28 P.2d 919 | Cal. | 1934
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *701 THE COURT.
On application to the District Court of Appeal the award of the Industrial Accident Commission involved herein was affirmed, but by a divided court. We granted a petition to have the cause transferred to this court that we might give the majority and minority opinions rendered in the District Court of Appeal further consideration and study. Upon re-examination of the case, we are of the opinion that the majority opinion correctly states and applies the law applicable to the facts here. We, therefore, approve the same and adopt it as the opinion of this court. It was prepared by Mr. Justice Jennings and is as follows:
"This is a proceeding in certiorari to review an order of the Industrial Accident Commission awarding compensation to J.L. Johnston for injuries sustained by him during the course of his employment with the petitioner. The order of the commission awarded to the injured employee the sum of $1324.70 to be paid by the insurance carrier and an additional amount of $662.35 against petitioner based on a *702 finding of serious and wilful misconduct on the part of petitioner. That part of the order awarding additional compensation against petitioner is sought to be annulled by this proceeding.
"Respondent J.L. Johnston was employed as a pumper by petitioner, a corporation, which is engaged in the business of producing oil in Kern County, California. On December 5, 1929, Johnston ascended to the roof of the belt-house of an oil derrick on a well owned and operated by petitioner for the purpose of oiling the walking-beam which was above the belt-house roof. The ascent was made by means of a ladder which extended from the floor of the derrick to the roof of the belt-house. In constructing this ladder, one of the braces of the Sampson post was utilized as the righthand stringer and the ladder rungs were fastened to this brace and to a left-hand stringer composed of two-inch by six-inch timber. The brace of the Sampson post was composed of six-inch by six-inch timber. The ladder rungs were of two-inch by six-inch timber and were uniformly spaced at a vertical distance of eleven inches. The width of the ladder was 16 1/2 inches in the clear between the stringers. The ladder was not equipped with a railing nor with handholds. There was, however, a two-inch by four-inch post supporting the railing of the runway which extended along the side of the belt-house and a bolt which extended through the Sampson post 29 inches above the level of the top rung of the ladder projected from the Sampson post on the side nearest to the belt-house for a distance of two or three inches. After Johnston had completed the task of oiling the walking-beam he prepared to descend the ladder with his back thereto. He placed his right foot on the top rung of the ladder, the left foot being on the belt-house roof. When he placed his weight on the right foot preparatory to lifting the left foot from the roof to the ladder, the right foot slipped and he was precipitated a distance of approximately 18 feet to the derrick floor, sustaining thereby the injuries for which he was awarded compensation.
"The Industrial Accident Commission made the following finding: `Said injury was caused by the serious and wilful misconduct of the employer, a corporation.' The statute which authorizes the allowance of an additional award against an employer amounting to 50 per cent of the disability *703 compensation contains the following language: `Provided, that where the employee is injured by reason of the serious and wilful misconduct of the employer . . . or if a corporation, on the part of an executive or managing officer or general superintendent thereof, the amount of compensation otherwise recoverable for injury or death, as hereinafter provided, shall be increased one half.' It is undisputed that the only dereliction on the part of the employer, petitioner herein, which under the circumstances shown by the record, could justify the award of additional compensation against petitioner amounting to 50 per cent of the disability compensation consists of the failure of petitioner to provide secure handholds at the top of the ladder, heretofore described. Subdivision (f) of General Petroleum Industry Safety Order 1618, effective March 1, 1924, provides: `Secure handholds shall be provided at the top of the ladder.'
"Petitioner's chief contention is that the commission's finding that the injuries of respondent Johnston were caused by the serious and wilful misconduct of petitioner is lacking in evidentiary support. In this connection, it is urged that at most there was a purely technical violation of subdivision (f) of Safety Order 1618, whose language requiring that secure handholds shall be provided, is obviously vague and indefinite and further that there was substantial compliance with the subdivision in that the post supporting the railing of the runway, which extended along the side of the belt-house and the projecting end of the bolt which passed through the Sampson post, were readily accessible to anyone on the top rungs of the ladder and furnished convenient and adequate handholds.
"`Serious misconduct' of an employer, within the meaning of the statute permitting the allowance of compensation amounting to 50 per cent of the compensation for disability, was defined in E.Clemens Horst Co. v. Industrial Acc. Com.,
[4] "During the course of the hearing, it was suggested by petitioner's counsel that the referee visit the scene of the accident and make an inspection of the premises. This was accordingly done. What the referee observed on this visit was evidence in the case. (People v. Milner,
[5] "Furthermore, in this connection, it is to be borne in mind that, in a proceeding of this character, where this court is asked to review an award of the Industrial Accident Commission, annulment of the award is authorized only when the commission acted without or beyond its powers, or when the award was procured by fraud, or is unreasonable, *706
or when the findings of fact do not support it. The findings themselves are not subject to review except in so far as they may have been made without any evidence whatever in their support. Even then a review of the findings is based upon the theory that the commission had no jurisdiction to make a finding entirely unsupported by evidence rather than upon the theory usually presented upon appeals that findings of a trial court are lacking in sufficient evidentiary support which imposes upon the reviewing tribunal the duty of weighing evidence to arrive at a determination of that proposition. (Dearborn v. IndustrialAcc. Com.,
"It is further objected that the finding of the commission that the failure of petitioner to have provided secure handholds was the proximate cause of the injuries sustained by respondent Johnston is not warranted by the evidence. In support of the objection thus presented it is argued that the sole proximate cause of the injuries sustained was the negligence of the employee in attempting to descend the ladder in the manner in which he did as though he were descending a flight of stairs rather than by using both hands and feet in the manner which a person usually does in descending a ladder. It is pointed out that Johnston could have rendered the beginning of his descent more steady by grasping either the supporting post of the railing of the runway or the portion of the bolt projecting from the Sampson post and that by failing to do so and by stepping on the ladder facing out from it as though he were walking down a stairway he was himself guilty of negligence, which was the sole proximate cause of the fall and the injuries resulting therefrom. Respondent Johnston was questioned at length as to these matters on cross-examination. He testified that he always descended the ladder in the manner in which he began the descent on the date of the accident for the reason that the ladder was too nearly vertical to permit descent in the usual manner and that in making the descent facing out from the ladder the upright post supporting the railing of the runway was *707 behind him, making it impracticable for him to utilize it as a handhold. It further appears from his testimony that, as he prepared to descend the ladder on December 5, 1929, he held in one hand a quart can fastened to the end of a stick three feet in length and that the can contained an unspecified quantity of crude oil. The general superintendent of petitioner admitted upon cross-examination that a man descending the ladder face outward would be compelled to reach behind him in order to grasp the upright post of the runway railing but stated that he could utilize the end of the bolt protruding from the Sampson post as a handhold if he desired.
[6] "It is the general rule that the question of the proximate cause of injury is one to be determined by the trier of facts from the facts and circumstances developed by the evidence. In the instant case, it is to be remembered that the referee visited the scene of the accident and observed the ladder, its manner of construction, and the post and protruding bolt which it is claimed furnished secure handholds. As above noted, the knowledge thus acquired by the trier of facts was evidence and it may well be that this evidence in and of itself was sufficient to justify the finding that the failure of petitioner to provide secure handholds was the proximate cause of the fall and the ensuing injuries. At all events, it does not sufficiently appear from the record that respondent Johnston was negligent in attempting to descend the ladder in the manner above described nor that, encumbered as he was by the oil can in his hand, he was negligent in failing to grasp the upright post some distance behind him or the protruding bolt some distance in front of him. Furthermore, if it be assumed that Johnston was negligent in attempting to descend the ladder facing outward, it does not necessarily follow that his negligence in this regard was the proximate cause of the injuries which he sustained. The fact still remains that the ladder was not equipped with secure handholds and that the post and projecting bolt were not so readily accessible to him as to afford adequate security for his descent under the circumstances narrated.
[7] "A further contention is presented that the evidence shows that the oil well where the accident occurred had been visited on various occasions by inspectors of the State *708 Industrial Accident Commission and that such inspectors had recommended various unspecified changes which were always made, but that at no time was any recommendation made with respect to the ladder. From this it is argued that the Accident Commission in its administrative capacity, in effect, approved the ladder and its method of construction and that such approval is sufficient to obviate the charge of serious and wilful misconduct in having failed to provide secure handholds. The contention is untenable. In the first place, the evidence with respect to the visits of inspectors is too vague to support so bold an argument. More important, the duty of petitioner to comply with the safety order of the Accident Commission was one that petitioner owed directly to its employees. It is their safety which is at stake when there is noncompliance with the orders of the commission, the very object and purpose of which is obviously to insure the maximum safety to individuals engaged in the performance of work which presents unusual hazards and dangers. The Industrial Accident Commission, in its administrative capacity, possesses no authority to waive or consent to the violation of a duty owing primarily and directly to the employee from the employer.
[8] "It is further contended that the commission's findings are fatally defective in that they fail to specify what was the particular act or omission of petitioner which was concluded to amount to serious and wilful misconduct. This contention is likewise without merit. It is well established that findings are required to be findings of ultimate facts. (24 Cal. Jur., p. 968;Coit v. Western Union Telegraph Co.,
[9] "The final contention advanced by petitioner is that the finding of the commission that the injuries were caused by the serious and wilful misconduct of the employer, a corporation, is fatally defective in that it fails to state that the injuries were caused by the serious and wilful misconduct of an executive or managing officer or general superintendent of the corporation. The statute which authorizes the recovery of additional compensation provides, as heretofore noted, that where the employee is injured by reason of the serious and wilful misconduct of the employer `or if a corporation, on the part of an executive or managing officer or general superintendent' additional compensation may be awarded. It is obvious that a corporation is incapable of wilful misconduct. Wilfulness presupposes mentality. A corporation is a purely legal fiction possessing neither the physical nor mental attributes of a human being. The record herein shows that H.F. Owen was general manager of the petitioner corporation at the time the accident occurred and that from 1913 until 1929 he was superintendent of petitioner and that all properties of petitioner were under his supervision as superintendent. It does not appear from the record that, at any time material to the inquiry herein, any person other than Owen exercised any control or supervision over the oil well where the accident occurred. It is thus apparent that the only individual who could be charged with serious and wilful misconduct was the man who had entire supervision and control of the oil well. Since the commission's finding can so readily be rendered definite and certain by reference to the record, no difficulty is encountered in declaring that the finding is not fatally defective in the respect claimed by petitioner."
For the reasons stated, the award is affirmed. *710