, but is pulled by a tractor. The unloading is accomplished by two screw-type mechanisms known as augers which are run by a gasoline engine located at the front of the wagon. The tank in which the rice is contained is opened and the rice falls into the horizontal auger running lengthwise at the bottom of the wagon and is moved by this auger to the rear of the wagon and into a vertical auger contained in a pipelike structure. This vertical auger pushes the rice up and out into the truck.
On October 15, 1957, the day of the injury, respondent Henry had picked up a load at the harvester and hauled it to the highway preparatory to unloading it into the trucks. Henry left the tractor engine running, started the bankout motor, engaged the augers and opened the tank so the rice would fall into the horizontal auger. The rice started to flow but then plugged up, which it occasionally does when it backs up in the horizontal auger, and the bankout motor stopped. Henry unsuccessfully tried to relieve the congestion by restarting the bankout motor and slipping the clutch that activated the augers. Petitioners' foreman, Charles Tanner, saw from the field that Henry was having difficulty and came over to the wagon. There is conflicting evidence as to what happened thereafter.
Henry testified substantially as follows: Tanner was angry because the machine was plugged up and used foul language. At the bottom of the vertical cylinder which houses the auger there is an inspection plate or trap door which may be shoved upward within the cylinder to permit rice to drop out when it is clogged. Tanner slid this door up, exposing the clogged auger, started the motor and slipped the clutch but the rice remained plugged. Tanner stopped the motor, stuck his hand into the opening in the auger pipe and took some of the rice out. Two men then came up and wanted Tanner to straighten a header bar. Tanner left and said to Henry, ‘Continue, I'll be back soon,’ or something to that effect. Henry got down on one knee, put his hand in the opening and started drawing out the rice. After about ten minutes Henry heard the bankout motor start, and before he could get his left hand out of the pipe, the augers started to move. He shouted and the machinery stopped but his hand was caught in the auger. Henry could not see the bankout motor from his kneeling position by the pipe at the left rear corner of the wagon, nor could anyone starting the motor see Henry. The tractor engine was still running and because of its noise Henry was not aware of any cranking of the bankout motor before the bankout motor started.
On the other hand, the foreman, Tanner, testified substantially as follow: He was not angry nor did he use foul language when he arrived at the wagon. He never put his hand into the opening in the auger pipe but he did open the sliding door and turn the auger back with a pipe wrench. Then he started the motor and slipped the clutch several times. From time to time he went to the back of the wagon to see how much rice had fallen out. He knew nothing about a header bar needing straightening and did not leave the wagon until he went to get help after Henry was injured. He at no time asked Henry to do anything since there was nothing Henry could do to help. Tanner testified that he thought Henry was right behind him when he started the motor, that most of the time during the operation Henry was standing right beside him, and that he did not look for Henry each time he engaged the clutch. He testified that the accident did not happen immediately after the motor started but that he had slipped the clutch 8 to 12 times before Henry shouted.
Tanner denied he had ever used his hands to pull rice out of the clogged bankout wagon and stated that he knew it was dangerous for someone to put his hand in there and that the rice could not be removed this way. Other witnesses, however, testified that this was one method of unclogging an auger and that they had done so themselves and seen others do so.
Robert Farnsworth, a visitor to petitioner's farm, testified substantially as follows: He noticed the bankout wagon was having trouble unloading and went over to watch. On the way over he could hear the bankout motor revving up and dying down, and as he got there, it died. Tanner was trying to restart the motor and Henry was at the rear of the wagon. He squatted down near the open sliding door, talked to Henry for three or four minutes and then went to the front of the wagon. Less than a minute thereafter, Tanner got the motor started, threw in the clutch and Henry shouted. Tanner was at the wagon when he, Farnsworth, arrived, was there when he went to the front of the wagon, and, as far as he knew, had not left in the interim.
The referee found that the foreman did not intentionally try to injure Henry, but did order Henry ‘to clean the auger with knowledge that applicant's hand might be in the auger when the machinery was started, that injury might thereby result,’ that ‘no means of protecting the applicant was provided other than the foreman's memory that the applicant was there. The foreman did intentionally start the machinery knowing but foregetting that applicant's hand might be in the auger, and failing to give warning.’ The referee further stated ‘that there was some evidence of malice of the foreman toward the boy. The foreman had refused to hire him because of inexperience, and the boy obtained the job by going over the foreman's head to the employer. Also the foreman cursed the boy when the bankout wagon plugged up under the boy's operation. I did not consider, however, that the foreman had any specific wilful intent to harm the applicant. My decision was based on the theory that the foreman knowingly put the boy in a place of danger and then forgot that he was there.’ (Emphasis added.) ‘My decision * * * is based on the case of Kaiser v. I. A. C. (1947), 81 Cal.App.2d 818, 185 Pac.2d 353, 12 C.C.C. 246, wherein the facts were somewhat similar.’
The ‘Report of Panel One on Decision After Reconsideration’ states: ‘The credible testimony of Applicant and his witnesses indicates that Applicant was ordered by his foreman to clean out the auger. While he was doing so, the foreman started up the machine causing Applicant's arm to be caught therein. The case is similar on its facts to Kaiser v. Ind. Acc. Comm. (Horton) 61  Cal.App.2d 818 [185 P.2d 353].’ The commission affirmed its ‘Supplemental Findings and Award’ to the effect that Henry's injury was caused by the serious and wilful misconduct of the employer.
The Law Applicable.
Before discussing the effect of the evidence, it is advisable to recall the law applicable in a claim of serious and wilful misconduct in a workman's compensation case. In Mercer-Fraser Co. v. Industrial Accident Commission, 1953, 40 Cal.2d 102, 251 P.2d 955, referring to section 4553, Labor Code, which provides for increase of the compensation by one-half ‘where the employee is injured by reason of the serious and wilful misconduct of’ the employer or certain of his agents (which in our case would include the foreman, Tanner), the court said (40 Cal.2d at pages 108–109, 251 P.2d at pages 957–958):
‘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 wilful misconduct’ (italics added) of the employer. * * * 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 § 116613). Such an award, therefore, can 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 (specifically, 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 determing whether serious and wilful misconduct occurred (see Campbell, ‘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 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.'
The court then discusses at some length the basic and substantial difference between ‘negligence,’ ‘gross negligence,’ ‘wilful misconduct’ and ‘serious and wilful misconduct’ and ‘the elements which must control the Industrial Accident Commission and the courts in applying the pertinent statutes to the facts of particular cases' (40 Cal.2d at pages 115–116, 251 P.2d at page 961) and reviews the decisions in related types of cases dealing with the problem. It then states (40 Cal.2d at pages 119–120, 251 P.2d at page 964) ‘that conduct which both courts and legislative bodies have traditionally defined and considered to be mere negligence, however gross,’ may not be held by the Industrial Accident Commission to be serious and wilful misconduct under the workmen's compensation statutes. ‘Rather, the true rule is that serious and wilful misconduct is basically the antithesis of negligence, and that the two types of behavior are mutually exclusive; an act which is merely negligent and consequently devoid of either an intention to do harm or of knowledge or appreciation of the fact that danger is likely to result therefrom cannot at the same time constitute wilful misconduct; conversely an act deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences, cannot properly be classed as the less culpable conduct which is termed negligence.’ 40 Cal.2d at page 120, 251 P.2d at page 964.
This, then, is the test to be applied to the facts and the commission's findings in this case. In Mercer-Fraser Co. v. Industrial Accident Commission, supra, the court points out that although a finding by the commission of serious and wilful misconduct may be the finding of an ultimate fact, it is not a finding from which a court can determine the basic and essential factual elements of that finding. In our case it cannot be questioned that the basic facts upon which the commission found the serious and wilful misconduct were that the foreman knowingly placed Henry in a position of danger without protective measures and then forgot that he was there when he started the motor. This is shown by the statements in the ‘Report of Panel One’ and in the ‘Report of the Referee’ that the facts were similar to those in Henry J. Kaiser Co. v. Industrial Accident Commission, 81 Cal.App.2d 818, 185 P.2d 353, which held that the placing by a foreman of an employee in a position of danger without protective measures other than the memory of the foreman, and his forgetting the employee and thereby injuring him, constituted serious and wilful misconduct. (We will discuss the Kaiser case later.) It is this finding of the commission which is the only basic finding in the case. While there is no difference in this respect between the referee's findings and that of the commission, even though the referee found that the foreman held malice towards Henry (which, however, he found did not in fact contribute to the accident), if there were a difference or additional findings of the referee they would have to be disregarded, as ‘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.’ Hawaiian Pineapple Co. v. Industrial Accident Commission, 40 Cal.2d 656, 661, 255 P.2d 431, 434. While the referee here found against the foreman's version of the accident and also found that the foreman had some malice towards Henry, he expressly found that the foreman had no intention to harm Henry. Thus, the question (and the only one) squarely presented by the evidence and findings is, did the act of the foreman in instructing Henry to continue cleaning out the auger, the foreman knowing that Henry probably would use his hand for that purpose and that if the auger were turned while Henry's hand was in it, the foreman providing no means of protecting Henry but relying solely on his own memory not to turn on the motor, and then forgetting Henry and turning on the motor, constitute serious and wilful misconduct?
Applying the test laid down in the Mercer-Fraser case, supra, while it probably was gross negligence, it was not serious and wilful misconduct. Certainly, the foreman's act was ‘devoid of either an intention to do harm or of knowledge or appreciation of the fact that danger is likely to result therefrom * * *’. 40 Cal.2d at page 120, 251 P.2d at page 964; emphasis added. The referee expressly found that the foreman's act was devoid of intention to do harm, and the commission did not find to the contrary. While the foreman knew, of course, that if Henry's arm was in the auger when the motor was started harm would result, he had no knowledge that it would be in there at that time. This was not a situation as in the Kaiser case where the employee was in a position of danger at all times. Here even with the slide open and the motor operating Henry was in no position of danger unless he put his arm inside the cylinder, and while the foreman knew that in the operation of removing the rice from the auger the employee might be moving his hand in and out the foreman knew that there was no danger to Henry unless he, the foreman, started the motor, and unless at that very moment Henry's hand or arm was in the motor. (At most, Henry's hand if used for the removal of the rice (a stick was also used for the purpose) would only be in danger momentarily.) It would be completely unrealistic to hold that it was serious and wilful misconduct under those circumstances for the foreman to forget the fact that Henry might at the very moment the foreman started the motor have his hand in the auger. True, the foreman, before starting the motor, should have remembered the possibility of Henry then being in danger and have looked to make sure, but his failure to do so was no more than gross negligence. No element of knowledge or appreciation of that danger was then in the foreman's mind. Nor was there then present any portion of the other test provided in the Mercer-Fraser case, an act ‘intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences * * *’ 40 Cal.2d at page 120, 251 P.2d at page 964.
Applying a further test provided in the Mercer-Fraser case, were the circumstances reversed and had either the foreman or Henry placed his hand in the cylinder when the motor was about to be operated knowing but forgetting that it might be operated at any moment, and was thereby injured, would the commission or the court hold him to be guilty of serious and wilful misconduct and cut his compensation in half? The answer is no. It must be remembered that we are not dealing with compensation for an industrial injury but with a penalty imposed for conduct which goes beyond mere negligence, even though that negligence be gross. J. kaiser Co. v. Industrial Accident J. Kiser Co. v. Industrial Accident Commission, supra, 81 Cal.App.2d 818, 185 P.2d 353, the case upon which the commission based its award of the penalty here. There, the foreman placed the employee in a bin beneath a revolving screen, and forgetting he was there, started the screen revolving, thereby injuring the employee. The court held that placing the employee in that position without providing him with some protection from the possibility of the screen being revolved other than the foreman's memory was serious and wilful misconduct. There is a slight difference in the facts between the two cases. In Kaiser at all times the workman was in a position of danger, while in our case Henry was only in a position of danger when he intermittently placed his hand inside the cylinder. This difference, however, is not important. What is important is that the basic principle of Kaiser has been repudiated in Mercer-Fraser Co. v. Industrial Accident Commission, supra, 40 Cal.2d 102, 251 P.2d 955, and Hawaiian Pineapple Co. v. Industrial Accident Commission, supra, 40 Cal.2d 656, 255 P.2d 431, although in neither case was the Kaiser case referred to. That principle as quoted in Kaiser from E. Clemens Horst Co. v. Industrial Accident Commission, 184 Cal. 180, 188, 193 P. 105, 16 A.L.R. 611, is: “‘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 employees.” 81 Cal.App.2d at page 826, 185 P.2d at page 357. Mercer-Fraser says of this doctrine, ‘Such statements concerning what a ‘prudent employer's would have done ‘had it turned its mind to the fact’ obviously do not establish serious and wilful misconduct, which, as has been shown, requires an act or omission to which the employer has ‘turned its mind.’ Rather, as also above suggested, such statements indicate that the commission has held acts and omissions amounting to no more than negligence, to constitute serious and wilful misconduct.' 40 Cal.2d at pages 124–125, 251 P.2d at page 967. In Hawaiian Pineapple, the court said, ‘Likewise, a finding that the ‘employer knew or should have known had be put his mind to it’ does not constitute a finding that the employer had that degree of knowledge of the consequences of his act that would make his conduct wilful. The standard requires an act or omission to which the employer has ‘put his mind.” 40 Cal.2d at page 663, 255 P.2d at page 435. Thus, Kaiser's principle that wilful misconduct can be based upon the theory that the employer's act would be dangerous if he put his mind to it, has been expressly disapproved by the Supreme Court.
It is true that in Mercer-Fraser and Hawaiian Pineapple the facts were different than in our case, but actually the acts of the employers there were more negligent than in our case. In Mercer-Fraser, the injury to the workman was held to be due to the superintendent's mistake in judgment in believing that the wall which collapsed onto the workman needed no further guying or bracing. In Hawaiian Pineapple, the injury was due to the employer's failure to recognize that the mirror erected by him to afford his employees a view of the railroad tracks they were required to cross did not afford a view sufficiently far down the tracks to enable them to see an on-coming train in time to get out of its way. Thus, the errors in judgment of the employers in both Mercer-Fraser and Hawaiian Pineapple, which the court held not to be serious and wilful misconduct, overruling findings of the commission that they were, constituted at least as serious negligence as the forgetfulness of the foreman in our case. In Hawaiian Pineapple, the court said that even ‘A ‘reckless disregard’ of the safety of employees is not sufficient in itself unless the evidence shows that the disregard was more culpable than a careless or even a grossly careless omissing or act. It must be an affirmative and knowing disregard of the consequences.'
Here we have a piece of farm equipment which broke down in the field. The foreman opens up a trap door to enable the removal of the clogged rice. There are no facilities, and in the nature of farming, there are none, to pose signs of danger. The foreman knows that the workers, himself included, occasionally where the rice has clogged attempt to release the rice by putting their hands in the auger cylinder. He knew further that he was the only person who would operate the motor which would start the auger moving. He knew when he left the immediate vicinity of the cylinder that Henry would probably follow his example and instead of using other methods, in addition to the method of inserting the hand, which it was testified were used, would probably use his hand. He knew, of course, that if he started the motor while Henry had his hand in the cylinder, Henry would get hurt. But, while it was grossly careless of him to forget that he had left Henry in a position of danger, it cannot be said that his conduct exhibited “* * * a reckless disregard for the safety of said employee” nor was it of such a character as is required by the test set forth in Hawaiian Pineapple (40 Cal.2d at page 663, 255 P.2d at page 435): ‘A ‘reckless disregard’ of the safety of employees is not sufficient in itself unless the evidence shows that the disregard was more culpable than a careless or even a grossly careless omission or act. It must be an affirmative and knowing disregard of the consequences.' (Emphasis added.) Although the employee gets the benefit of any sum awarded, it must be remembered that we are not dealing with a question of compensation for an injury (the employee has already received this) but with a penalty placed upon the employer for an act so serious and wilful that the employer may not insure against it. Also ‘the statute works both ways—hence the importance of correctly defining its terms.’ Hawaiian Pineapple, supra, 40 Cal.2d at page 664, 255 P.2d at page 435. That is, the type of act which will cause the employer to be penalized must likewise be the type of act which would cause the employee to be penalized if performed by him. ‘It was suggested in the Mercer-Fraser case that in determining whether an employer's misconduct would justify increasing an award it would be significant to determine first whether that same misconduct would justify reducing an award made to the one responsible for the misconduct were he the injured party.’ Hawaiian Pineapple, supra, 40 Cal.2d at page 664, 255 P.2d at page 435.
We are not unmindful of the rule requiring that findings be interpreted liberally in favor of sustaining an award. Looking at the record, it is devoid of any substantial evidence that the foreman intended to do harm, or had actual knowledge of the probable consequences of leaving the employee's protection to the foreman's memory, or that he exercised an affirmative and knowing disregard for the safety of the injured employee. Also, no violation of an express statute or commission safety order designed to protect employees is involved here.
The award is annulled.
FN3. ‘Insurance Code, § 11661: ‘An insurer shall not insure against the liability of the employer for the additional compensation recoverable for serious and wilful misconduct of the employer or his agent.’'. FN3. ‘Insurance Code, § 11661: ‘An insurer shall not insure against the liability of the employer for the additional compensation recoverable for serious and wilful misconduct of the employer or his agent.’'
BRAY, Presiding Justice.
TOBRINER and DUNIWAY, JJ., concur.