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District Court of Appeal, Third District, California.

GRASON ELECTRIC COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California et al., Respondents.

Civ. 10782.

Decided: February 03, 1965

T. Groesinger, Loton Wells, Patrick R. Maloney, San Francisco, Schaber & Cecchettini by Sheldon H. grossfeld, Sacramento, for petitioner. Everett A. Corten, Robert A. Borgen, San Francisco, for respondent Industrial Accident Commission. Douglas Busath, Sacramento, for other respondents.

Heretofore respondent Ruth E. Lauer began proceedings before the commission to obtain an award against petitioner based upon alleged serious and wilful misconduct resulting in the death of her husband, John Lauer. The commission's referee denied recovery, holding that Grason had not been guilty of such misconduct. Reconsideration was granted and the commission, holding that the employer had been guilty of serious and wilful misconduct, made an award in favor of Mrs. Lauer. Grason applied to this court for review of the lawfulness of the commission's decision and this court heretofore issued its alternative writ. The matter is now before us for decision.

The facts are undisputed. Grason had a contract to place light standards on certain streets according to plans made by project engineers who were not employees of Grason. The employees actually doing the work were Bruce Mayers, the foreman, John Lauer, the decedent, and Werner Schoenhoff. Approximately two weeks before the accident, Mayers called his superior, Richard Carlson, general manager of Grason, and informed him that one standard, if the plans were followed, would be placed between two high-voltage lines that were only 4 feet apart. Carlson told Mayers to stop work on that standard and to continue erecting other standards until receiving further orders. Carlson then contacted the project engineer. A study of the situation was made and as a result the base for the standard was located 10 feet 4 inches south of the original location. At this point the high-tension lines crossed the street at a 90-degree angle thereto. The lines ran east and west, the street north and south. When placed at the new location, the top of the standard would be approximately at the level of the lines and 8 1/2 to 9 feet distant therefrom. A 6-foot arm holding the lighting fixture and fastened to the pole at its top would be parallel to the lines. After the base was installed at the new location and the crew were ready to raise the standard and bolt it to its base, they placed it on the ground, approximately parallel to the lines, with its arm pointing south and away. Its lower end was close to the base. A boom truck with a 20-foot mast was positioned under the wires to raise the standard, but the foreman, Mayers, determined that hoisting the standard with the truck in that position could be dangerous. Accordingly, he moved the truck so that it was south of the base, standing at a 45-degree angle to it and with its rear-mounted mast approximately over the base. The hoisting cable of the truck was attached at a point above the standard's center of gravity so as to make it ‘bottom heavy.’ When raised it would be in a nearly perpendicular position over the base and capable of being hand-managed so that holes in its bottom flange would be in position to receive the base bolts. When the boom had been attached to the standard, Lauer took hold of the standard a few feet from the lower end. Mayers went to the other where the arm was located. The pole was lifted up high enough so that the arm swung free and pointed down. Mayers then joined Lauer in managing the base end and the lifting continued. When the standard had been raised to a nearly perpendicular position, the arm then pointing south, Lauer and Mayers proceeded to rotate the standard so that it could be bolted to the base with the arm parallel to the lines. Both men were managing the standard, both had hold of it, and as they rotated it something, no one knew what, caused it to rotate beyond a position where the arm came parallel to the lines. It came in contact with the lines, or came so near to them that the current arced to the standard. Lauer was killed. Mayers was stunned but was otherwise uninjured and recovered.

Mayers testified that he had erected five or six hundred standards in the manner above described, and that once the standard was lifted and the cinch knot tightened it was his experience that the standard would not twist of its own volition. He believed that throughout the operation the standard could be and would be kept out of the prohibited zone, that is to say, would be kept out of dangerous proximity to the lines. That was also the opinion of Carlson who, after the location had been changed, considered the standard could be erected without danger by the method being used. Charles Kleinwachter, a safety representative with the State Compensation Insurance Fund, investigated the accident immediately after it occurred. He testified that he would not have stopped the operation had he been present while the work was being done, in effect, that he considered the method used to be a safe method. The applicable safety order adopted by the Department of Industrial Relations, Industrial Safety Order No. 2603 (Cal.Adm.Code, tit. 8, sec. 2603), provides in pertinent part as follows:

‘(a) General Provisions. No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to high-voltage lines; * * * or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures * * * unless and until danger from accidental contact with said high-voltage lines had been effectively guarded against in the manner hereinafter prescribed.

‘* * *

‘(b) Clearance of Safeguards Required. The operation, erection or transportation of any tools, machinery, or equipment, or any part thereof capable of vertical, lateral, or swinging motion; the handling, transportation, or storage of any supplies, materials or apparatus; * * * over, by or near high-voltage lines, is hereby expressly prohibited, if at any time during such operation, transportation or other manipulation it is possible to bring such equipmnt, tools, materials, building or any part thereof within six feet of such high-voltage lines. Except, however, that when such high-voltage lines have been effectively guarded against danger from accidental contact, either by:

‘(1) The erection of mechanical barriers to prevent physical contact with high-voltage conductors;

‘(2) De-energizing of the high-voltage conductors and grounding where necessary;

‘(3) Removal of the high-voltage conductors; then, and only then, may the six-foot clearance above mentioned be reduced. * * *

‘(c) Warning Sign Required. The owner, agent, or employer responsible for the operations [sic] of equipment, shall post and maintain in plain view of the operator of each crane, derrick, power-shovel, drilling-rig, hay loader, hay stacker, pile-driver, or similar apparatus, any part of which is capable of vertical, lateral or swinging motion a durable warning sign legible at 12 feet reading: ‘Unlawful to Operate This Equipment Within 6 Feet of High-Voltage Lines.’

‘(d) Notification to Power Company and Responsibility for Safeguards. When any operations are to be performed, tools or materials handled, or equipment is to be moved or operated within six feet of any high-voltage line, the person or persons responsible for the work to be done shall promptly notify the operator of the high-voltage line of the work to be performed and shall be responsible for the completion of the safety measures, as required by Order 2603(a) and (b) before proceeding with any work which would impair the aforesaid clearance.’

The opinion and decision of the commission reflects the reasoning of that body on the issue of serious and wilful misconduct, and we quote therefrom the following:

‘The crew in which decedent was employed was engaged in erecting light standards for a street lighting project. One pole was found to have been located directly under high tension lines. Consultation between the project engineer and the utility district indicated it would be cheaper to move the pole than to raise the wires. The base of the pole was then shifted 10 feet 4 inchs south of the original location which was midway between 2 lines 4 feet apart. The height of he wires was unknown but believed to be 22 or 25 feet and at its top was a 6 the pole was 25 feet and at its top was a 6 foot arm bearing the lighting fixture. The pole was to be raised by a boom on a truck and the flanged base maneuvered by hand over the bolts in the receptacle in the ground. The pole was fastened by a slip knot in a nonconductive rope and was hoisted to the vertical or nearly so when installation was attempted. Decedent and the foreman commenced to push the base of the pole over the receptacle in the ground. For an unknown reason there was an electric are knocking the foreman to the sidewalk and instantly killing the decedent.

‘Based on the foregoing and all the evidence of the record the Panel is of the opinion that the employer herein was guilty of serious and wilful misconduct in ordering the decedent into a known place of danger knowing that injury would result if contact of the light pole was made with the high tension lines and by not taking precaution to protect the employee against that danger. Section 4551(c), Labor Code, Keely v. IAC, 26 CCC 15.

‘The president, the foreman and in fact all the electricians of the crew were aware of safety order #2603 which in brief prohibits working within 6 feet of high tension wires unless barricades are provided to prevent contact, or the lines de-energized. While the cause is not shown, it is a fact that the pole did twist and that it did come in contact with the high tension wires which resulted in the electrocution of the decedent. It is also the opinion of the Panel that the experienced electrical contractors knew of this potential hazard and the degree of the hazard and yet failed completely to take any precautions to prevent twisting of the pole.

‘* * * The pole was to be placed 7 feet from the lines, with a 6 foot arm within 2 to 3 feet of the lines if held vertical. If the pole tilted, which it apparently did, it could and did come in contact with the lines. The standard was lifted by a single rope. It was suspended from a single point. Therefore it could easily have been caused to rotate and tilt. The entire task of controlling the pole was placed in the hands of the deceased apprentice employee who was later assisted by the foreman. Guide ropes were not used which would have controlled the rotation of the arm of the pole.’

The commission considered that the facts showed a violation of its safety order. On this point the parties present arguments pro and con. However, we think it unnecessary to rule upon that and will assume the violation of the safety order. The violation of the safety order, like the violation of any safety statute, is prima facie proof of negligence, but it is not prima facie proof of the much graver misconduct involved in serious and wilful misconduct as those terms are used in Labor Code sections 4553 and 4553.1. What is meant by the words ‘serious and wilful misconduct’ as used by the Legislature has been the subject of a number of decisions by the Supreme Court and the district courts of appeal. Notable among these are Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 251 P.2d 955; Hawaiian Pineapple Co. v. Industrial Acc. Comm., 40 Cal.2d 656, 255 P.2d 431; Sutter Butte Canal Co. v. Industrial Acc. Comm., 40 Cal.2d 139, 251 P.2d 975; Dowden v. Industrial Acc. Comm., 223 Cal.App.2d 124, 35 Cal.Rptr. 541; Wolters v. Industrial Acc. Comm., 223 Cal.App.2d 136, 35 Cal.Rptr. 549. We quote the following from Dowden v. Industrial Acc. Comm., supra, at page 130, 35 Cal.Rptr. at page 545: ‘In that case [Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 251 P.2d 955] the Supreme Court rejected the notion that serious and wilful misconduct is the equivalent of negligence or even gross negligence. Serious and wilful misconduct, said the court, 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 * * *.’' Violation of a safety order cannot be equated with serious and wilful misconduct as a matter of law. (Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 704, 28 P.2d 919; Mercer-Fraser Co. v. Industrial Acc. Comm., supra; Simmons Co. v. Industrial Acc. Comm., 70 Cal.App.2d 664, 161 P.2d 702.) Whenever the conduct of the employer is charged as being serious and wilful misconduct, whether that conduct involves and includes violation of a safety order or not, there must still be presented by the whole record employer conduct measuring up to the definition of serious and wilful misconduct as defined in Mercer-Fraser. On the whole record before us the commission's finding of serious and wilful misconduct cannot be sustained. In the last analysis it was Mayers' conduct that is decisive. He had had extensive experience in doing the very type of work here involved. He knew the danger of working in the area of high-tension electric lines. He knew the men and the equipment with which he had been engaged in the performance of his employer's contract. He immediately recognized the danger involved in erecting the light standard at its original location. He notified his employer of that danger, and when told to change the location to a point 10 feet 4 inches south of its original point, he performed the work of doing that. For greater safety he changed the positioning of the truck from where it had originally been placed for the purpose of erecting the standard to a safer place. Throughout he showed concern and care to perform the work in such a way that no part of the standard would come within dangerous proximity to the wires. As said in Mercer-Fraser Co. v. Industrial Acc. Comm., supra, 40 Cal.2d at pages 120–121, 251 P.2d at page 964: ‘[T]he very fact that he was worried would seem to negative, rather than affirm, either an intent to harm or a wanton, positive and absolute disregard of possible harm. * * *’ Here his entire conduct negatived such intent or disregard. Mayers, in following the method of operation which he did, was, of course, conscious of the fact that throughout he would be in exactly the same position so far as danger was concerned as would be decedent. Certainly, Mayers, as he testified, believed that following his proposed method the standard would be installed without danger; and since he would be subject to injury as well as decedent if misadventure occurred, Mayers' belief in the safety of his method was held in good faith, based upon long experience with the very method itself. We find as a matter of law that on this record there was no serious and wilful misconduct on the part of Mayers, Carlson or appellant.

The award is annulled.

I am unable to agree with my colleagues. Before 1953, when Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 251 P.2d 955, was decided, the role of safety statutes and industrial safety orders in serious and wilful misconduct cases was fairly well delineated. The employer's failure to comply with a safety statute or order was not serious and wilful misconduct, either per se or presumptively; rather, the nature of the regulation and the circumstances of the accident would determine whether or not the employer's actions could properly be characterized as serious and wilful misconduct. (Bethlehem Steel Co. v. Industrial Acc. Comm., 23 Cal.2d 659, 662–663, 145 P.2d 583 (safety order); Parkhurst v. Industrial Acc. Comm., 20 Cal.2d 826, 830, 129 P.2d 113 (safety statute); Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 704, 28 P.2d 919 (safety order).) In Hoffman v. Dept. of Industrial Relations, 209 Cal. 383, 390, 287 P. 974, 978, 68 A.L.R. 294, the court stated: ‘It will be conceded that the violation of one statute may be far more serious than the violation of another statute, and that the violation of the same statute under one set of facts may not be serious, whereas under a different set of facts it will be quite serious indeed.’

The primary concern of the Mercer-Fraser decision was the employer's state of mind, that is, the degree of his deliberation in relationship to his awareness of his employee's peril. Mercer-Fraser made it plain that the judicial concept of serious and wilful misconduct would require a greater degree of deliberation and a more intense awareness of danger than had been supposed theretofore. (See also, Keeley v. Industrial Acc. Comm., 55 Cal.2d 261, 268, 10 Cal.Rptr. 636, 359 P.2d 34.) The Mercer-Fraser doctrine did not, however, change the role of safety statutes and orders from that described in earlier decisions. Violation of a safety standard fixed by regulation would or would not amount to serious and wilful misconduct depending upon (a) the circumstances and (b) the character of the regulation—such in general was the holding in the cases preceding Mercer-Fraser and such, so far as I am aware, must remain the rule today.

Before the enactment of Labor Code section 4553.1 in 1959, the employer could be charged with knowledge of a safety statute or safety order (Parkhurst v. Industrial Acc. Comm., supra, 20 Cal.2d at p. 830, 129 P.2d 113). With the adoption of section 4553.1, actual knowledge became a requisite. (See Dowden v. Industrial Acc. Comm., 223 Cal.App.2d 124, 128–129, 35 Cal.Rptr. 541.) In addition, section 4553.1 specifies various findings which must be made when serious and wilful misconduct is premised upon violation of a safety order. Except for the matter of actual versus constructive knowledge, section 4553.1 did not disturb the settled doctrine that violation of statute or order would or would not constitute serious and wilful misconduct as the circmstances and the nature of the regulation might justify. Since, in the present case, the employee's supervisor admitted actual knowledge of the safety order regulating activity near high voltage lines, the change made by section 4553.1 is of little moment here.

Here the commission found that the employer's violation of Safety Order No. 2603, under the circumstances of this case, constituted serious and wilful misconduct. I see no reason to disturb this conclusion. This safety regulation does not deal with relatively mild occupational perils such as roller towels or common drinking cups. It subject is deadly and immediate danger. Activity in the neighborhood of high voltage lines is an extreme and serious industrial hazard. Death is the usual result of physical contact with a high tension wire, directly or through a conductor. A high voltage charge may ‘arc’ across an air gap. Thus danger is present even when the conductive material does not make actual contact with the line.1 So deadly is the danger that the Legislature has attached a criminal sanction to movement of equipment or material within six feet of lines carrying more than 750 volts.2 (Pen.Code, sec. 385.) Safety Order No. 2603 expresses the same serious concern. In plain terms, it prohibits the handling of material or equipment near high voltage lines, if it is possible to bring it within six feet of such lines. It creates an exception only if specifically described safety precautions are taken (i. e., mechanical barriers, de-energizing or removal of the line), stating that then, and only then, may the six-foot clearance be reduced. The six-foot clearance is apparently designed not only to prevent unforeseen mishaps, but to supply an air gap against the arcing of an electrical charge.

As loudly and powerfully as words can do, these enactments, statutory and administrative, express a social policy regarding this ultra hazardous activity. The policy, in short, is that an employer is prohibited from taking the slightest gamble with his employee's life when the latter's work brings him into the neighborhood of high voltage lines. The prohibition against the gamble is all the more positive because the stakes ae so high. In this case the employer, represented by its foreman, took the prohibited gamble.

The distances and angles were such that it was possible to bring the metal standard not only within six feet, but into actual contact, with the high tension line during the placement operation. The foundation for the metal pole was about 8 feet 4 inches from the nearest wire. Both the top of the pole and the height of the wire were about 25 feet above ground level. A six-foot arm extended horizontally from the top of the pole. If, during the installation, the metal pole leaned too much from the perpendicular or if there were a slight leaning combined with a swing of the horizontal arm, the arm would come within much less than six feet, even into actual contact, with the high voltage line. The physical facts must have made it obvious to the foreman, as simple geometry makes it obvious now, that entry into the danger zone was ‘possible.’ Sole mechanism designed to prevent this possibility was a rope and cinch knot, tied 17 or 18 feet above the base of the pole, to which the cable of the winch truck was hooked. If the pole turned within the rope loop, if the knot slipped, sudden death would occur—as indeed it did. The safety order specifically demanded a mechanical barrier, de-energizing or removal of the line as a preliminary condition to this work. Instead, the foreman—relying on his own experience rather than the safety order—substituted the knotted rope.

That the foreman did not intend the accident, that he subjected himself to a similar degree of peril, that he believed the safeguards adequate and the peril small—these would serve as sufficient defenses in the face of less hazardous activity. (See, for example, Hawaiian Pineapple Co. v. Industrial Acc. Comm., 40 Cal.2d 656, 255 P.2d 431.) Culpability lies in the foreman's decision that the activity was safe notwithstanding the violation of the safety order. He took it upon himself to match his own judgment (such as it was) against the emphatic policy decreed by law and safety regulation. He deliberately took the gamble forbidden by law. The law should measure its penalty by the deliberation with which the gamble was taken, not the deliberation with which it was lost. “* * * Where there is a deliberate breach of a law * * *, which is framed in the interests of the working man, it will be held that such a breach * * * amounts to serious misconduct.” (Parkhurst v. Industrial Acc. Comm., supra, 20 Cal.2d at pp. 830–831, 129 P.2d at p. 116, quoting from Fidelity & Deposit Co. of Maryland v. Industrial Acc. Comm., 171 Cal. 728, 154 P. 834, L.R.A.1916D, 903.) Since violation of the safety order was not only serious but wilful, I think that the commission award should stand.


1.  In this case a witness testified to his examination of the aluminum light standard following the accident. At the top of the standard he saw discolorations which he believed to be ‘arc burns.’

2.  The lien which electrocuted John Lauer, the decedent, carried 7,000 volts.

VAN DYKE, Justice pro tem.

PIERCE, P. J., concurs.