Grason Electric Co. v. Industrial Accident Commission

Grason Electric Company was the employer of John Lauer, who was fatally electrocuted in the course of his work. The Industrial Accident Commission held that the employer had been guilty of serious and wilful misconduct and awarded the widow augmented compensation. The employer petitioned for review.

*48 Labor Code section 4553 provides for an increase of workmen’s compensation where the employee is injured by reason of the serious and wilful misconduct of the employer or his managing representative. Serious and wilful misconduct is not to be equated with negligence or even gross negligence. In Mercer-Fraser Co. v. Industrial Acc. Com., 40 Cal.2d 102, 120 [ 251 P.2d 955 ], it was authoritatively defined as “an act deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences . . . .” As this court interpreted the Mercer-Fraser definition in Dowden v. Industrial Acc. Com., 223 Cal.App.2d 124 , at page 130 [ 35 Cal.Rptr. 541 ], serious and wilful misconduct includes these three…

I dissent. I adhere to my concurrence with the opinion written by Justice Van Dyke, filed February 3, 1965, reported in (Cal.App) 42 Cal.Rptr. 550 . The portion of that opinion which deals with the law and which expresses my views follows:

“The commission considered that the facts showed a violation of its safety order. On this point the parties present arguments pro and con. However, we think it unnecessary to rule upon that and will assume the violation of the safety order. The violation of the safety order, like the violation of any safety statute, is prima facie proof of negligence, but it is not prima facie proof of the much graver misconduct involved in serious and wilful misconduct as those terms are used in Labor Code sections 4553 and 4553.1. What is meant by the words ‘serious and wilful misconduct’ as used by the Legislature has been the subject of a number of decisions by the Supreme Court and the District Courts of Appeal. Notable among these are Mercer-Fraser Co. v. Industrial Acc. Com., 40 Cal.2d 102 [ 251 P.2d 955 ]; Hawaiian Pineapple Co. v. Industrial Acc. Com., 40 Cal.2d 656 [ 255 P.2d 431 ]; Sutter Butte Canal Co. v. *56 Industrial Acc. Com., 40 Cal.2d 139 […

Grason Electric Company was the employer of John Lauer, who was fatally electrocuted in the course of his work. The Industrial Accident Commission held that the employer had been guilty of serious and wilful misconduct and awarded the widow augmented compensation. The employer petitioned for review.

[1] Labor Code section 4553 provides for an increase of workmen's compensation where the employee is injured by reason of the serious and wilful misconduct of the employer or his managing representative. Serious and wilful misconduct is not to be equated with negligence or even gross negligence. In Mercer-Fraser Co. v. Industrial Acc. Com., 40 Cal.2d 102, 120 [ 251 P.2d 955 ], it was authoritatively defined as "an act deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result or with a positive, active, wanton, reckless and absolute disregard of its possibly damaging consequences ...." As this court interpreted the Mercer-Fraser definition in Dowden v. Industrial Acc. Com., 223 Cal.App.2d 124 , at page 130 [ 35 Cal.Rptr. 541 ], serious and wilful misconduct includes these three…