I dissent.
The facts of this case are fairly stated in the majority opinion herein, with the exception that there should be added thereto and emphasized the facts that the undisputed evidence before the commission disclosed that the defect and consequent weakness of the particular piece of planking which broke under the combined weight of the petitioner's employees was not known either to himself or to them, and that this was due to the circumstances that such defect was only and not easily observable upon the underside of said piece of planking, and that, so far as the upper side thereof disclosed, it was apparently as sound as the other pieces of plank which composed such temporary flooring. The further fact should be noted that the petitioner herein did not personally direct the laying of such flooring, nor personally participate therein, and that whatever "serious and wilful misconduct" is to be attributed to him by reason thereof was, in so far as the evidence herein disclosed, the "serious and wilful misconduct," if any, of his employees. His only noncompliance with the provisions of the act of 1921, upon the basis of which the respondents herein can sustain the charge of serious and wilful misconduct on the part of the petitioner, consisted in the fact that he caused or permitted such flooring to be laid over portions of the space to be covered thereby wherein the distance between the beams which were to support said flooring was in excess of thirteen feet without an intermediate beam sufficient to support such temporary flooring where the span was in excess of thirteen feet. It may not be questioned that the omission of the petitioner to support this particular part of said flooring with an intermediate beam would have been such *Page 392 an act of negligence upon his part as would have amply sufficed to sustain the finding of the commission with respect to a compensatory award, but whether or not such omission would in and of itself be sufficient to justify a finding that the petitioner was thereby guilty of such serious and wilful misconduct as would support the added award of the penalty complained of is the question to be decided. This court has had occasion in certain earlier cases to discuss and define the meaning of the phrase "serious and wilful misconduct" as the same is used in the provisions of the Workmen's Compensation Act here under review. In the case of E. Clemens Horst Co. v. Industrial Acc. Com.,184 Cal. 180, 188 [16 A.L.R. 611, 193 P. 105, 108], this court in undertaking to define these terms adopted the view expressed by Bevin in his treatise on "Workmen's Compensation" at page 394 et seq., to the effect that "to constitute `serious misconduct' it is probable that the legislature intended to signify conduct that an average workman in being guilty of, either would know, or ought to know, if he turned his mind to consider the matter, to be conduct likely to jeopardize his own and his fellow workman's safety." "In our opinion," says this court, "the serious misconduct of an employer under our statute may be similarly defined. There should be no difference in principle between the degree of care required of an employer and that exacted from an employee. `Serious misconduct' of an employer must, therefore, be taken to mean 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 employee." The court in that case having found that the employer in providing places and conditions of the employment which were patently unsafe was guilty of "serious misconduct," proceeded to discuss the question as to whether such serious misconduct was "wilful" and in so doing the court said: "It has frequently been said that wilful misconduct involves the knowledge of the person that the thing which he is doing is wrong. [Citing cases.] Conceding that knowledge is required it seems to us that in order to prove the requisite knowledge it is not necessary for the evidence to show positively that the person was notified of the unsafe condition of his premises, but that it is sufficient if it appears that the circumstances surrounding the act or commission or omission *Page 393 are such as `evince a reckless disregard for the safety ofothers and a willingness to inflict the injury complained of.'" In Helme v. Great Western Milling Co., 43 Cal.App. 416, 421 [185 P. 510, 512], it is said: "`Wilful Misconduct' means something different from and more than negligence, however gross. The term `serious and wilful misconduct' is described by the supreme court of Massachusetts as being something `much more than mere negligence, or even gross or culpable negligence' and as involving `conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences. [Citing In re Burns,218 Mass. 8.] The mere failure to perform a statutory duty is not alone wilful misconduct. It amounts only to simple negligence. To constitute wilful misconduct there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. (Smith v. Central etc. Ry. Co., 165 Ala. 407 [51 So. 792].)" In denying a rehearing in the above case this court reserved its opinion on the question as to "whether every failure to comply with the requirement of the Industrial Accident Commission or the statute is necessarily gross negligence or wilful misconduct. On these questions we reserve expression of opinion." Upon a mature consideration of this question I am satisfied that the foregoing quotation from the case of Helme v. Great Western Milling Co., supra, furnishes a correct interpretation of the meaning to be given to the terms "serious and wilful misconduct" as the same are used in the Workmen's Compensation Law. The question as to whether the acts or omissions of the employer in violation of the requirements of the Workmen's Compensation Act constitute serious and wilful misconduct depends upon the circumstances of each particular case. In that connection it may be stated as a sound principle to be applied to penal provisions of the nature here under review that such provisions are to be strictly construed and are not to be given application so as to impose penalties upon employers who are otherwise subject to the compensatory remedies provided for in the Workmen's Compensation Act, without a clear showing before the commission *Page 394 of such acts and conduct on the employer's part as evince not only actual knowledge of the law, but such an intentional disobedience thereof as would amount to a reckless disregard of the safety of his employees. I am unable to find in the facts of this particular case such a sufficient showing of wilful and intentional disregard of the safety of his employees as would suffice to justify the findings and conclusion of the commission that the petitioner was guilty of such serious and wilful misconduct as to bring him within the penalty prescribed by the Workmen's Compensation Act and imposed upon him in this particular case. The award of the commission, in so far as it undertakes to impose such penalty, should, therefore, have been annulled.
Rehearing denied.
Richards, J., voted for a rehearing.