Auto Lite Battery Corp. v. Industrial Accident Commission

DOOLING, J.

Petitioners seek to annul an award of the Industrial Accident Commission in favor of Albert Pennella. Pennella, a minor twenty years of age, was employed by petitioner, Auto Lite Battery Corporation of California. He worked on an assembly line placing elements in battery cases. The parts which Pennella and his fellow workers on the assembly line used in their work were customarily brought from the store room by a small electric truck. A driver was employed to operate this truck and Pennella had been at least twice specifically forbidden by his foreman to operate it. Pennella testified that when just a few parts were lacking for their work on the assembly line “I usually go up and carry them back,” and that on such occasions he carried them by hand. On the

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date of his injury Pennella, after a rest period, placed some parts which were needed to continue his work on the electric truck and, in express violation of the orders previously given him, got on the truck and drove it to the assembly line. In attempting to get off the truck at the assembly line he accidentally started it and was crushed between the truck and the wall, receiving the injuries to his leg which resulted in the award under attack.

The respondent commission after first denying compensation granted a rehearing and made an award to Pennella, finding that he “sustained injury arising out of and in the course of his employment,” but that “said injury was caused by the serious and wilful misconduct of said employee, in that he knowingly and intentionally violated an express order of his employer to the effect that he was not to operate the electric truck which caused his injury. ’ ’ By reason of this finding of the employee’s misconduct the award of compensation was reduced 50 per cent. (Lab. Code, § 4551.)

Petitioners attack the award on the ground that in operating the truck in violation of the orders expressly given him Pennella stepped outside the scope of his employment and that the award for that reason is not justified.

It is well settled in this state that an employer may so limit the scope of an employee’s duties that if he steps outside the scope of those duties and undertakes to perform work which he is not employed to do he is not acting within the scope of his employment.