Roberts v. Smith Furniture & Appliance Co.

Conley Byrd, Justice. The facts in this case are not in dispute. The decedent Ronald J. Roberts was electrocuted when a television antenna he was erecting for his employer, appellee, Smith Furniture and Appliance Company, came in contact with a power line. The employer has accepted this case as compensable and has paid and is paying death benefits pursuant to Ark. Stat. Ann. § 81-1315 (Repl. 1976). The issue here is whether the claimants, the widow and minor child, can collect in addition to the regular allowances for death benefits, an additional 15% penalty pursuant to Ark. Stat. Ann. § 81-131Q(d) (Supp. 1975). That statute provides: “(d). Violation of Safety Provisions. Where an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided for by this Act [§§ 81-1301 — 1349] shall be increased by fifteen per centum (15%).” The particular safety statute the employer is alleged to have violated is Acts 1963, No. 148 [Ark. Stat. Ann. §§81-1401 — 81-1410 (Repl. 1976)]. The scope and purpose of the Act, supra, is set forth in section 1, Ark. Stat. Ann. § 81-1401 as follows: “Scope and Purpose. — This act [§§ 81-1401 — 81-1410] provides for the minimum precautions to be taken during any excavation, demolition, transportation of equipment, construction, repair or operation in the proximity of overhead high voltage lines. The purpose of this act is to provide for the protection of persons engaged in work of any nature in the vicinity of overhead high voltage lines, and to define the conditions under which work may be carried on safely, and the procedures and means by which these conditions may be created. [Acts 1963, No. 148, § 1, p. 399.]” Under definitions Ark. Stat. Ann. § 81-1402 (Repl. 1976), we find the following: “(1) ‘Shall’ is to be understood as mandatory. (2) ‘Should’ is to be advisory. (3) The term ‘High Voltage’ as used in this act means a voltage in excess of 440 volts, measured between conductors, or between the conductor and the ground. Section 5, Ark. Stat. Ann. § 81-1405 (Repl. 1976) provides: “Prohibited Acts. — No person shall require or permit any employee to perform any function in proximity to overhead high voltage lines; to enter upon any land, building, or other premises, and there to engage in any excavation, demolition, construction, repair or other operations, or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said overhead high voltage lines has been effectively guarded against in the manner hereinafter prescribed.” Section 6, Ark. Stat. Ann. § 81-1406 (Repl. 1976), in so far as here applicable provides: “Clearance or safeguard required when working near high voltage lines — Relocation of lines. — The operation, erection or transportation of any tools, machinery or equipment, or any part thereof capable of vertical, lateral, or swinging motion; the handling, transportation, or storage of any supplies, materials or apparatus or the moving of any house or other building, or any part thereof, under, over, by or near overhead high voltage lines, shall be prohibited, if at any time during such operation, transportation or other manipulation it is possible to bring such equipment, tools, materials, building or any part thereof within six feet (6’) of such overhead high voltage lines, ...” The penalty for violating the act is set forth in Section 10, Ark. Stat. Ann. § 81-1410 (Repl. 1976), as follows: “A person who violates this act shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or imprisoned not more than one year, or both.” The Commission under its findings of facts stated: “It is virtually undisputed that two employees of respondent employer were working in close proximity to high voltage lines where the television antenna they were erecting came into contact with a line causing the death of Ronald J. Roberts and seriously injuring Frank Posey. Mr. Roberts and Mr. Posey were the employees erecting the antenna. Apparently neither of the employees knew of the presence of the line at the time of the accident. It also appears that Mr. Claude Smith, owner of Smith Furniture and Appliance Company, was not aware of the lines at the time of the accident. At the risk of oversimplification, it can be said that the crucial question to be resolved is whether or not it is necessary, in order to find a violation of a safety provision here, that the employer have some knowledge that a ‘violation’ is occurring. Restated, the question to be resolved is the standard of proof which must be met before an employer can be found to have violated such a provision. Is there liability without fault or strict liability? Is simple negligence sufficient? Is actual knowledge that a violation is occurring required? The cases and textwriters unfortunately provide little guidance. ” The Commission then concluded that the Acts of 1963, No. 148 imposed an affirmative duty upon an employer to discover or investigate the circumstances under which the work was being done and assessed the 15% penalty. The circuit court reversed the Commission on the basis that the employer could not be assessed the penalty in the absence of knowledge on the part of the employer from which affirmative action or nonaction by the employer contrary to safety requirments may be inferred. We agree with the trial court as respects the particular safety statute involved. If we should accept the appellant’s position that Acts of 1963, No. 148 imposes an affirmative duty on an employer to discover or investigate the circumstances under which the work is being done, it would then follow that every time an employee comes into contact with a “high voltage” line, the employer could be subject to a fine of not less than $100 or imprisoned for not more than one year or both. After all the act, Ark. Stat. Ann. § 81-1402, supra, states that the term “shall” is to be understood as mandatory and the penalty provision, Ark. Stat. Ann. § 81-Í410, supra, provides that a person who violates this act shall be fined no less than $100 or imprisoned not more than one year or both. We cannot believe that the General Assembly intended to place such a stiff penalty upon the employers of this State in the absence of knowledge on the part of an employer from which affirmative action or nonaction may be inferred. Appellant argues that, since Ark. Stat. Ann. § 81-1304 (Repl. 1976), provides that it shall not be necessary for the employee to plead or prove freedom from contributory negligence, that Ark. Stat. Ann. § 81-1310(d) in effect places strict liability upon an employer for any injury and that the employer should be liable for any compensation which the employee is entitled to under the act. We find no merit in this contention. In Harber, et al v. Shows, et al, 262 Ark. 161, 553 S.W. 2d 282 (1977), we stated: “. . . Furthermore, since the statute is penal in nature, we apply the construction rule that is strictly in favor of those upon whom a penalty may be imposed. Nothing will be taken as intended that is not clearly expressed. . . .” It follows that the burden was upon those seeking the penalty to show that the employer had failed to comply with the safety statute involved. This appellant failed to do so according to the findings of fact by the Commission. Finally appellant contends that even though we determine that an employer must have knowledge of the existence of the power line, the Commission should have the ability to infer that such knowledge existed. This assertion by appellant is not supported by the Commission’s findings of fact. In fact as pointed out above, the Commission found as a fact that the employer had no knowledge of the high voltage power line. The record shows that the employer had cautioned his employees to watch for high power lines. Appellant takes this caution by the employer and the fact that houses in general have power lines and argues that any time a television antenna is being erected it is capable of coming into contact with such high voltage power lines. In making this argument appellant fails to take into consideration that Acts 1963, No. 148, applies only to power lines in excess of 440 volts. The electrical service lines to residences, however, do not ordinarily exceed 220 volts. Affirmed. George Rose Smith, Holt and Howard, JJ., dissent.