Opinion
Hearing Granted July 28, 1971.
Opinion on pages 1083-1097 omitted.
HEARING GRANTED
[95 Cal.Rptr. 478]Richman & Garrett and Thomas J Toohey, Los Angeles, for petitioner.
Samuelsen, Bolson, Whitehead & Benes, by C. Ringwalt, for respondent Employers Mut.Liability Ins.Co. of Wisconsin.
Rupert A. Pedrin, San Francisco, and Gabriel L. Sipos, Los Angeles, for respondent Workmen's Compensation Appeals Board.
TAMURA, Presiding Justice.
Petitioner's husband died as a result of an injury sustained in a fight with another employee. Petitioner seeks review and annulment of a Workmen's Compensation Appeals Board (Board) decision holding that the injury sustained by her husband was noncompensable because it resulted from 'an altercation' in which he was the 'initial physical aggressor.' Section 3600 of the Labor Code makes the following one of the conditions of right to compensation: '(g) Where the injury does not arise out of an altercation which the injured employee is the initial physical aggressor.'
Petitioner's husband, Mathews, was employed by respondent Western Contractors, Inc., as a truck driver on a dam construction project. It was his job to haul rocks from the point where they had been delivered to the actual construction site. On the afternoon in question Mathews was seated in his truck parked in the area where incoming trucks were delivering their loads. Cedillo, who was employed as 'dumpman' to direct incoming trucks, ordered Mathews to move his truck because it was blocking the dump area. Mathews made an obscene remark and gesture and Cedillo apparently responded in kind. Mathews descended from his truck and approached Cedillo with clenched fists; Cedillo backed up slowly, picked up several rocks, drew a line with his foot and warned Mathews not to cross; Mathews ignored the warning and continued to advance; Cedillo threw a rock at Mathews but missed; Mathews ducked and lunged forward either in an attempt to strike Cedillo or to grapple with him; Cedillo threw a second rock which struck Mathews on the forehead rendering him unconscious. Mathews never regained consciousness and ultimately died as a result of the injury. There was no evidence of previous animosity between the two.
The referee found the injury to be compensable and awarded petitioner death benefits and other items of compensation. In his opinion accompanying the award the referee observed the evidence lead to the 'inescapable conclusion' that decedent was involved in an altercation in which he was the 'initial aggressor,' but concluded the injury was nevertheless compensable.
Respondents petitioned for reconsideration attacking the referee's award on two grounds: (1) The altercation was personal and not traceable to the employment, and (2) decedent was the 'initial physical aggressor' within the meaning of subdivision (g) of section 3600 of the Labor Code. [95 Cal.Rptr. 479] The Board granted reconsideration and found that decedent 'sustained an injury arising out of and occurring in the course of his employment, proximately resulting in his death,' but further found that it was suffered in an altercation in which he was the 'initial physical aggressor.' Accordingly, the Board annulled the referee's award and ordered that petitioner take nothing by her application.
In his opinion accompanying the award, the referee was somewhat equivocal as to the basis for the award in the face of subd. (g), sec. 3600 of the Labor Code, but in his report to the Board on the petition for reconsideration, he forthrightly stated he found decedent was the 'initial physical aggressor' but nevertheless concluded the injury was compensable because in his opinion subdivision (g) of section 3600, was unconstitutional, citing Litzmann v. Workmen's Comp.App.Bd., 266 Cal.App.2d 203, 71 Cal.Rptr. 731.
Petitioner contends: (1) Under the evidence, the Board should have found, as a matter of law, that decedent was not the 'initial physical aggressor,' and (2) subdivision (g) of section 3600 of the Labor Code is violative of article XX, section 21, of the Constitution. For the reasons which follow, we have concluded that the Board's finding that decedent's conduct fell within the proscribed statutory condition of subdivision (g) of section 3600 of the Labor Code must be sustained. But it is further our conclusion that the statute, insofar as it purports to deny compensation in the circumstances here presented, conflicts with article XX, section 21, of the Constitution and is void.
I
We shall first consider whether decedent's conduct fell within the ambit of subdivision (g) of section 3600. In order to bring the statutory 'initial physical aggressor' condition into operation, the injury must have resulted from an 'altercation' traceable to the employment and the injured employee must have been the 'initial physical aggressor.'
The evidence is clear that the injury resulted from an 'altercation' as distinguished from 'horseplay' or 'skylarking.' "Altercation' indicates willingness to inflict, or the actual infliction of, bodily harm. [Citations omitted.] 'Horseplay' or 'skylarking,' while it may result in bodily harm, is characterized by an absence of animosity.' (Argonaut Ins. Co. v. Workmen's Comp. App. Bd., 247 Cal.App.2d 669, 682, 55 Cal.Rptr. 810, 819; Litzmann v. Workmen's Comp. App. Bd., 266 Cal.App.2d 203, 209, 71 Cal.Rptr. 731.) Unlike the circumstances in Argonaut, supra, and Litzmann, supra, in the present case there was strong evidence that animosity and willingness to inflict bodily injury pervaded the dispute.
The evidence also supports the finding that decedent was the 'initial physical aggressor.' Petitioner's contention that decedent could not, as a matter of law, be so deemed because he was not the first to make physical contact is without substance. The term 'initial physical aggressor' as used in the statute was manifestly intended to mean one who first commits a physical assault on his adversary as distinguished from one who merely utters insulting words or verbal threats against another. Here, as in civil actions for damages for assault and battery, rules of criminal law (except as to burdens of proof) should govern in determining the elements of the proscribed conduct. (Bartosh v. Banning, 251 Cal.App.2d 378, 386, 59 Cal.Rptr. 382.) 'An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' (Pen.Code, § 240.) Physical contact is not an essential element of the offense. (People v. Yslas, 27 Cal. 630, 634; People v. Swansboro, 200 Cal.App.2d 831, 837, 19 Cal.Rptr. 527; People v. McCaffrey, 118 Cal.App.2d 611, 618-619, 258 P.2d 557.) '* * * Where there is a clear intent to commit violence accompanied by acts which if not interrupted will be followed by personal injury, the violence is commenced and the assault is complete.' (People v. Yslas, supra, 27 Cal. 630, 633.)
Petitioner's suggestion that Cedillo was the 'initial physical aggressor' because, as a matter of law, he used more force in his defense than was reasonably necessary is likewise untenable. Whether excessive force was used in repelling an assault is normally a factual issue. (Fawkes v. Reynolds, 190 Cal. 204, 212-213, 211 P. 449; Coorough v. De Lay, 171 Cal.App.2d 41, 45, 339 P.2d 963.) Reasonable minds could well find that Cedillo used no more force [484 P.2d 480] [95 Cal.Rptr. 480] in his defense than was reasonably necessary. The evidence disclosed that Mathews was considerably taller and heavier than Cedillo; Cedillo continually retreated in an attempt to avoid a physical confrontation; he threw the first rock with little force and with no apparent intention of hitting Mathews; and he threw the fatal rock only after Mathews lunged forward in an apparent attempt to do him bodily harm.
We conclude that there was substantial evidentiary support for the Board's finding that decedent was injured in an 'altercation' in which he was the 'initial physical aggressor,' and that the operation of the statute cannot be avoided by indulging in semantic niceties concerning the meaning of the statutory words 'initial,' 'physical,' and 'aggressor.'
On the other hand denial of compensation benefits in the present case cannot be affirmed on the theory that the dispute was 'personal' or was one which did not spring from the employment relationship. The altercation was clearly work related. The Board rejected respondents' suggestion that it was not traceable to the employment by making an express finding that decedent 'sustained an injury arising out of and occurring in the course of his employment. * * *'
We are thus squarely confronted with the question whether subdivision (g) of section 3600 is constitutional. That question has never been judicially resolved. Although there was strong intimation in Litzmann v. Workmen's Comp. App. Bd., supra (1968) 266 Cal.App.2d 203, 209 (fn. 3), 71 Cal.Rptr. 731, that the statute might be unconstitutional, the court found it unnecessary to decide the issue. (See Witkin, Summary of Cal.Law [1969 Supp.] p. 841.) Respondents have cited three instances where writs of review were denied in cases in which subdivision (g) of section 3600 of the Labor Code had been invoked to deny compensation. (Briglia v. Ind. Acc. Com., (1962) 27 C.C.C. 217; Ochsner v. Workmen's Comp. App. Bd. (1968) 33 C.C.C. 387, hearing denied; Feldman v. Workmen's Comp. App. Bd. (1970) 35 C.C.C. 173.) We do not view a denial of a petition for writ of review, without an opinion resolving the constitutional issue, as determinative of the question.
II
Subdivision (g) was added to section 3600 of the Labor Code in 1961 (Stats.1961, c. 2170, p. 4493.) It purports to resurrect the aggressor defense which the Supreme Court abolished in 1952 State Comp. Ins. Fund. v. Ind. Acc. Com., 38 Cal.2d 659, 242 P.2d 311. In our opinion the Legislature was not empowered to revive the aggressor defense rejected in that case because: (1) The Supreme Court has decided that the aggressor defense is inconsistent with the social policy mandated by the Constitution and workmen's compensation laws; (2) the 'plenary power' vested in the Legislature by article XX, section 21, of the Constitution does not include the power to make absence of fault a condition of right to compensation benefits.
a. The aggressor defense is inconsistent with the social policy mandated by the Constitution and workmen's compensation laws.
California rejected the aggressor defense in 1952 in State Comp. Ins. Fund v. Ind. Acc. Com., supra (1952) 38 Cal.2d 659, 242 P.2d 311. The facts in the that case were strikingly similar to the present one. The injury arose out of a fight on a road construction project between an employee and his foreman. The employee became incensed because the foreman walked past him and relayed an order to him through a co-worker. Following an exchange of words, the employee 'swung' at the foreman but missed. In the ensuing fight the employee was injured by blows struck by the foreman. The commission found that the employee was injured in the course of his employment 'in an altercation in which he was the aggressor' but nevertheless [95 Cal.Rptr. 481] awarded compensation. The Supreme Court, by a 4-3 decision, affirmed the award. Throughout its opinion, the majority stressed the constitutional phrase, 'irrespective of the fault of any party' (Art. XX, § 21). It held that 'fault' included volitional as well as negligent acts and declared that 'the charge of aggressor cannot be a defense, for it is nothing more than an assertion that the employee was at fault--was to blame--brought it on himself.' (38 Cal.2d at p. 661, 242 P.2d at p. 313.) The court noted that the modern trend in workmen's compensation is to recognize the fact that quarrels and fights among employees are normal risks of the work environment. Consequently, it held that when an altercation stems from a dispute over performance of work or friction engendered by work environment, right to compensation ought not to turn on whether the injured employee was the initial aggressor. The following paragraphs of the opinion in that case are particularly pertinent:
'There is no basis for distinguishing between the case where the employee initiated the assault and where he did not or that of an aggressor and nonaggressor, except in one the employee is at fault and in the other he is not. As seen, this cannot be a valid distinction, because the fault of the employee is no bar to recovery unless it is serious and wilful misconduct and then only to the extent of one-half the compensation, and not at all if the employee is killed, suffers 70% or more disability, was under 16 years of age, or the employer failed to comply with a safety regulation. (Labor Code, § 4551.)
'The contention is made that considerations of public policy require that recovery be denied in cases where the employee is injured while engaged in the violation of a penal statute, because to allow recovery in such a case, would permit a person to benefit by his own wrong. That appears to be the real basis of many of the decisions denying recovery. The effect of such a holding is to deny recovery because of the fault of the employee contrary to the express provisions of the Constitution and statutes relating to workmen's compensation. The question of policy is for the people and the Legislature in the first instance and here they have spoken in no uncertain language, saying that fault, serious and wilful misconduct, and contributory negligence do not bar recovery. Hence to the extent such action by the employee is within a 'wrong' by which he may not ordinarily benefit, the policy declared is that he may so benefit.
'In the same connection, fear has been expressed that workmen will receive compensation for injuries suffered while committing a serious crime and who may be imprisoned for the offense. This fear is unfounded. Situations are conceivable where all would probably agree that compensation should be awarded even though a crime was committed. Take the case where an employee is injured while driving a car with defective brakes or without lights at night while engaged in conduction his employer's business or is required to make fast deliveries and so operates it that he is guilty of speeding, reckless driving, or even manslaughter. There may be cases in which a crime (e. g., murder) is committed where the criminal act may not be said to be reasonably related to the employment--is not within the realm of those acts which may arise out of emotional conflicts engendered by frictions in employment. When such a case is presented it can be decided on its facts without violating sound rules of construction of the constitutional and statutory provisions relating to workmen's compensation. Rather than attempt to state a general rule with exact boundaries, the court should meet each case as it arises. Clearly, a simple assault, such as here involved is not outside the boundary or in the category of an act having no reasonable connection with the employment.' (Emphasis supplied.) (State Comp. Ins. [95 Cal.Rptr. 482] Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 670-671, 242 P.2d 311, 318.)
The rationale of State Comp. Ins. Fund v. Ind. Acc. Com., 38 Cal.2d 659, 242 P.2d 311, and its interpretation of the constitutional phrase 'irrespective of the fault of any party' have been applied in decisions holding that injuries sustained in an assault by an employer (Azevedo v. Industrial Acc. Com., 243 Cal.App.2d 370, 52 Cal.Rptr. 283) and in an assault by another employee (Liberty Mut. Ins. Co. v. Ind. Acc. Com., 136 Cal.App.2d 600, 289 P.2d 109) are compensable.
One of the earliest decisions rejecting the aggressor concept was Dillon's Case (1948) 324 Mass. 102, 85 N.E.2d 69, cited with approval in State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 667, 242 P.2d 311. It held that an employee who was injured in a fight arising out of the employment should not be denied compensation simply because he struck the first blow. The court exposed the fallacy of focusing on the initial aggressor issue in determining whether an injury is compensable stating:
'So even where the employee himself strikes the first blow, that fact does not break the connection between the employment and the injury, if it can be seen that the whole affair had its origin in the nature and conditions of the employment, so that the employment bore to it the relation of cause to effect. In the present case there was no evidence whatever of any friction between Dillon and Kenney except in connection with their work. It could reasonably be found that a smoldering enmity was engendered between these men by the carrying of the employer's work, the control which Dillon as gang leader had over Kenney, and the manner in which he exercised that control in his employer's interest, and it could even be found that at the moment of the trouble Kenney was intentionally interfering with Dillon's work by standing upon the 'pallette' which it was Dillon's duty to raise. In such a case, when the accumulated strain finally breaks down resistance, it seems a narrow treatment of the problem to determine the granting or denying of compensation by the more or less fortuitous circumstance of who aimed the first blow. On all the evidence we think findings were warranted that both the quarrel and the ensuing injury arose out of the employment.' (Dillon's Case, supra, 324 Mass. 102, 85 N.E.2d 69, 72.)
The decision in State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 242 P.2d 311, was contrary to the weight of authority at the time but it now represents the view of all major compensation jurisdictions. (1 Larson, Workmen's Compensation (1968) 150-155; Riesenfeld, Contemporary Trends in Compensation for Industrial Accidents Here and Abroad, 42 Cal.L.Rev. 531, 552.) 'The abolition of the aggressor defense is one of the most rapid doctrinal reversals in the volatile history of compensation law. Before 1947 the aggressor defense had the entire field to itself. Then New Hampshire, in 1947, and Massachusetts, in 1949, handed down the cogently reasoned opinions in Newell v. Moreau [94 N.H. 439, 55 A.2d 476] and Dillon's Case, flatly rejecting the entire concept of aggression as a defense. Although a few cases asserting the defense having subsequently appeared, the most impressive feature of the new trend is the number of major compensation jurisdictions that have deliberately abolished the defense in spite of earlier decisions supporting it. These jurisdictions include California, Michigan, Minnesota, New Jersey, and New York.' (Larson, supra, pp. 154-155.)
The question remains whether it was within the legislative prerogative to reintroduce the defense in California. In our opinion, it was not.
(b) The 'plenary power' vested in the Legislature by article XX, section 21, of the California Constitution did not empower the Legislature to nullify the decision in State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 242 P.2d 311.
Respondents contend that article XX, section 21, of the Constitution is simply [95 Cal.Rptr. 483] an 'enabling statute' permitting the Legislature to create a system of workmen's compensation free of the common law defenses and that '[w]hile the Constitution gave the Legislature the full power, it did not direct the Legislature specifically to abolish all defenses, nor did it rule out the imposition of conditions of compensation.' If we understand respondents correctly, it is their position that 'plenary power' includes the authority to retain or reintroduce any or all of the common law or other judicially created defenses and that therefore it includes the power to revive the aggressor defense rejected in State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 242 P.2d 311.
The argument might have been tenable under section 21 of article XX as initially adopted in 1911 (see Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 701-702, 151 P. 398), but it has no validity under that section as amended in 1918. A review of the history of that section of the constitution will demonstrate the fallacy of respondent's position.
For a brief history of Workmen's Compensation laws in California, see 2 Hanna, California Law of Employee Injuries and Workmen's Compensation [2d ed. 1969] chs. 1.04. 2.02; Herlick, California Workmen's Compensation Law (1970) pp. 14-18.
In 1911 the Legislature enacted the first workmen's compensation law in this state, known as the Roseberry Act. It provided a voluntary system. (Stats.1911, c. 399.) Section 21 of article XX was proposed and adopted in the same year for the purpose of providing a constitutional basis for that Act. The section then read: 'The Legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment irrespective of the fault of either party. The Legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section, by arbitration, or by an industrial accident board, by the courts, or by either any or all of these agencies, anything in this Constitution to the contrary notwithstanding.'
In 1913 the Legislature replaced the Roseberry Act with a compulsory system of compensation under a statute known as the Boynton Act. (Stats.1913, c. 176.) Comprehensive amendments to the Boynton Act were made by the 'Workmen's Compensation, Insurance and Safety Act of 1917' (Stats.1917, c. 586) and that Act, as amended over the years, represents the present law. (2 Witkin, Summary of Cal. Law [7th ed. 1960] p. 1651; Herlick, California Workmen's Comp.Law [1970] p.17.) At the same 1917 session, the Legislature proposed extensive amendments to article XX, section 21 (Senate Const. Amend. 30, Stats.1917, c. 60, p. 1953) to insure the constitutional authority of the Legislature to establish and enforce a complete system of compulsory workmen's compensation and to assure the inclusion and protection of the essential elements of such a system. (Bartlett Hayward Co. v. Indus. Acc. Com., 203 Cal. 522, 528-529, 265 P. 195; Yosemite Lumber Co. v. Industrial Acc. Com., 187 Cal. 774, 781-782, 204 P. 226.) In the official ballot arguments in support of the amendment, Senator Luce stated in part:
'This amendment is a necessary amplification and definition of the constitutional authority vested in the legislature by the amendment to the Constitution adopted October 10, 1911, to enable the enactment of a complete plan of workmen's compensation, which amendment failed to express sanction for the requisite scope of the enactment to make a complete and workable plan. Such a complete plan embraces four principal things, each an essential component of one act:
'First--Compulsory compensation provisions requiring indemnity benefits for injury and death, irrespective of fault.
'Second--Thoroughgoing safety provisions.
[95 Cal.Rptr. 484] 'Third--Insurance regulation, including state participation in insurance of this character.
'Fourth--An administrative system involving the exercise of both judicial and executive functions.' (Emphasis supplied.)
The complete text of the arguments in favor of the 1918 amendment to art. XX, sec. 21, was as follows:
The pertinent paragraph of article XX, section 21, as amended in 1918 reads:
'The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workmen's compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workmen for injury or disability, and their dependents for death incurred or sustained by the said workmen in the course of their employment, irrespective of the fault of any party. A complete system of workmen's compensation includes adequate provisions [95 Cal.Rptr. 485] for the comport, health and safety and general welfare of any and all workmen and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workmen in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relief from the effects of such injury; full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects including the establishment and management of a State Compensation Insurance Fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State Government.' (Emphasis supplied.)
Section 21 of article XX, as amended in 1918, was more than an enabling provision; it in effect mandated the establishment of a compulsory system and prescribed certain basic features which must be included, 'all of which matters [were] expressly declared to be the social public policy of this state, binding upon all departments of the State Government.' The central feature of the compulsory system so mandated was the requirement that indemnity benefits be provided for injury or death, 'irrespective of the fault of any party.'
In comparing the 1918 amendments to the original 1911 provision, the Supreme Court has observed: 'The Constitution now calls for the enactment of a 'complete system of workmen's compensation." (Emphasis supplied.) (Pacific Emp. Ins. Co. v. Ind. Acc. Com., 26 Cal.2d 286, 294, 158 P.2d 9, 14.) The court has also referred to the 1918 amendment as 'the direct mandate of the people of the state.' (Bartlett Hayward Co. v. Indus. Acc. Com., supra, 203 Cal. 522, 529, 265 P. 195, 198.) In Pacific Indemnity Co v. Ind. Acc. Com., 86 Cal.App.2d 726, at p. 729, 195 P.2d 919, the court stated: 'By the constitutional amendment of 1918 (Art. XX, Sec. 21) the legislature was, in effect, required to create a statute to provide a system of workmen's compensation whereby to create and enforce a liability to compensate for injuries 'sustained by the said workmen in the course of their employment, irrespective of the fault of any party.'' (Original emphasis.)
We are satisfied that the 'plenary power' vested in the Legislature by article XX, section 21, was not intended to include the power to make freedom from fault a condition of entitlement to compensation benefits. To the contrary, by making compensation 'irrespective of the fault of any party' the 'social public policy of this State, binding upon all departments of this State, binding upon all departments of the State Government', the Constitution forbids the Legislature from enacting laws in derogation of that policy. To accept respondents' contention would mean the Legislature, in the unlikely event it should decide to do so, could restore any or all of the common law defenses. While that issue has never been squarely decided, all expressions by the Supreme Court have been that such power does not exist. In State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 661, 242 P.2d 311, 312, the court stated that exclusion of 'fault' and the common law defenses was 'the express declaration of the Constitution and statutes relating to workmen's compensation.' (Original emphasis.) In Associated Indem. Corp. v. Ind. Acc. Com., 18 Cal.2d 40, at p. 46, 112 P.2d 615, at p. 619, the court rejected the 'added risk' defense stating: 'Indeed it may well be asserted that the doctrine of 'added risk', that is, where an employee assumes a risk greater than that usually incident to his [95 Cal.Rptr. 486] employment, he cannot recover, cannot be followed in California because it is in effect nothing more than contributory negligence. Campbell, Workmen's Compensation, vol. 1, section 238; California Const., art. XX, sec. 21.'
We conclude that the Legislature was not empowered to revive the aggressor defense repudiated in State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 242 P.2d 311. The 'plenary power' vested in the Legislature does not include the power to overrule a judicial interpretation of the constitutional direction that compensation be provided 'irrespective of fault.'
Therefore subdivision (g) of section 3600 of the Labor Code cannot be applied to deny workmen's compensation benefits under the facts of the present case. To the extent it purports to do so, it is unconstitutional. The decision and order on reconsideration are annulled and the Board is directed to enter an order in this matter in favor of petitioner in accordance with the referee's findings and award.
Even if decedent's conduct be deemed to constitute 'serious and willful misconduct.' the amount of compensation would not have been subject to the 50 percent limitation of section 4551 of the Labor Code. The limitation is inapplicable '[w]here the injury results in death.' (Lab.Code, § 4551, subd. (a).)
KERRIGAN and GABBERT, JJ., concur.
'This amendment is a necessary amplification and definition of the constitutional authority vested in the legislature by the amendment to the Constitution adopted October 10, 1911, to enable the enactment of a complete plan of workmen's compensation, which amendment failed to express sanction for the requisite scope of the enactment to make a complete and workable plan. Such a complete plan embraces four principal things, each an essential component of one act:
'First--Compulsory compensation provisions requiting indemnity benefits for injury and death, irrespective of fault.
'Second--Thoroughgoing safety provisions.
'Third--Insurance regulation, including state participation in insurance of this character.
'Fourth--An administrative system involving the exercise of both judicial and executive functions.
'The earlier amendment contains no expression covering safety and insurance matters, and contains only meager and indefinite authority for administration. Notwithstanding obvious limitations, the legislature did incorporate in one enactment the full plan of compensation, insurance and safety, with adequate provisions for administration. This act, with slight modifications, has been in effect, more than four and onehalf years. It has given full satisfaction, both in its effects and in its administration in all departments. The state has built up a financial institution of great magnitude--the State Compensation Insurance Fund--which has transacted a business running into millions of dollars.
'The proposed amendment is designed to express full authority for legislation; to sanction, establish and protect the full plan in all essentials where the courts have not already passed upon it.
'As it proves itself, a law is entitled to approval and to be established upon a firm foundation. As the Workmen's Compensation, Insurance and Safety Act has proved to be beneficient, humane and just, and has wholly justified its enactment in all features, it should receive full constitutional sanction. EDGAR A. LUCE, State Senator Fortieth District.
'This amendment enlarges the scope of the previous amendment to the constitution, which furnished the authority for our present workmen's compensation act. In addition to compensation of workmen for injuries received, any complete scheme should provide for authority to require the use of safety devices, and that the state, as well as private insurance companies, can furnish insurance to employers against liability for injuries to their employees. The amendment of 1911, while providing for compensation, did not give the desired full and complete sanction for safety legislation or the creation of a state insurance fund. Laws, however, have been palled by the legislature and acted upon for a number of years which compel the use of safety devices, and provide also for the operation of the present state insurance fund.
'Our workmen's compensation act has proved such a success and has won such universal favor with employee, employer and public that it should be put upon a firm constitutional basis beyond the possibility of being attacked on technical grounds or by reason of any questioned want of constitutional authority. Sentate Constitutional Amendment No. 30 places beyond any doubt the constitutional authority for a complete workmen's compensation system. HERBERT C. JONES, State Senator Twenty-Eighth District.'