CALIFORNIA SHIPBUILDING CORPORATION (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and FRANK CORNIER, Respondents, 31 Cal. 2d 278

SCHAUER, J. Respondent Frank Cornier sustained compensable injuries while in the employ of petitioner California Shipbuilding Corporation. He claimed and respondent commission awarded the increased compensation provided by

section 4553 of the Labor Code for an employe injured by reason of the serious and wilful misconduct of an employer. To sustain the extra compensation, it must be established that the employer’s misconduct is both serious and wilful (27 Cal.Jur. 441, § 118) and, where the employer is a corporation, such misconduct, before it can be attributed to the corporation, must be proved to be that of “an executive, managing officer, or general superintendent thereof” (Lab. Code, § 4553).

The commission found that “Said injury was proximately caused by reason of the serious and wilful misconduct of the employer, by and through its managing officers, in violation of Labor Code Sections 6400-6404 inclusive, in that said employer cut a hole in the deck of a ship, and: (

a) Failed to have proper or any lights illuminating or making visible the said hole and the deck immediately adjacent thereto; (

b) Failed to guard the said hole with proper or sufficient guard rails; (

c) Failed to notify or warn the applicant that said hole had been cut in said deck, with knowledge that applicant was working in the vicinity of and had occasion to be at or near the said hole; (

d) Failed to take reasonable precautions and/or to adopt and use methods and processes reasonably adequate to render the employment and place of employment safe.” Petitioner urges that there is no evidence that any of its “managing officers” created or knew of or wilfully maintained the hazardous condition described in the finding and that such finding is defective because it does not specify the agent or agents of petitioner to whom the commission attributed misconduct. Such a finding is not necessarily fatally defective merely because of its form (California Shipbuilding Corp. v. Industrial Acc. Com. (L.

A. 20140), ante, p. 270 [188 P.2d 27]), but examination of the record in this case neither makes it adequately certain nor reveals any tenable factual theory of the commission which could support such general conclusionary finding. A number of supervisory employes with various degrees of authority were referred to by name or job classification in the testimony adduced by the applicant for compensation. The applicant tried diligently to establish a basis for a finding that there was wilful misconduct by someone and to fix responsibility for such misconduct, if any, upon one or another of the mentioned employes..

In such a casé it is particularly unfair—both to the employer who seeks to attack the award and to the applicant who seeks to uphold it—for the commission not to disclose in its findings the particular factual basis on which the award rests.

Nor should the reviewing court be expected to search the record and from a maze of uncertain, loose and conflicting testimony relative to various persons and events, evolve some factual theory of wilful misconduct by someone, perhaps unthought of by the parties in interest, which could possibly be supported by some evidence in order to sustain the award. (See Western Indemnity Co. v. Pillsbury (1915), 170 Cal. 686, 705 [151 P. 398].) Cornier was injured while working at night (graveyard shift) on a ship under construction.

He fell into a rectangular hole, 4 x 12 feet in size, in a part of a deck which, while there were lights on either side, was itself in a shadow and relatively dark. He testified, "There was light around but not where I fell, because there was no light right at that particular place, right at that particular place.” Around three sides of the hole, about 2 feet from its edges, was a single guard rail, fastened to “uprights,” about 3y2 feet above the deck.

The fourth edge of the hole was immediately adjacent to and fully protected by a bulkhead, but between the bulkhead and the rail on either side were openings, one of which was about 2 to 6 inches wide and the other about 12 inches wide. (The size of the wider opening appears from a photograph showing a ruler held across the opening. The accuracy of such photograph was accepted by the referee and is not disputed.) Cornier, according to his testimony, fell into the hole without having seen or touched the rail.

The referee in this connection stated, “It does not seem probable that applicant passed through the 12-inch aperture between guard rail and bulkhead, for he weighed approximately 190 pounds at the time of injury and had no recollection of touching anything just before falling; it is more likely that he was stooping, looking on the darkened deck for equipment, and passed underneath the rail. . . .” There were lights installed in the galley beneath the hole and “There was lighting supposed to be in there,” but the lights were not turned on until after the accident.

They were turned on a few moments after the accident, by the electrician Kennedy, not because of knowledge of the accident or hazard (he then had none) but in regular course of duty on “a routine inspection.” As for the occasion for Cornier’s going to the part of the ship where he fell, he testified “I was up on the deck above from where I fell and the foreman sent me down to go aft and fur up a strong back and I was on the next deck and I was looking for material to work.” The hazardous condition appears to have been created by a concurrence of four elements:

(1) The cutting of the temporary hole in the deck;

(2) The fact that the hole was in a shadow with bright lights on either side;

(3) The guard rail was inadequate to prevent a stooping person from passing under it;

(4) The lights which had been installed in the galley below the hole were not turned on at the time in question. The first element—the temporary hole—was created on a shift (day or swing) previous to the one (graveyard) during which Cornier was injured. There is no evidence that any managing agent of petitioner on the day or swing shift was responsible for or knew of such condition, or that the condition was one which in the regular course of operations over an extended period of time frequently recurred.

On the contrary, this was the first time, at least in the experience and procedure of the parties here concerned, that such a hole had ever been cut in a ship. It was cut through the deck above the galley in order to provide an aperture through which a stove could be moved for installation.

As stated by the referee, “No Safety Order [in effect at the time of the accident] appears in terms to apply to the situation here preseated, for the hole cut in the deck constituted an entirely new procedure, and the hole was temporary in its duration, being only for the purpose of access to the galley, and thereafter would be closed.” One Beckner, “hull foreman” of the graveyard shift, had authority over chippers, burners, riggers, shipfitters (including Cornier) and shipwrights. One Rollins was safety inspector on the graveyard shift.

Neither of these men learned of the existence of the dangerous condition until after Cornier was injured and it does not appear that their failure to discover it was due to remissness in the performance of their duties. One Daniels was also a foreman on the graveyard shift. The evidence as to his title and the nature and extent of his duties and authority and his knowledge of pertinent circumstances, is slight and conflicting and insufficient to establish a basis for the serious and wilful misconduct award.

He is variously referred to as the “senior welding foreman” or “ship foreman . . . over the entire boat and all the men on the boat” or “senior foreman.” At the times in question he was not on the ship but in his office, which was “off the boat altogether.” At about 1:15 p. m. Daniels was told by a worker that another employe, one Billie, had fallen into the hole.

Cornier’s highly uncertain testimony as to the time of his fall was that he fell “I imagine about between two and three, somewhere around that, one-thirty, somewhere around that time.” So far as the referee’s report discloses, it did not appear to the referee, and from the transcript it does not appear to us that Daniels learned of the earlier accident or of the dangerous condition in time to have had such condition corrected, if he had authority to do so, or to notify one with such authority, if he did not, so as to have prevented the occurrence of the accident to Cornier; certainly, it does not appear that the finding of “serious and wilful misconduct” is, or reasonably could have been, based on any act or dereliction of Daniels.

The second element going to make up the hazardous condition—the fact that the hole was in a shadow intensified by the bright lights on either side—would have been inconsequential here if the deck had been in its normal condition and would have been nonexistent or overcome if the galley lights had been turned on.

As to the relationship and significance of the guard rail and the lights in the galley—the third and fourth elements of the hazardous condition—the referee aptly stated that “if the area had been lighted, it is probable that the existing guard would have been sufficient. ’ ’ The referee reported and the commission relies on the theories that some unknown and unidentified foreman or superintendent on the day or swing shift “must have known” of the dangerous condition and that hull foreman Beckner had a “duty” to discover it and that whatever managing officer in charge did know of it or was charged with knowledge of it, wilfully maintained it—theories unsupported by the evidence and entirely too uncertain and nebulous, in any event, to sustain the increased award.

These views of the commission have no more support in the evidence than the equally possible surmises that the dangerous condition existed because some unidentified swing shift employe negligently failed to turn on the lights which the management had installed in the galley, or because some accidental vibration, without fault of anyone, caused such lights to go out. In basing its award on speculation rather than on evidence, the commission exceeded its jurisdiction. The award of increased compensation is annulled. Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.

Among the employes mentioned in the testimony who had, or possibly exercised, some supervisory authority, are Frank J. Beelmer, “hull foreman” on the graveyard shift, who was Cornier’s foreman; John Lenan, foreman of one Kennedy (Kennedy was an electrician on the graveyard shift whose duty was to “fix lights”); James L. Rollins, “safety inspector” on the graveyard shift, who did not know of the existence of the hole until after Cornier's accident and who, immediately after such accident, "had the hole covered with boards”; Mr. Cassell, "the 24-hour superintendent”; C. E.

Daniels, who worked on the graveyard shift and who was variously described as "senior foreman,” ‘ ‘ ship foreman . . . over the entire boat and all the men on the boat, ’ ’ and "senior welding foreman” with "two foremen under him who had the jurisdiction over the welders”; Tom Meeks, welding foreman on the swing shift; A. T. Brant, "senior foreman on one of the ways” during the day shift; Mr. McGovern, chipper foreman on the day shift; Henry Forehand, who was a taeker and to whom Wafterfield reported an earlier accident; M. L.

Warterfield, a. shipfitter, who'"sent” Forehand to notify someone concerning the lighting conditions; and the following men whose names the witnesses could not recall: senior welder foreman and welder foreman on the day shift; burner foreman, fitter foreman, shipwright foreman and stage rigger foreman' on .the day and swing shifts; chipper foreman on the swing shift; senior fitter foreman on the day shift; burner leadman on the swing shift.