Thompson v. State Compensation Commissioner

I am unable to concur in the majority opinion in this case.

I do not contend that the claimant should be denied compensation on the theory that what he did was in wilful disobedience of rules and regulations adopted and promulgated by the employer, because there is no showing in the record that such rules and regulations, if such were ever promulgated, were approved by the Compensation Commissioner. Under Prince v. StateCompensation Commissioner, 123 W. Va. 67, 13 S.E.2d 396, such approval is required to make such a rule effective.

But Code, 22-2-62, being a part of the mining laws of this State provides:

"No person, except the persons necessary to operate the trip or car, shall ride on any loaded car or on the outside of any car, or get on or off a car while in motion."

The purpose of this statute is clear. Anyone knows that getting on or off a mine car while the same is in motion is dangerous and likely to result in death or great bodily harm. Heretofore, the attitude of this Court has been to enforce this statute as reasonable and essentially necessary to guard against accidents in mines. One of the first cases on the question was Red JacketConsolidated Coal Coke Co. v. State CompensationCommissioner, 111 W. Va. 425, 162 S.E. 665, in which this Court stated in the body of the opinion that:

"An employee who takes `short cuts' involving dangerous practices, known to him to be dangerous and to be disapproved by his fellow workmen because of the danger, and in express violation of the instructions of his foreman, assumes entire responsibility as to what may happen to him as a result of such improper practices. Because of such willful misconduct an employee may not himself receive compensation if his injury is not fatal, nor are his dependents entitled to compensation if he incurs fatal injury. It would be harsh indeed to impose liability on an employer in such circumstances."

This rule was followed in Ragle v. State CompensationCommissioner, et al., 125 W. Va. 450, 24 S.E.2d 756. InThe Carbon Fuel Company v. State Compensation Commissioner,112 W. Va. 203, 164 S.E. 27, we held:

"Willful violation by an employee of a statute designed for his protection is willful misconduct under Code 1931, 23-4-2, which forbids compensation for an injury caused by such misconduct."

This ruling was followed in Chiericozzi v. CompensationCommissioner, 124 W. Va. 213, 19 S.E.2d 590. In Prince v.State Compensation Commissioner, supra, we held:

"Acts and conduct of an employee violating a statute, so as to constitute willful misconduct, within the meaning of Code, 23-4-2, as amended by Chapter 104, Acts 1937, must be done with notice of the statute and in willful disobedience thereof."

This was followed by Barta v. State Compensation Commissioner,128 W. Va. 448, 37 S.E.2d 81, in which it was held that:

"An employee in a coal mine is charged with actual notice of a particular provision or section of the statutes of this State, relating to mines and mining, when a copy of such statutes is delivered to him in person by the employer."

In the case at bar, it clearly appears that a copy of the mining laws of this State, including Section 62 quoted above, was delivered to the claimant in person. In Young v. StateCompensation Commissioner, 123 W. Va. 299, 14 S.E.2d 774, this Court, in discussing the meaning of the word "willful", had the following to say:

"Claimant contends that willful misconduct or willful disobedience of rules is not shown in this case, and insists that within the meaning of the statute wilfulness means more than mere negligence, carelessness, premeditation or intent, but must include an intent to do a wrongful act, and cites 71 C. J. 762, King v. Empire Collieries Co., 148 Va. 585, 139 S.E. 478, 58 A.L.R. 193 in support of this contention. While it is true that a willful act, in most cases, may be said to be wrongful, we do not think that intent to do a wrongful act is a necessary element. Knowledge of the statute or rule promulgated and deliberate and intentional violation of either constitutes willful misconduct. Riverside Dan River Cotton Mills v. Thaxton, 161 Va. 863, 172 S.E. 261; Red Jacket Consolidated Coal Coke Co. v. Compensation Commissioner, 111 W. Va. 425, 162 S.E. 665; Carbon Fuel Company v. Compensation Commissioner, supra. The Riverside case discusses the case of King v. Empire Collieries, Co., supra, and the prevailing rule in Virginia and in this state is that only knowledge, deliberation, and intent are necessary to establish willful misconduct or willful disobedience to rules. The danger to an employee or to his fellow workers, growing out of misconduct or a violation of rules, is just as real if it be without wrongful purpose, as it would be if accompanied by a vicious or criminal intent."

In Stevely v. Compensation Commissioner, 125 W. Va. 308,24 S.E.2d 95, we held that:

"An act of an employee, which may contravene instructions of his superiors, or of the state mining authorities, or be contrary to generally known and accepted practices of similar employees, but which appears to have been done impulsively or spontaneously in the face of a sudden and unforeseen emergency, does not amount to `wilful misconduct', within the meaning of Code, 23-4-2, so as to bar compensation to a dependent for the death of such employee resulting from such act."

In the majority opinion in the case at bar it is stated:

"We cannot, of course, say that Thompson's action in attempting to board the car just as it was moving out was unconscious, nor can we say that it was involuntary. It was, however, inadvertent, and in the face of a sudden emergency created by the movement of the train immediately after claimant gave the signal to the brakeman and before he had time to get into the empty car."

The theory, sometimes advanced, that in a compensation case wilful misconduct must involve a quasi criminal tendency, is not stressed, or even asserted.

Further considering the question of wilful misconduct it is stated in the body of the opinion in Prince v. CompensationCommissioner, supra, by quotation from other authorities, that:

"`Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, as distinguished from inadvertent, unconscious, or involuntary violations.'"

This was a fact overlooked in the majority opinion, when the statement was attributed to the dissenting opinion in that case. The dissenting opinion in that case only adopted the statement of the majority opinion. Of course, all will admit that negligence, even if gross, or the exercise of bad judgment, does not alone, or taken together, constitute misconduct barring compensation.

The above cases have clearly established the law on the subject of wilful misconduct. We find that such misconduct bars compensation to one who has been guilty thereof. Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, provides:

"Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any sum from the workmen's compensation fund, or to direct compensation from any employer making the election and receiving the permission mentioned in section nine (§ 2519), article two of this chapter, or otherwise under the provisions of this chapter, on account of any personal injury to or death of any employee caused by a self-inflicted injury, wilful misconduct, wilful disobedience to such rules and regulations as may be adopted by the employer and approved by the commissioner, and which rules and regulations have been and are kept posted in conspicuous places in and about the work, or the intoxication of such employee, or the failure of such employee to use or make use of any protective or safety appliance or appliances prescribed by the commissioner and furnished by the employer for the use of or applicable to such employee. * * *"

In this case the claimant does not deny that he violated the provisions of Code, 22-2-62 against an unauthorized person getting on or off a car while it was in motion. In his testimony he admits such violation. We are, therefore, not called upon to pass upon any factual question, unless it be whether the action of the claimant was inadvertent and due to an emergency. On this point, how can it possibly be reasoned that an act requiring the physical effort necessary to board a moving train was inadvertent? What is an inadvertent act? According to Webster it is, "not turning the mind to a matter; heedless; negligent; inattentive". It is close to an involuntary act, and there was, and could not have been anything involuntary in what claimant did. His act was one which required intent and physical effort, and had in it no element of inadvertence. Turning to the supposed emergency, what was the emergency which required him to board this moving car? It can not be decerned by the ordinary mind, from anything in the record before us. An emergency is defined by Webster as "An unforeseen combination of circumstances which call for immediate action; also, less properly, exigency." There was neither an emergency nor an exigency when claimant boarded a moving car. All he had to do to continue his work in regular routine was to walk 500 feet. In the majority opinion it is stated:

"As heretofore indicated, there is no evidence in this record that the employer ever expressly permitted claimant to get on or off moving cars; nor is there any evidence that the employer acquiesced in such practice, * * *."

And the opinion then states:

"* * * and, as this claimant was in the act of getting on a car while in motion, he is barred from recovery, unless at the time and place he was injured, he was a person `necessary to operate the trip or car'."

Thus, it appears that, according to the majority opinion, every avenue to the allowance of compensation in this case has been closed by the statute, and the rulings of this Court, which are recognized and presumably approved, save on the theory that, in some way, quite beyond my comprehension, the claimant's presence on this car and trip was necessary to its operation.

The word "necessary" is defined by Webster as: "A thing that is necessary or indispensable to some purpose, something that one can not do without; a requisite; an essential." What made the presence of claimant on this moving car indispensable, or requisite, or essential?

Who is it that operates a "trip or car"? Obviously, those who control the machinery and equipment used for that purpose. As is well known, motors, with cars attached thereto, are operated in mines for many purposes: among others, to carry men to and from their working places in the mine; to carry machinery, tools and materials; to transport timber for posting working places and the approaches thereto; and for hauling coal out of the mine. In each of these activities, men are employed, and each employee, and all together, contribute to the all-out purpose of mining coal. But the "trip or car", is operated by the men trained and employed for that purpose, and, in practice, they are a motorman and a brakeman, who work under the control of a mine superintendent or a mine foreman. No other persons have any control as to how the "trip or car" is to be operated. They have had no training for that work, and the help of no other employee is necessary or needed in such operation. Claimant was a timberman whose duty it was to set timbers in the mine. To set timbers, it was necessary to have them placed at the location in the mine where needed, and this was done by the method of transporting them into the mine by motor-propelled cars operated by a motorman and a brakeman. In the present instance, timber was loaded on the car to be moved a distance of 500 feet to another location in the mine. What necessary part did, or could, the claimant play in this simple operation? All that was involved was a signal by the brakeman to start the trip, and the motorman's operation of power to the motor. If claimant had remained at the loading place, the trip would have been operated with the same degree of efficiency as it was handled in the circumstances. Not only was the claimant not necessary to the operation of the trip or car, but there was absolutely no place, in connection therewith, where he could have been of any aid whatever. To hold that he was "a person necessary to operate the trip or car" is to fly in the face of all reason, and cannot, in my judgment, be justified on any ground whatever. Mere assertion cannot make black white. Common sense and every other consideration based on reason brands the holding as unsound and indefensible.

It is said that claimant's violation of the statute expedited the trip, and served the employer's interests. Waiving any reference to this unusual interest in the employer, to what does this strange argument lead? Simply this: if by violating the law you serve an employer's interest, well and good, your law violation will not be held against you; the statute enacted for the protection of all workmen will be ignored, and in effect nullified, merely to allow compensation to a single miner who, though entitled to sympathy, has brought on his troubles by his own plain and admitted violation of a law enacted for his benefit, and for the benefit of those similarly situated. If this holding is to be established as law in this State, then mine workers may board moving cars at will, if by so doing they get to their working places in a shorter time, and thus produce more coal for their employer, and in that manner better serve his interests. I am unwilling to ignore the plain provisions of the statutes of this State, and thus make ineffective statutes designed to protect all workers in mines, merely to award compensation to one, or, for that matter, any number of applicants, whose injuries have resulted from his or their own wilful misconduct.

The lightly veiled insinuation that those who may disagree with the majority opinion pay lip service only to the recognized principle that in dealing with compensation law a liberal interpretation, in favor of claimants for compensation, should be applied, and that in deciding cases they follow a technical interpretation and application of such statutes, demands attention. First, may I ask what is it that is technical in the claim that claimant was not necessary to the operation of the "trip or car"? It is a plain contention which may be disposed of by the use of that type of reason which is applied to the every day transactions of life, and is widely divorced from all so-called technical consideration. Second, may I ask what rule of liberality in construing a statute, requires us to give to it an interpretation which is contrary to all reason or logic, and which serves to destroy the very purpose for which the statute was enacted. The concern which is felt by employers, employees, and the agencies of each, over the distressing injuries and loss of life in the coal mining industry, should prompt us to strictly enforce laws, rules and regulations duly enacted, or adopted, legally approved and promulgated, which have for their purpose the saving of human life, and the avoidance of human suffering. It is the only contribution this Court can make to that end, and any court which overlooks the importance of such enforcement, and which through its decisions in individual cases emasculates enactments for the protection of employees in any activity, ill serves the cause of the men who toil in the mines, factories or other industrial enterprises, of this State. If, in taking the position that such laws and regulations should be reasonably enforced, I am paying lip service only to a liberal construction of our statute, so be it.

Speaking of technical constructions of these statutes, I am willing to contrast the position of the majority, and that of the minority, in the case at bar, and let interested parties judge by whom the technicalities, if any there be, are employed.

For reasons above stated, I dissent; and I am authorized to state that Judge Haymond concurs herein.