Barta v. State Compensation Commissioner , 128 W. Va. 448 ( 1946 )

I concur in the result, but I do not agree that delivery of a copy of a statute to an employee, without more, charges such employee with actual notice of its provisions and penalizes the employee and his dependents with loss of compensation benefits under Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937.

Wilful violation by an employee of a statute enacted for his protection is wilful misconduct, and bars an employee and his dependents of the right to compensation benefits. Carbon FuelCo. v. Comp. Commr., 112 W. Va. 203, 164 S.E. 27.

The question here is: Can wilful violation of a statute be predicated upon presumed notice, inferred notice, or notice "charged" to an employee? In Fuel Co. v. Comp. Commr., supra, the employee was given a copy of the mining laws of the State. His foreman saw him riding on a trip of cars in violation of the statute, chided him and advised him that he would be discharged for a repetition of the act, and just prior to the fatal accident a fellow-employee directed his attention to the fact that he was violating the statute. The acts of the deceased clearly showed that his violation was intentional and wilful. The principle to be applied in such instances is epitomized in the following excerpt from the opinion in the case of Fortin v. Coal Company, 217 Mich. 508, 187 N.W. 352,353, quoted with approval in the case of Fuel Co. v. Comp.Commr., supra: "Such reckless disregard of the statute and invitation of the very consequences the statute was enacted to avoid, being a voluntary act on the part of the deceasedinvolving plan and effort and calculation, and not being in furtherance of any of his duties, nor under the direction of his superior, constituted intentional and willful misconduct on his part and bars compensation to his dependents." (Italics supplied).

Following the decision in Carbon Fuel Co. v. Comp. Commr.,supra, this Court had the same question before it in three cases, and the manner in which the principle was treated in those cases is set forth in the following quotations from the opinions therein: "* * Before such violation can be asserted as a bar to benefits under the Compensation Law, it must be shown that the employee had actual notice thereof and disregarded the same." Prince v.Compensation Commissioner, 123 W. Va. 67, 69, 13 S.E.2d 396. "Knowledge, deliberation and intent are the necessary factual basis to establish wilful misconduct." Young v. Comp. Commr.,123 W. Va. 299, 303, 14 S.E.2d 774. In Chiericozzi v.Compensation Commissioner, 124 W. Va. 213, 217, 19 S.E.2d 590, Judge Fox, after discussing and stating the rule laid down inFuel Co. v. Comp. Commr., supra, uses the following language: "But as corollary thereto we held in Prince v. CompensationCommissioner * * * and Young v. Compensation Commissioner * * * that actual knowledge of the statute was a prerequisite to its wilful violation. A different rule prevails when there is disobedience to rules and regulations, approved by the Compensation Commissioner * * *."

The rule prior to the decision in the instant case was well established that actual notice of a statute must be given to an employee, and that a violation of such statute following actual notice is planned and calculated. The factual basis is necessary before it can be logically said that an employee planned or calculated to violate a statute. It is my opinion that in the instant case the Court has departed from the rule requiring actual notice of the statute before an employee is charged with wilful violation thereof.

The Court's opinion in the instant case states that to require the employer to give notice other than by delivery of a copy of a statute to the employee would require a practical impossibility. I do not think so. The attention of a prospective employee could be invited to the provisions of the statute when he is employed and notice of amendments to the statute could be given to all employees by word of mouth.

I think actual notice, or as stated in the case ofChiericozzi v. Compensation Commissioner, supra, actual knowledge cannot be assimilated with presumed or inferred notice based on delivery of a copy of the statute. A statement that actual notice may be charged to a person involves a contradiction. If an employee has actual notice of the statute, as in Fuel Co. v. Comp. Comr., supra, there is no occasion to charge him with notice. If he is charged with notice from the fact that a copy of the statute has been given him, notice may be presumed, inferred or charged to him, but such notice is in no sense actual.

As has been said many times in the opinions of this Court, the Workmen's Compensation Law was enacted for beneficent purposes. I think the beneficence of the statute is adversely affected in the particular here discussed, by the holding set forth in the first point of the syllabus in this case. I regard that part of the opinion herein as an incorrect application of the provisions of Code, 23-4-2, and Code, 22-2-62.

It is my view that actual notice may not be charged, presumed or inferred from delivery of a copy of the statute to an employee. I do not believe the holding in the instant case, in which an employee is charged with actual notice of the contents of a statute is supported by reason or authority. I would adhere to the former holdings of this Court in the Prince,Young, and Chiericozzi cases.