Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n , 209 Cal. 412 ( 1930 )

I dissent.

The evidence in this case, though sufficient to sustain the compensatory award, offers no justification whatsoever for the imposition of a fifty per cent penalty for alleged serious and wilful misconduct on the part of the employer nor, in my opinion, is the case of Hoffman v. Industrial Acc. Com., ante, p. 383 [68 A.L.R. 294, 287 P. 974], S.F. No. 13510, controlling here.

The circumstances of each particular case, viewed in the light of the provisions of the Workmen's Compensation Act, must determine the question of whether the acts or omissions of an employer constitute serious and wilful misconduct, ". . . 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." (E. Clemens Horst Co. v.Industrial Acc. Com., 184 Cal. 180, 188 [16 A.L.R. 611,193 P. 105, 108].)

In this case the record shows that Mr. Patterson, the president of the employer corporation, had purchased what he considered the best machine of its type on the market; that he was not familiar with such machinery and, therefore, took the precaution to employ an experienced industrial engineer to help him and to supervise its installation. It appears that this engineer had not found a guard for the saw which was acceptable when it was in operation and, although he intended to try to guard it in some way, he knew of no absolute safeguard for it. He stated he had no hesitancy in ordering a man to operate it as it then stood. His views, of course, were followed by said employer, but, in this situation, such further steps were taken by it as Mr. Patterson felt might serve to insure the operator's safety. To this end he made certain that the operator he hired thoroughly understood saws. Not only this, but he consulted said operator on the subject. No objection was made to the saw being unguarded, but the operator did ask, as his workroom was congested, that no one else be allowed to enter it and this request was promptly acceded to.

Serious and wilful misconduct involves much more than mere negligence or even gross or culpable negligence. It contemplates actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, on the part of an employer that the thing which he is doing is wrong, coupled with a conscious failure to act to the end of averting injury; that is, it must appear that the circumstances surrounding the act or omission are such as "evince a reckless disregard for the safety of others and a willingness to inflict the injury complained of." (See E.Clemens Horst v. Industrial Acc. Com., supra, and Helme v.Great Western Milling Co., 43 Cal.App. 416, 421 [185 P. 510].)

It will be noted that in this case there is involved no intentional or wilful violation on the part of the employer of any statute or safety order of the Industrial Accident Commission because the evidence shows that it had no knowledge of any requirement with respect to further guarding the piece of machinery in question. It is also clear that in the hiring of said experienced engineer and experienced operator and in its compliance with the suggestions offered by these persons, this employer gave thought to the exercise of reasonable care for the safety of its employees. There is no evidence whatsoever of a reckless disregard for their safety. In other words, I do not believe the record before us contains any justification whatever for the finding on the part of respondent Commission of such serious and wilful misconduct on the part of said employer as should subject it to the penalty imposed. The award of the Commission to my mind, in so far as it undertakes to impose said fifty per cent additional compensation penalty, should be annulled.

Richards, J., concurred.

Rehearing denied.

Richards, J., and Preston, J., voted for a rehearing.