Holt v. Industrial Accident Commission

SCHOTTKY, J. Petitioner filed a petition in this court seeking to review a decision of the Industrial Accident Commission after reconsideration granted.

The petition alleged that Frank Holt, petitioner, is an individual doing business as J. D. O’Brien Crane and Rigging Service, and that on July 6, 1950, at Modesto, California, John Therkelsen, while employed as an oiler on a crane owned by petitioner, sustained injuries occurring in the course of and arising out of his employment which proximately caused his death. The petition alleged further that following hearings the Industrial Accident Commission granted the respondent [374]widow and minor children of Therkelsen the additional sum of $3,000 against petitioner, based on the alleged serious and wilful misconduct of the petitioner. The allegations upon which the findings and award of the commission were predicated ■ were as follows:

“That applicant further alleges that the death of her husband was due to the wilful and serious misconduct of the ■ employer and fellow employee and bases such allegation on the following facts:

“ (a) The fellow employee was operating a crane in violation of Safety Order No. 2603 of the California Industrial Accident Commission.

“(b) The fellow employee was advised prior to the moving of the crane to the position in which the accident occurred, . that high voltage wires were overhead.

■“(e) During the operation of the crane the fellow employee was continually warned to be careful of the high voltage wires and on various occasions was warned that the ‘boom’ of his ’ equipment was ‘getting close’ to the. wires.

“The applicant further alleges, in addition to the specific .violation of the above noted safety order, that the death of the applicant’s husband was due to the serious and wilful misconduct of the employer or his managing representative.”

The facts, as developed at the hearings before the Industrial Accident Commission are not in dispute and are substantially as follows:

Spears Construction Company, general constructors, in the course of constructing a sewer farm at Modesto, California, in Stanislaus County, required a particular type of equipment that they did not have readily available to them.