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Reports of All Decisions Rendered in Compensation
and Federal Employers' Liability Cases in the
Federal Courts and in the State

Appellate Courts

William Otis Badger, Jr., Editor

R. M. Chandor, Manager

Volume VII

New York
Published by C. C. Hine's Sons Co.

21 Platt Street

SEP 10 1921

Volume VII

January, 1921

No. 1

Reports of All Decisions Rendered in Compensation and Federal Employers' Liability Cases in the Federal Courts and in the State Appellate Courts.

E. CLEMENS HORST CO. v. INDUSTRIAL ACCIDENT COMM]'S

SION OF CALIFORNIA ET AL. (S. F. 9319.) (Supreme Court of California. Oct. 20, 1920. Rehearing Denied Nov 18,

1920.)
193 Pacific Reporter, 105.

1. MASTER AND SERVANT-EMPLOYER'S “SERIOUS MISCON

DUCT” WITHIN COMPENSATION ACT DEFINED.

"Serious misconduct" of an employer within Workmen's Compensation Act, § 6b, authorizing increased compensation, means conduct which the employer either knew or should have known to be conduct likely to jeopardize the safety of his employees.

(For other cases, see Master and Servant, Dec. Dig. $ 352.) 2. MASTER AND SERVANT EMPLOYER'S "WILLFUL MIS

CONDUCT” WITHIN COMPENSATION ACT DEFINED.

An employer's serious misconduct, causing injury to his employee and justifying the award of increased compensation under Workmen's Compensation Act. § 6b, is "willful,”, particularly with reference to the requirement of knowledge to the employer, though the evidence does not show positively that the employer was notified of the unsafe condition, if it appears from the circumstances that the acts of omission or commission evinced a disregard for the safety of others and willingness to inAlict the injury complained of, as a failure to guard shafting, in direct violation of a general safety order of the Industrial Accident Commission.

(For other cases, see Master and Servant, Dec. Dig. $ 352.)

(For other definitions, see Words and Phrases, First and Second Series, Willful.) 3. MASTER AND SERVANT EMPLOYER'S "OFFICER"

CHARGEABLE WITH MISCONDUCT WITHIN COMPENSATION ACT DEFINED.

Workmen's Compensation Act, $ 6b, authorizing increased compensation where the employee is injured by reason of serious and willful misconduct on the part of an executive or managing "officer” of a corporation, hy "officer” means a person in the corporation's employ, either elected or appointed, invested with the general conduct and control in a particular place of the business, the word not being used in its technical, legal sense as one elected or whose office is provided for by articles of incorporation or by-laws.

(For other cases, see Master and Servant, Dec. Dig. ! 352.)

(For other definitions, see Words and Phrases, First and Second Series, Officer.)

4. MASTER AND SERVANT-EVIDENCE HELD TO SHOW AC

CIDENTAL INJURY BY "SERIOUS AND WILLFUL MISCON-
DUCT OF EXECUTIVE OR MANAGING OFFICER,” WITHIN
COMPENSATION ACT.

Evidence held to sustain the Industrial Commission's finding that the accidental injury to an employee caught in a revolving shaft was the result of the "serious and willful misconduct of an executive or managing officer” of the corporate employer, justifying increased compensation under Workmen's Compensation Act, § 6b.

(For other cases, see Master and Servant, Dec. Dig. § 405[1].) 6 MASTER AND SERVANT WORKMEN'S COMPENSATION

ACT PROVISION FOR ADDITIONAL ALLOWANCE FOR
WILLFUL MISCONDUCT OF EMPLOYER HELD CONSTITU-
TIONAL.

Const. art. 20, $ 21, empowering the Legislature to create a liability on the part of employers to compensate employees for injuries received irrespective of the fault of either party, authorized the enactment of Workmen's Compensation Act, § 6b, providing for compensation, increased by one-half in case the injuries were caused by willful and serious misconduct of the employer.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

In Bank.

Application for certiorari by the E. Clemens Horst Company, a cor. poration, the employer, to review an order of the Industrial Accident Commission of the State of California, awarding compensation for injuries to Mrs. La Verne Hamilton, the employee. Award affirmed.

Rehearing denied in bank: Angellotti, C. J., dissenting.

Edward C. Harrison and Maurice E. Harrison, both of San Francisco (Arthur W. Bolton, of San Francisco, of counsel), for pettioner.

A. E. Graupner, of San Francisco (Warren H. Pillsbury, of San Francisco, of counsel), for respondents.

LAWLOR, J. This cause is before us on a writ of certiorari issued upon the application of petitioner, E. Clemens Horst Company, a corporation, to review an award made on October 24, 1919, by the respondent Industrial Accident Commission in favor of respondent Mrs. La Verne Hamilton as compensation for injuries sustained by her on June 7, 1919, while in petitioner's employ. The sum of $8.89, payable weekly in advance, was awarded to her against the Ocean Accident & Guarantee Corporation, petitioner's insurance carrier, as "a temporary total disabi!i'y indemnity," and one-half of that sum, $4.45, also payable weekly in advance, was awarded her against petitioner as additional compensation by reason of the fact, as found by the commission, that her injuries were occasioned by petitioner's "serious and willful misconduct."

The said insurance carrier is not a party to this proceeding, and the only question presented is as to the validity of the award of additional compensation against the petitioner. The latter's contentions are: (1) That section 6(b) of the Workmen's Compensation Act (St. 1917, p. 834) is unconstitutional, and (2) "that even if this section were valid there is no evidence of 'serious and willful misconduct

on the part of an executive or managing officer of the petitioner corporation, and that therefore the commission was without jurisdiction to make the award."

At the date of the accident Mrs. Hamilton was employed in petitioner's vegetable drying plant near Wheatland, Yuba county, which had been built about ihree months before. E. Clemens Horst was petitioner's president and general manager. George E. Miller was general superintendent of petitioner's ranches. It appears that he was not a director or stockholder of petitioner. T. L. Conrad was superintendent of the plant at Wheatland, and was neither a director nor a stockholder of petitioner. When Mrs. Hamilton was injured she was working on a small platform raised about two feet irom the foot of the plant. It was her duty to watch a conveyor belt which passed in front of her, and upon which potatoes were being carried from a peeling machine to a "slicer” about two feet to her left, and to pick out and pare chose potatoes which had not been properly treated by the peeling machine. Directly over, and parallel to the conveyor belt, and about 51/2 feet above :he platform on which she was standing, was a rapidly revolving shaft'which operated the various machines in the plant. This shaft was protected by a board on the side nearest the employee, but was unprotected below. The accident occurred under these circumstances: About 8 p. m. the mouth of the "slicer" at Mrs. Hamilton's left became clogged. Leaning over the belt and under the shaft she reached out to clear the potatoes away from the "slicer." in this position her hair was caught by the shaft and pulled from her head, so that she was completely scalped. It is admitted by petitioner that "the accident happened in the course of her employment, and no question is made of her tight to recover compensation.”

1. We shall irst consider petitioner's claim that the finding that the injury was caused by the employer's serious and willful misconduct is not supported by the evidence. Section 6(b) of the Workmen's Compensation Act (Stats. 1917, p. 834; Deering's General Laws, Consol. Supp. 1917– 1919, Act 2143c, p. 1392), as it stood at the time of the accident, read in part: "Where the employee is injured by reason of

serious and willful misconduct * on the part of an executive or managing officer (of a corporation), the amount of compensation otherwise recoverable for injury or death, as hereinafter provided, shall be increased onehalf: * Provided, however, that said increase of award shall in no event exceed twenty-five hundred dollars.''

The commission has found on this point:

(8) That at the time of said injury, the employer was a corporation. That the employer by its executive and managing officers constructed said plant and placed therein the transmission shafting upon which applicant was injured, parallel to and direc ly over the belt upon which applicant worked, at a height on a level with her eyes and without any guard or protection on the under side thereof. That applicant's work required her to bend forward with her head beneath said shafting, and it was necessary for her to stoop to do so. That her hair was thereby brought into close proximity to the unguarded portion of said shafting, which was at all times revolving rapidly. That said shafting was at all times herein mentioned maintained in said condition by said employer through its executive and managing officers and by said Miller and Conrad. That said construction and maintenance were, and each of them was, a direct and open violation of the provisions of sections 33, 34, 35, and 36 of the Workmen's Compensa:ion, Insurance, and Safety Act of 1917. That the duty owed by said employer and its executive and managing officers to employees, under the said provisions, cannot be delegated by them, or any of them so as to free them, or any of them, from responsibility for the violation of said duty, and under he ruling in the case of Fidelity & Deposit Co. of Maryland v. Industrial Accident Commission, 71 Cal.

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