Guy F. Atkinson Co. v. Industrial Accident Commission

WARD, J. This is a petition for a writ of review to annul an award of death benefits, made by the Industrial Accident Commission and based on the serious and wilful misconduct of an employer.

[367]Petitioner herein, Guy F.'Atkinson, a corporation, was engaged in the construction of buildings on Treasure Island, including one housing the Alameda-Contra Costa Counties exhibit. Connecting this with the Mission Trails Building was a small one-story structure, and it was in the latter decedent sustained his injury, which was occasioned by falling through a space designed to be used as a skylight. The evidence shows that uneven boards protruding over this space had been in whole or in part trimmed. If trimmed, guard rails surrounding it should have been erected. It appears to be the practice, also, that if an opening is not to be covered for a day or two, such guard rails should be installed, irrespective of trimming. The testimony is slightly conflicting on this phase of the evidence, but it is sufficient to establish that the carpenter employed at this skylight opening immediately prior to the accident had stepped about ten feet away to talk to a fellow workman. During this short interval a state building-construction inspector, who happened to be on the building, called the foreman carpenter (decedent), who was on a lower floor, to come up and discuss a matter,—one not connected with the skylight. The foreman ascended through another opening and, while walking toward the inspector, fell through the space, receiving injuries which resulted in his death.

Prior to the present award, normal compensation benefits had been allowed in the sum of $5,000, plus funeral expenses, etc. On rehearing, without additional evidence touching the merits of the controversy, an additional sum equal to one-half the normal compensation was awarded,—this, upon the theory the employer was chargeable with serious and wilful misconduct.

The application for adjustment of claim described the deceased as a carpenter foreman. The original findings so declared, and in addition thereto stated that the injury was not caused by reason of the serious and wilful misconduct of the employer. The decision on rehearing, however, while adhering to the original finding as to the status of the claimant, declared that the injury was caused by the serious and wilful misconduct of the employer.

Labor Code, section 4553, provides in part: “The amount of compensation otherwise recoverable shall be increased one-half where the employee is injured by reason of the serious and wilful misconduct of any of the following: ... (c) If