Opinion
Judgment modified on hearing in Supreme Court 249 P. 849.
See, also, 241 P. 912.
Curtis, J., dissenting.
John F. Poole and Charles L. Chandler, both of Los Angeles, for petitioners.
Warren H. Pillsbury, of San Francisco, for respondents.
HOUSER, J.
By this proceeding an order made by the Industrial Accident Commission is sought to be reviewed. It appears that the petitioners, Gordon, Harrison, and Russell, were copartners engaged in the business of crushing rock and excavating sand and gravel for commercial use; that in the course of the operation of the business a sand bank caved upon one of the workmen named Findley, causing injuries to him which resulted in his death; that in due time, and under the provisions of the Workmen's Compensation Act (Stats. 1917, p. 831, as amended), an application was made by the widow and the minor children of said deceased to respondent Industrial Accident Commission for adjustment of their claim against the said copartnership and its insurer, which application resulted in a final order of award being made by said commission in favor of said applicants and against the insurer in the total sum of $5,000, and a further award in favor of said applicants and against the individual members of said copartnership in a total sum of $2,500.
On petition to this court for a review of the proceedings had before said commission, several reasons are suggested as sufficient to justify an annulment of said award, the first of which being that the commission acted without, or in excess of, its powers in excluding material evidence offered by the defendants in the proceedings before the commission. Without deciding whether such point is maintainable in a proceeding of this nature (see Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56, 159 P. 150), in view of the fact that beyond a mere specification of such alleged error nothing appears in either the petition or the brief of petitioners which in any way would indicate what evidence is claimed to have been excluded, or what facts or circumstances appeared at the time such evidence was offered, it must be assumed that the point has been abandoned.
It is also urged by petitioners that there was no finding by the commission as to the amount of the average weekly or annual earnings of the deceased employee upon which the award is based. Such objection is fully met by the finding by the commission, which was based upon a written stipulation by the parties to the proceeding, that the wages of the deceased were in excess of the maximum prescribed by the Workmen's Compensation Act.
Another of petitioners' suggestions, but which is not urged, is that there was no finding by the commission as to the lack of contributory negligence on the part of the deceased employee. There was no necessity therefor. The point is covered by the provisions of section 21 of article 20 of the Constitution, as well as by sections 1 and 6(a) of the Workmen's Act. (Stats. 1917, p. 831.)
It is further urged by petitioners that the provision of the act, under which the compensation as against the individual members of the copartnership employer was awarded, is unconstitutional. In that connection it need only be said that the question is settled against petitioners' contention by the cases of E. Clemens Horst Co. v. Industrial Accident Commission, 184 Cal. 180, 193 P. 105, 16 A. L. R. 611, and De Carli v. Associated Oil Co., 57 Cal.App. 310, 207 P. 282.
The authority of the commission to award additional compensation either to an injured employee or to his dependents is contained in section 6(b) of the Statutes of 1917, page 831, as amended by Statutes of 1919, page 912, and Statutes of 1923, page 375, as follows:
" *** Where the employee is injured by reason of the serious and willful misconduct of the employer, or his managing representative, or if the employer be a partnership, on the part of one of the partners (or a managing representative or general superintendent thereof), 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, any of the provisions of this act as to maximum payments or otherwise to the contrary notwithstanding; provided, however, that said increase of award shall in on event exceed two thousand five hundred dollars."
While the total award as against the insurer was the sum of $5,000, it is claimed by petitioners that because of the fact that such award was composed of the sum of $100 allowed for burial expenses and the remainder thereof, to wit, $4,900, allowed for actual compensation, the authority of the commission under the terms of the statute was, in any event, limited to awarding to the applicants one-half of the compensation of $4,900, or the sum of $2,450.
Other than the section of the statute itself heretofore quoted herein, no authorities are cited by petitioners in support of such contention. The effect of the language of the statute is that, where the injury is the result of the serious and willful misconduct of the employer toward the employee, the amount of the compensation allowed to the dependents of the employee may be increased one-half, but in no event to exceed $2,500. In section 9 (c) (1) of the statute it is provided that:
" In case the deceased employee leaves a person or persons wholly dependent upon him for support, such dependents shall be allowed the reasonable expense of his burial, not exceeding one hundred dollars, and a death benefit, which shall be a sum sufficient, when added to the disability indemnity which at the time of death has accrued and become payable, under the provisions of subsection (b) hereof, and the said burial expense, to make the total disability indemnity, cost of burial and death benefit equal to three times his average annual earnings, such average annual earnings to be taken at not less than three hundred thirty-three dollars and thirty-three cents nor more than one thousand six hundred sixty-six dollars and sixty-six cents."
Such provisions of the statute would seem to indicate that the entire amount of the compensation, including the expense of burial and such disability indemnity as may have accrued and become payable at the time of the death of the injured employee, should not exceed the sum of $5,000. Giving effect to the last clause of the section of the statute first quoted herein, which provides " that said increase of award shall in no event exceed two thousand five hundred dollars," it is plain that if petitioners' contention as to the construction of the statute is correct, in no case, where there were any funeral expenses or any disability indemnity theretofore paid or payable at the time the award was made, could the Industrial Accident Commission have authority to increase the award in the sum of $2,500 because of " serious and willful misconduct" of the employer; in other words, even where death followed the injury, only in the event there had been no expense of burial of the employee, and no disability indemnity paid or payable to the deceased, would the commission have the lawful power to increase an award in the sum of $2,500, no matter how palpable the misconduct or how reckless of consequences had been the act of the employer toward the employee. While it may be that the statute is susceptible of such a construction, in view of the expressed possibility in the language of the act that an increase of $2,500 in the award may be made we are constrained to hold that the intention of the Legislature was to permit an increase of one-half of the total award, including an allowance for expense of burial and disability indemnity. Any other construction would have the effect of preventing the full operation of the statute.
The principal objection raised by petitioners to the award by the respondent commission consists in the contention that in awarding to the widow and the minor children of the deceased an additional benefit of $2,500 as against the individual members of the copartnership, who were the employers of said deceased, the commission acted in excess of its powers.
With respect to the claimed " serious and willful misconduct" of the individual defendants, the finding by the respondent commission was that:
" The said injury was proximately caused by the serious and willful misconduct of the employer in this: A managing representative of said partnership, to wit, Walter J. Schienle, knowingly placed the employee at work in a position where a wall of sand and gravel at least 12 feet high was hanging over him. That at said time said managing representative knew, or ought to have known, that said wall was in imminent danger of caving in upon the employee and causing either serious injury to or the death of the employee; and that said managing representative took no precaution to prevent said wall from caving in upon the employee; that said wall of sand and gravel did cave in, and the caving in thereof was the proximate cause of the death of the employee."
It will be noted that the statute provides that the serious and willful misconduct of the " managing representative" of the employer shall be sufficient reason for increasing the award as much as $2,500, and that the findings by the commission in that regard in effect are that Walter J. Schienle was the managing representative of the employer. It is not contended by petitioners that the statute is lacking in its provisions to authorize an increase in the award where the facts of the case warrant it; but it is earnestly urged by petitioners that in the instant case the evidence is wholly insufficient to justify the conclusion that under a proper construction of the phrase, Walter, J. Schienle was the " managing representative" of the petitioners; or that, in fact, his conduct in connection with the accident was such that it was properly subject to adverse criticism from a legal standpoint. However, with respect to the latter specification, an examination of the transcript of the evidence received on the hearing before the commission leads to the conclusion that it was ample to warrant the finding heretofore set forth herein, to wit, that " Walter J. Schienle knowingly placed the employee at work in a position where a wall of sand and gravel at least 12 feet high was hanging over him," etc.
That such action on the part of the employer toward an employee is sufficient to constitute " serious misconduct" is settled in the case of E. Clemens Horst Co. v. Industrial Accident Commission, 184 Cal. 180, 188, 193 P. 105, 108 (16 A. L. R. 611), where it is said:
" The first question presented is, then, Was the Commission justified in finding that the petitioner was guilty of ‘ serious misconduct’ ? There is no statutory definition of this term. In this connection we may again quote from Beven, page 401: ‘ To constitute " serious misconduct," it is probable that the Legislature intended to signify conduct that an average workman in being guilty of either would know, or ought to know, if he turned his mind to consider the matter, to be conduct likely to jeopardize his own and his fellow-workman's safety.’ In our opinion the serious misconduct of an employer under our statute may be similarly defined. There should be no difference in principle between the degree of care required of an employer and that exacted from an employee. ‘ 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."
As shown by the result, it is clear that the action of the employer in placing the employee in a position where a wall of sand and gravel 12 feet high was hanging over him was " conduct likely to jeopardize the safety" of the employee; and the finding by the commission, supported by the evidence, was that if the managing representative did not know, he at least should have known, " that such wall was in imminent danger of caving in upon the employee and causing either serious injury to or the death of the employee."
But in order that the award of the commission may stand, it is necessary that the evidence support the finding that Walter J. Schienle was the " managing representative" of the individual defendants composing the partnership which operated the plant at which the deceased was employed. The following questions and answers thereto, although not arranged in the order in which the examination took place, will serve to show the several capacities of the persons connected with the industry:
" Mr. Kingsland (the witness): Q. How many branches are there to the business? A. Mr. Russell takes charge of the production business; under him Mr. Cobb; Mr. Cobb appoints a foreman to take care of the extra work. Mr. Cobb just doesn't do any actual work himself. He just superintends and sees that everything is running.
" Q. Are there other men in that department of the same rank as Mr. Russell? A. Mr. Russell is one of the partners. Mr. Gordon takes care of the sales. Mr. Harrison the purchase of materials and such matters. ***
" Q. Well, was there any one in authority between Mr. Cobb and Mr. Schienle? A. No; there was not.
" Q. Was Mr. Cobb in authority over any other part of the business than the gravel pit where Mr. Schienle was foreman? A. No.
" Q. You spoke of Mr. Russell having charge of the production; what do you mean by having charge of the production? A. Well, we have to get out a certain number of yards of material a day and he looks after that end of it.
" Q. By material you mean sand and gravel gotten out from the pit? A. Yes, just as a supervisor, and he gives his order to Mr. Cobb what he wants done, he calls practically once a day, spends probably an hour at this particular pit. Mr. Cobb is there all the time, practically all the time except when he might be out purchasing parts.
" Q. Mr. Cobb spends his time at the pit where the accident occurred? A. Probably 80 per cent. of the time.
" Q. (to Mr. Schienle). Mr. Schienle, do you know where Mr. Cobb was at the time you gave this order? A. He was on his way up to work. I met him just as the accident happened; he was on his way up there to work. This happened at 7 o'clock in the morning.
" Q. Then at the time this happened Mr. Cobb was not on duty? A. No, sir; he was on the place but he was not there at the accident.
" Q. You were in full charge of the gang there at the time of the accident? A. Yes, sir.
" Q. And at the time the orders were given by you? A. Yes, sir. ***
" Q. The previous witness spoke of some man who was over him in authority; who was it, a member of the partnership? A. Mr. Cobb was superintendent of the production and was at the plant. ***
" Q. (addressed to Mr. Schienle). You are the foreman for Gordon & Harrison? A. Yes, sir. ***
" Q. You were in charge of that gravel pit, were you? A. Yes, sir. ***
" Q. Mr. Russell was there nearly all the time, wasn't he? A. Well, practically all the time. He would come in there and go whenever he saw fit to go around there.
" Q. You were the managing representative of Gordon & Harrison at that time? A. Yes, sir. ***
" Q. Did any member of the firm of Gordon & Harrison ever give you any instructions about working, in the presence of Mr. Cobb? A. I don't understand what you mean; I was foreman and went on with the work.
" Q. Did you ever receive any instructions from any member of the firm? A. You mean from Cobb, or the firm itself?
" Q. The employer itself. A. No, sir; I took instructions from Cobb."
It thus appears that the business of the partnership was so divided that defendant Russell was in direct charge of the production branch of the enterprise, with one Cobb as superintendent of the rock-crushing plant, and Schienle as the foreman directing the work in the gravel pit where the deceased was employed.
No " serious and willful misconduct" on the part of either of the partners is claimed to have existed. The findings by the commission place no blame even on Mr. Cobb, who is shown to have been the superintendent in charge of the rock-crushing plant. According to the findings, the entire responsibility for the happening of the accident rests on Schienle. The evidence shows that, instead of Schienle being a " managing representative" of the copartnership, he was the foreman in charge of the gang at the gravel pit; that he was working under Cobb, the superintendent of the plant, and took his instructions from him. While at the very instant that the accident occurred Schienle was the highest in authority actually at the plant of the copartnership, his duties were not of that character in the business of the copartnership that properly they may be said to rise to the dignity and importance of managing it. He " had nothing to do with the office or the sending out of the trucks." His duties consisted in " getting the material out of the hole and putting it into the bunkers; " just as a foreman of a gravel pit, operated by a railroad company for its own use, probably would have been charged with like duties. As stated in the testimony of one of the witnesses, Russell (who was one of the partners) " takes charge of the production business; under him Mr. Cobb; Mr. Cobb appoints a foreman (Schienle) to take care of the extra work. Mr. Cobb just doesn't do any actual work himself. He just superintends and sees that everything is running." And he was not " in authority over any other part of the business than the gravel pit, where Mr. Schienle was foreman."
The provision of the statute which, because of the misconduct of the employer, authorizes an increase in the award to the employee, contains what might be termed a classification of possible employers and designates the persons who, for the purpose of fixing liability of the employer, may act in his stead. The first attempted classification of employers is as to an individual, the second effects a copartnership, and the third relates to a corporation. By the terms of the statute, as to either the individual or the copartnership, the acts of the " managing representative" will be binding, as will also the acts of the " general superintendent" of a copartnership. The person whose " serious and willful misconduct" will bind a corporation must be " an executive or managing officer, or general superintendent thereof." It must be presumed that in enacting the statute the Legislature intended, so far as was practicable in the circumstances, to treat each of the several classes of employers with equal fairness and make no discrimination as to their respective liabilities, and to that end used language to describe the several persons occupying similar positions with the different classes of employers. For the purposes of the particular legislation, a " managing representative" for an individual might closely correspond to a " managing representative or general superintendent of the partnership," and a " managing representative or general superintendent of a partnership" for similar purposes would in his official duties approximately represent " an executive or managing officer or general superintendent of the corporation."
That the language of the statute is subject to a construction deviating somewhat from the ordinary meaning thereof is shown by a consideration of the case of E. Clemens Horst Co. v. Industrial Accident Commission, 184 Cal. 180, 193 P. 105, 16 A. L. R. 611, where it is ruled that the word " officer," as used in the statute, did not necessarily mean one who had been elected to his position, or even one who had been appointed in accordance with the provisions of the articles of incorporation or the by-laws of the corporation; but " that by an ‘ executive or managing officer’ was meant a person in the corporation's employ, either elected or appointed, who is invested with the general conduct and control of a particular place of the business of a corporation. "
If it be assumed, as in the Horst Co. Case, that in order to bind employers because of " serious and willful misconduct" toward the employee, the person presumed to represent the employer therein must be invested with the general conduct and control at the particular place of business of the employer, it becomes apparent that as Mr. Schienle did not possess or exercise such authority at the plant of the employer, his personal " serious and willful misconduct," as set forth in the findings by the commission, was not binding upon the partnership of petitioners.
It follows that that part of the order of the Industrial Accident Commission which awards to the applicants in the proceeding before said commission the sum of $2,500, as against the individual defendants therein, to wit, Thomas Gordon, George W. Harrison, and Charles W. Russell, should be annulled; that otherwise the award of said commission should be affirmed. It is so ordered.
I concur: CONREY, P. J.
CURTIS, J. (dissenting).
I cannot agree with the conclusion reached in the majority opinion that there was no evidence to support the finding of the commission that Walter J. Schienle was the managing representative of the petitioners. The testimony of Schienle himself was as follows:
" Q. You were in charge of that gravel pit, were you? A. Yes, sir.
" Q. And you were so placed in charge by Gordon & Harrison, the defendant in this action? A. Yes, sir.
" Q. Who gave you your instructions on those occasions when Mr. Cobb was not there? A. I know what I was to do; it was my duty to start the plant, and do that every morning. It was a common occurrence for me to start the plant and keep it going. " Q. At the time that this accident happened you were in full charge, weren't you? A. Yes, sir.
" Q. All orders concerning management of the work and starting were given by you? A. The running of the plant; yes, sir.
" Q. The whole plant and the pit? A. Yes, sir, the pit, not the plant, I had nothing to do with the office or the sending out of the trucks.
" Q. The production end of it was all under your management at that time? A. Getting the material out of the hole and putting it into the bunkers.
" Q. There was no one else in authority between you and the partners at that time, was there, on the place?
" Mr. Poole: Objected to; that is for the commission to decide.
" Mr. Backus: Russell, Gordon, Harrison, and Cobb was not there, you were in sole and complete charge of the plant, weren't you? A. Yes, sir."
Charles W. Russell, one of the petitioners, testified that:
" He (Mr. Schienle) is the foreman in charge of the pit and that sort of thing when Mr. Cobb is there, as well as when Mr. Cobb is not there. Of course, under Mr. Cobb's direction naturally."
The testimony shows without contradiction that Mr. Cobb, the superintendent, was rarely at the plant when the work started in the morning. On the day in question, he did not arrive until after the accident happened. Mr. Schienle was the sole representative of petitioners at the place where the work was being carried on that morning. He, and he alone, was in charge of the work, and as such directed the deceased to take his place in the pit, where he met his death. Under these circumstances, to hold that Schienle was not the managing representative of petitioners at the time deceased met his death, is, in my opinion, to emasculate the statute of its wise and humane purposes to protect employees from injuries sustained by reason of the serious and willful conduct of the employer. For these reasons, I dissent from the foregoing opinion.