City of Long Beach v. Industrial Accident Commission & Loyd DeFries

CONREY, P. J. On petition of the City of Long Beach the writ was issued herein for review of an award made by the Industrial Accident Commission in favor of respondent Loyd DeFries. It is admitted that on April 7, 1933, DeFries was in the. employ of the city as an electrician, and as such employee sustained an injury arising out of and occurring in the course of his employment. No question is raised concerning the applicant’s right to the ordinary compensation allowable for such injury or the amount thereof. The claim in controversy herein relates solely to a demand for extra compensation by reason of serious and wilful misconduct of [54]the employer. The commission originally found that the injury was not caused by such serious and wilful misconduct. But a rehearing was granted, and thereupon the matter was again submitted without taking any further evidence. The commission then found that the injury was caused by the serious and wilful misconduct of the city, and that thé employee was entitled to have his compensation increased fifty per cent as prescribed by the Compensation Act, and award was made accordingly. The present proceeding is a review of that award.

If the commission’s finding that the injury “was caused by the serious and wilful misconduct” of the defendant city is supported by evidence of facts legally sufficient to justify the ultimate fact found, then the award must be affirmed; otherwise, the award should be annulled.

It is the “position of the Commission”, as stated by its counsel, that serious and wilful misconduct of an employer is established in a case “where, regardless of violation of safety order or statute, the employer allows a palpably dangerous condition or instrumentality to exist on his premises, or at the place of employment, and then permits his employees to work exposed to such hazard. Under such conditions, the employer is presumed to have disregarded the safety of his employees and to have apparently been willing to inflict the injury suffered.” The contention of respondents that the situation thus described applies to the ease at bar is not accompanied by any claim that any safety order of the commission was violated or that any statute was violated by the employer.

Thus we are brought down to two facts, impliedly found by the commission, and on proof of which the validity of the award depends. These implied findings are, that a palpably dangerous condition existed on the premises where the applicant was required to work; and that the employer allowed that condition to exist, and permitted the applicant to work exposed to the hazard thus created.