ROGERS MATERIALS COMPANY v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Third District, California.

ROGERS MATERIALS COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Roger L. Drake, respondents.

Civ. 10915.

Decided: February 03, 1965

Mullen & Filippi, by William J. O'Neill, Jr., Sacramento, for petitioner. Everett A. Corten, Rupert A. Pedrin, I. A. C., Magee, Ott & Haywood, San Francisco, for respondents.

The Industrial Accident Commission found the employer guilty of serious and wilful misconduct causing the employer's injury and awarded the latter the additional compensation provided by Labor Code section 4553.1 The employer seeks to annul the award.

The employee, Roger L. Drake, was the driver of a concrete mixer truck owned by the employer. The employer operated a number of these trucks, including two of the model driven by Drake. At the end of each day the drivers were required to wash the cement dust from their trucks. At one point during the washing operation Drake was on his truck, standing on a small platform between the concrete mixer drum and the rear of the truck cab. The mixer drum was rotating as Drake washed the truck. His right trouser leg was only a few inches from the moving sprocket and chain which operated the drum. The chain was unguarded. His trouser leg was caught by the moving chain and he was injured. The referee found: ‘The injury was proximately caused by the serious and willful misconduct of the employer, in requiring and permitting the applicant to be in a position of known and obvious danger, without taking any precautions for his safety, and in failing to provide and use a guard over and about a certain chain and sprocket reasonably adequate to render safe applicant's employment in proximity thereto.’

This finding was confirmed by the Industrial Accident Commission in denying reconsideration of the award directed by the referee.

Photographs of the truck are in evidence. A space of two to three feet separates the rear of the truck cab and the closed end of the mixer drum. (Dimensions are only approximate since we do not have a scale representation.) Some of this space is occupied by a vertical metal frame on which a cylindrical water tank is mounted. The water tank sits horizontally at right angles to the truck bed and at a level slightly above the roof of the cab. On the left side of the truck a metal ladder, perhaps 10 or 12 inches wide, extends upward from the truck bed to a point about halfway up the side of the frame. A narrow, horizontal metal platform connects the top of the ladder to the frame. On the truck bed at the base of the frame, between the frame and the drum, is the power unit and lower sprocket which rotate the drum. When the drum is revolving, a drive chain moves in an upward direction around a large sprocket on the drum. There is a guard on the lower sprocket, but it ends at a point below the metal platform. At the level of the platform the chain is unguarded. With use, the chain had a tendency to stretch and flap. A representative of the truck manufacturer testified that this truck was no different than others of this same model.

Drake testified that he climbed the metal platform, hose in hand, to fill the water tank. After the tank was filled, he commenced to wash the truck, hose in one hand, a long-handled brush in the other. He testified that it was difficult to wash the top of the truck from the ground, that he always did it while the mixer was revoling. He said he knew of no instruction to the contrary. He testified that Mr. Lowry, the batch superintendent, under whose supervision he worked, had seen him on the platform every day with the drum in motion. Although he had been on this job only a month, he had approximately three years' experience driving concrete mixer trucks.

Howard Lowry, the employee's supervisor, testified that he had instructed Drake and the other drivers never to stand on the platform while the mixer was rotating; that the top part of the drum exterior could be washed, the driver could then get down, turn the drum over and then complete the job. He admitted having seen Drake on the platform while the drum was rotating and that he had merely told Drake to ‘be careful.’ Mr. Lowry had no knowledge of Safety Order No. 3545 of the Department of Industrial Relations requiring guarding of the chains of sprocket and chain drives which are located within seven feet of the floor or other working level.

Serious and wilful misconduct is not to be equated with negligence or even gross negligence. Rather, it is ‘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, * * *.’ (Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 120, 251 P.2d 955, 964; Hawaiian Pineapple Co. v. Industrial Acc. Comm., 40 Cal.2d 656, 662–663, 255 P.2d 431.) ‘When an employee is ordered to work upon a piece of machinery in such a manner that he will probably be injured if the machinery is started, and nothing is done to protect him against this hazard, the commission is justified in finding that he has been ‘intentionally subjected to known, serious, unnecessary and unreasonable hazards' and that the employer is thus guilty of serious and willful misconduct.’ (Keeley v. Industrial Acc. Comm., 55 Cal.2d 261, at p. 268, 10 Cal.Rptr. 636, at p. 639, 359 P.2d 34, at p. 37; Henry J. Kaiser Co. v. Industrial Acc. Comm., 81 Cla.App.2d 818, 829, 185 P.2d 353.) As we interpreted the Mercer-Fraser definition of serious and wilful misconduct in Dowden v. Industrial Acc. Comm., 223 Cal.App.2d 124, at page 130, 35 Cal.Rptr. 541, it includes these three alternatives: (a) a deliberate act for the purpose of injuring another; (b) an intentional act with knowledge that serious injury is a probable result; or (c) an intentional act with a positive and reckless disregard of its possible consequences.

In this case, according to the commission's findings, the employer's misconduct consisted of ‘requiring and permitting’ the employee to be in a position of known and obvious danger without safety precautions. The two terms—requiring and permitting—are far from synonymous. Indeed, in relation to the concept of serious and wilful misconduct, they should usually lead to opposite results. Requiring denotes a command or instruction moving from giver to recipient, implying the former's deliberation or intent and the latter's obligatory or nonelective action. Permitting denotes acquiescence by one party, permissive or optional conduct by the other. The concept of ‘wilfulness' laid down in Mercer-Fraser demands that the employer engage in intentional conduct, either with knowledge of probable injury or with a positive and reckless disregard of possible injury. Requiring the employee to be in proximity to peril is consistent with this concept. Permitting the employee to indulge in perilous conduct when safe conduct is available is inconsistent with it.

The courts have sustained awards for serious and wilful misconduct where the employer ordered or sent the employee into a situation where bodily contact with moving machinery was an obvious danger. (Keeley v. Industrial Acc. Comm., supra; Henry J. Kaiser Co. v. Industrial Acc. Comm., supra.) Such decisions supply no precedent where the employer does no more than acquiesce in the employee's voluntary choice of conduct.

The commission's finding of serious and wilful misconduct thus couples two clashing characterizations, one of which is inadequate to support the award. The finding does not demonstrate with certainty just what acts or omissions the commission viewed as justification for the award. Uncertainty in the findings is not necessarily fatal if it can be remedied by reference to the record. (Keeley v. Industrial Acc. Comm., supra, 55 Cal.2d at p. 271, 10 Cal.Rptr. 636, 359 P.2d 34.) The evidence, however, furnishes no support for an award based upon the theory that the employer required or ordered Drake into the proximity of the moving, unguarded drive chain.

We have searched the transcribed oral testimony in vain to find evidence that Lowry, the employer's representative, ordered or sent Drake onto the platform while the concrete drum was in motion. There was a conflict at one point, Lowry testifying that he told Drake not to wash the mixer while it was turning and Drake denying knowledge of such an instruction. At another point, however, Lowry's testimony parallels that of Drake; both testified that Lowry had seen Drake on the platform while the drum was in motion and had not ordered him off. Lowry conceded that he had seen Drake in proximity to the rotating drum and had merely warned him to ‘be careful.’ Drake stated explicitly that Lowry had given him no instructions as to the manner of washing the truck. Such evidence does not establish a command or requirement that Drake enter the area of danger. Viewed in the light most favorable to the award, it does nothing more than establish the employer's acquiescence in a dangerous practice selected by the employee himself. It sustains the finding that the employer tolerated or permitted the practice, not that he required it.

Doubtless there are situations where commands exist by implication, where the employer sets a task which may be accomplished only by the employee's exposure to danger. Such a description does not fit this case. Drake testified that he could not wash the top of the truck while standing on the ground. He did not explain why the drum had to be in motion as he stood on the platform. Lowry's testimony demonstrated that it did not. The top part of the truck could be washed from the platform while the drum was motionless. The driver could then dismount, turn on the power, rotate the drum a half revolution, switch off the power and remount the platform to wash the rest of the truck. Thus the intrinsic character of the task did not necessarily subject the employee to peril. In substance, the testimony revealed that the employee had chosen a dangerous method of doing the work when a safe one was available; that the employer condoned but did not order the dangerous method; that the employer had merely permitted, not required, the employee's exposure to danger.

The sufficiency of the evidence to measure up to the standard of serious and wilful misconduct is a question of law, open to judicial review. (Mercer-Fraser Co. Industrial Acc. Comm., supra, 40 Cal.2d at p. 115, 251 P.2d 955.) The commission's finding that the employer permitted the employee to be in a position of danger falls short of the Mercer-Fraser definition of serious and wilful misconduct and does not justify the award. The finding that the employer required the employee's proximity to danger is without substantial support in the evidence. Consequently the award must be annulled.

Petitioner urges that the award violates Labor Code section 4553.1 because there is no evidence that the employer had knowledge of Safety Order No. 3545.2 Petitioner cites Wolters v. Industrial Acc. Comm., 223 Cal.App.2d 136, 145–146, 35 Cal.Rptr. 549, arguing that the commission cannot fasten an employer with liability for a safety order violation by findings which ignore the safety order and the requirements of section 4553.1. Petitioner misinterprets the Wolters case. If an employer is guilty of serious and wilful misconduct independently of a safety order, section 4553.1 does not permit him to invoke his own ignorance of a safety order in order to insulate himself from the penalty award. In such a case the safety order is not at the focal point of serious and wilful misconduct; rather, it is a coincidence. In the present case the commission did not rely on the safety order, and the award stands or falls without reference to Labor Code section 4553.1.

The award of additional compensation is annulled.

FOOTNOTES

1.  Labor Code section 4553 provides in part: ‘The amount of compensation otherwise recoverable shall be increased one-half where the employee is injured by reason of the serious and willful misconduct of any of the following: ‘(a) The employer, or his managing representative.’

2.  Labor Code section 4553.1 provides in part: ‘In order to support a holding of serious and willful misconduct by an employer based upon violation of a safety order, the commission must specifically find: (1) That the safety order was established as having been known to a particular identified and named person or persons, either the employer or a representative of the employer designated by Section 4553.’

FRIEDMAN, Justice.

PIERCE, P. J., and VAN DYKE, J. pro tem., concur.