I dissent.
It is difficult to ascertain whether the majority opinion holds that the evidence is insufficient to establish serious and wilful misconduct or that such misconduct, although established, was not shown to be chargeable to a managing officer. In either event I am convinced the evidence is sufficient. Moreover, I wish to point out that the condemnation of the finding of such misconduct, for failure to designate the managing officer chargeable therewith, is erroneous and contrary to authority.
Turning first to the evidence, my review of the record reveals that the facts are much stronger in support of the commission’s finding than those presented in the majority opinion. It must be remembered that if there is any evidence to support the findings of the commission its award must be affirmed, and only the evidence favorable to that result need be considered. Conflicts may be ignored.
The record discloses that a hole was cut in the deck of the *284ship immediately over the galley, to be used in placing a stove in the galley. The employee, Cornier, was working on the graveyard shift, that is, from 12:30 a. m. on. There is abundant evidence that the area around the hole was dark. There was no light in the galley below the hole. There was a single guard rail about 3% feet high on three sides of the hole. It had no toe stop at its bottom. The fourth side of the hole faced the hull of the ship. There was no guard rail along that side. The two side guard rails failed by 2 feet to reach the hull of the ship, thus leaving a 24-inch space where the hole was unguarded. There is evidence by several witnesses that the space was of that size. (The figures of 2 inches at one end and 12 inches at the other, given in the majority opinion are the result of choosing, evidence less favorable to the finding.) We have therefore a dearly dangerous and unsafe condition at the place of work of the employees. The safety laws condemn such a condition. “Every employer shall furnish employment and a place of employment which are safe for the employees therein.” (Lab. Code, § 6400.) As I read the majority opinion it concedes that if that condition were known to a “managing officer” of a corporate employer, and nothing was done to rectify it, a case of serious and wilful misconduct is made out. This brings us to the question of whether such an officer was in that position in the case at bar.
That question must be answered in the affirmative for several reasons: First, some such officer must have known of that condition. The employer, although undoubtedly in a position to do so, offered no evidence as to when or under whose direction the hole was cut. Being able to produce such evidence, but failing to do so, it will be presumed that if it were produced it would have been unfavorable to it. The employer offered only one witness, the safety inspector for the graveyard shift on which the employee was injured. It offered no evidence as to who the various managing officers were, or the nature of their powers. No evidence was adduced by it as to who had charge of cutting the hole or placing guards around it. It made no showing as to the managing officers and their powers during the shifts preceding the accident. We may assume, therefore, that the hole had been cut at least at the time of the swing shift, immediately preceding the graveyard shift. That would mean that the darkened hole with an inadequate guard rail had existed during the hours of darkness from 6:00 p. m. to 12:30 a. m. and thereafter to the time *285Cornier was injured. The lights below the hole were ignited after the accident but they were not turned on at that time as stated in the majority opinion. They were then “hooked up” from which we may infer that they were totally disconnected during all the previous time. It is inconceivable that no managing officer would fail to discover the hazard before the accident. At least it is inferable that one did. It is not to be supposed that such officer or officers wilfully avoided the ship and failed to discover the danger or shut their eyes to it. If they did, then that in itself would be wilful misconduct by the appropriate person. Therefore, we have a logical basis for saying that some such officer must have known of the condition and failed to correct it. This is not a theory, as expressed by the majority, as “uncertain,” “nebulous” and “unsupported by the evidence.”
■There is an additional reason why a managing officer must have known that the hole was not properly guarded. Provision was made in the blueprints for the hole, and we may assume that it was ordered cut by a managing officer, and that such person would also supervise or direct the placing of the guard rails. It is reasonable to infer, as conceded by the majority, that Cornier fell by reason of crawling under the guard rail. The guard rail failed to meet the safety rules on the subject. Such rules provide: “(a) All deck . . . openings eighteen (18) square feet or over in area shall be guarded by standard guard railings and six (6) inch toe boards until replaced by ships equipment.” “Standard Guard Railing” means “a two rail railing having a top rail whose upper surface is from forty-two (42) to forty-five (45) inches above the upper surface of the staging, platform or runway being protected and whose second or mid-rail is located half way between the top-rail and the top surface of the staging, platform or runway.” [Emphasis added.] Here the guard rail had no middle rail and no toe board. If there had been one, Cornier would not have fallen, even if it were dark. The insufficient guard rail must have been installed or at least seen by a managing officer.
Second, another person (Billie Lovett), a woman, had fallen into the same hole before Cornier’s mishap and that incident was known to Daniels, the ship foreman, who failed to take any action. It may first be noted that there is ample evidence showing Daniels to be a “managing officer.” His *286headquarters were in a shack not on board the ship. Warterfield, an employee on the graveyard shift, testified: “Did you have any other supervisor or superintendent there? A. There was the ship foreman, Mr. Daniels, over the entire boat and all the men on the boat.” Certainly, the ship was one separate project of the employer’s work and the man in charge of it and all the men thereon, qualifies as a managing officer. x At the time Billie Lovett fell into the hole the lighting conditions were the same as at the time of Cornier’s fall—it was dark. The majority opinion states that she fell 20 to 30 minutes before Cornier did. (Again it is taking evidence unfavorable to the applicant to whom the award was made.) Forehand, an employee, testified that he went to work at 12:30 a. m and Billie’s fall occurred 30 minutes later, that is, 1 a. m. He immediately told Daniels of the incident. Cornier testified he fell between 2 a. m. and 3 a. m. Taking the later figure, as we must do, an hour and 45 minutes to two hours elapsed between the time Daniels knew of the condition and Cornier’s fall. How can this court say, as a matter of law, that it was not wilful misconduct for Daniels to fail to rectify the dangerous condition during that time? The answer is, that we are bound by the commission’s determination. Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699 [28 P.2d 919], is closely in point. There this court affirmed a finding of wilful misconduct where the employee fell from a ladder due to insecure handholds, stating at page 703: “ 'Serious misconduct’ of an employer, within the meaning of the statute . . . was defined in E. Clemens Horst Co. v. Industrial Acc. Com., 184 Cal. 180, 188 [193 P. 105, 108, 16 A.L.R. 611], to be 'Conduct which the employer either knew, or ought to have known, if he had turned his mind to the matter, to be conduct likely to jeopardize the safety of his employees. ’ In the same case it was said that, in order that serious misconduct should also be wilful misconduct within the meaning of the statute, the appearance of circumstances surrounding the act of commission or omission which evince a reckless disregard for the safety of others and a willingness to inflict the injury complained of’ would amount to sufficient proof of knowledge by the employer of the unsafe condition of the premises to fulfill the requirement that the employer charged with wilful misconduct shall have knowledge that the act of commission or omission is wrongful. It may be conceded that, generally speaking, the mere failure of an employer to comply literally *287with the requirement of a safety order of the Industrial Accident Commission does not of itself justify a finding that the employer is guilty of serious and wilful misconduct. In the final analysis, the circumstances presented by the evidence in any case will be determinative of the question of whether or not the employer’s act may properly be characterized as ‘serious and wilful misconduct.’ What would amount to no more than simple negligence in one situation may well be denominated serious and wilful misconduct in another. (Hoffman v. Dept. of Indus. Relations, 209 Cal. 383, 390 [287 P. 974, 68 A.L.R. 294].) In the instant case the continued presence upon and about the derrick of so slippery a substance as crude oil would seem to point unmistakably to the necessity of strict compliance with the provisions of the commission’s Safety Order 1618 and to suggest to the person in charge of the oil-well that a ladder utilized by workmen should be provided with secure handholds rather than with such makeshift supports as the end of a bolt or an upright post supporting a railing. At all events, the question of whether, under the circumstances, the employer should have known that the failure to provide more secure and more readily accessible handholds would be so likely to jeopardize the safety of employees as to evince a reckless disregard for their safety and a willingness to inflict injury, was a question of fact to be determined by the referee to whom the evidence in the case was submitted. ’'
I have heretofore referred to the majority decision’s criticism of the commission’s findings for failure to name the managing officer chargeable with the wilful misconduct. I cannot agree with that criticism. A liberal construction should be given to the findings and the commission should not be required to speculate upon which person this court might decide was the managing officer under the evidence. The holding in the majority opinion is, in this respect, directly contrary to Ethel D. Co. v. Industrial Acc. Com., supra (the facts involved in that case are stated above). In that ease the finding was merely that the “injury was caused by the serious and wilful misconduct of the employer, a corporation.” The words managing officer, etc., were not even mentioned. In holding the finding sufficient this court said at page 709: “The statute which authorizes the recovery of additional compensation provides, as heretofore noted, that where the employee is injured by reason of the serious and *288wilful misconduct of the employer ‘or if a corporation, on the part of an executive or managing officer or general superintendent’ additional compensation may he awarded. It is obvious that a corporation is incapable of wilful misconduct. Wilfulness presupposes mentality. A corporation is a purely legal fiction possessing neither the physical nor mental attributes of a human being. The record herein shows that H. F. Owen was general manager of the petitioner corporation at the time the accident occurred and that from 1913 until 1929 he was superintendent of petitioner and that all properties of petitioner were under his supervision as superintendent. It does not appear from the record that, at any time material to the inquiry herein, any person other than Owen exercised any control or supervision over the oil well where the accident occurred. It is thus apparent that the only individual who could be charged with serious and wilful misconduct was the man who had entire supervision and control of the oil well. Since the commission’s finding can so readily be rendered definite and certain by reference to the record, no difficulty is encountered in declaring that the finding is not fatally defective in the respect claimed by petitioner.” [Emphasis added.] Likewise, in the instant ease, the dangerous condition created by the hole must have been the result of action or lack of action by a managing officer. Merely because there were several persons who might be said to occupy that position cannot alter the result. The discussion in the majority opinion in effect overrules the Ethel Company case without so stating.
The majority opinion in effect disregards-and nullifies the provision of the Labor Code relative to liberal construction. Section 3202 of that code provides: ‘ ‘ The provisions of Division IY and Division Y of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” The provision here construed (§4553) is found in division IY of the Labor Code and is therefore subject to the provisions of section 3202 of that code above quoted.
I have heretofore had occasion to call attention to the practice of some of the members of this court giving lip service to the last-cited provision of the Labor Code by making reference to it and then construing the provisions of the act so as not to extend but to deny their benefits to persons injured in the course of their employment. (See dissenting opinion, *289Aetna Cas. & Surety Co. v. Industrial Acc. Com., 30 Cal.2d 397 [182 P.2d 159].) Such decisions render section 3202 meaningless and of no effect whatsoever.
The word “liberal” is defined in Webster’s International Dictionary, second edition, as follows: “Not strict or rigorous; not confined or restricted to the literal sense; free; as, a liberal translation of a classic. Not narrow or contracted in mind; broad minded.” While it is true that a provision for the liberal construction of a statute should not be interpreted to mean that a court should engraft upon a law something that has been omitted which the court believes ought to have been embraced ^herein, or to omit something therefrom which the court thinks should have been omitted, I think it is fair to state that such a provision is intended to expand the meaning of the statute to meet cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used, and it resolves all reasonable doubts in favor of the applicability of the statute to the particular case.
Applying this interpretation to the case at bar, can there be any doubt that the conduct of those who left the hole in question insufficiently guarded and the area unlighted, knowing that other employees might traverse that area, were guilty of serious and wilful misconduct 1 I think this question must be answered in the negative; that is, that serious and wilful misconduct was. established beyond doubt. This question being answered in accordance with the findings of the commission, the next question is, does the evidence show that an executive, managing officer, or general superintendent of the employer corporation is chargeable with leaving the hole in that condition? The answer to this question is found in the testimony of the witness Warterfield that Daniels, the ship foreman, who had supervision over the entire boat and all the men on the boat, had knowledge of this condition from the time Billie Lovett fell through the hole, which was about 1 a. m., and Cornier testified that he fell through the hole between 2 and 3 a. m. Certainly, a liberal construction of section 4553 of the Labor Code with the purpose of extending its benefits for the protection of Cornier would lead to the inevitable conclusion that Daniels was a “managing officer” and that serious and wilful misconduct was chargeable to him *290in failing to comply with the safety rule after he learned that the rule had been violated by those who had placed an insufficient guard rail around the hole in question.
In my opinion, it is not necessary to resort to the legislative mandate of liberal construction contained in section 3202 of the Labor Code to sustain the finding of the commission in this case, but I am simply calling attention to this provision so that its existence may not be entirely lost sight of by this court.
In my opinion, the award should be affirmed.
Respondent’s (Industrial Accident Commission) petition for a rehearing was denied January 29, 1948. Carter, J., voted for a rehearing. Shenk, J., did not participate on petition for rehearing.