*1 478 Harvey, leading 54 W. Va. v. case of Waldron Rep. this Conrt 959, 102 Am. E. St. syllabus point no there is 2 of the “Where
held
part
pleading
decree,
decree,
to warrant a
merely
part
voidable, but
is not
decree,
it,
or such
opinion in
The
not on a matter in issue.”
void, as
is
pertinent
“‘A
these
statements:
case contains
proofs,
pleading
and
decree
a conclusion of law
is
proofs
pleading
failure of either
and where there is a
there can be no decree.’
Schilansky,
Keneweg
v.
Haught,
County cause reversed and set aside to dismiss this remanded to that court with directions plaintiff recovery prejudice suit the cost without for the value of the the to seek placed upon permanent improvements which he has controversy account land and determination any proper pro- between him and the defendants ceeding purpose. for that and remanded
Reversed with directions. Jones, Admrx., Estate Inize Kenneth Jones, Deceased Co., etc., Appalachian et al. Electric Power (No. 11086) May July 4, 1960. Submitted Decided 1960. *2 é Shaffer, Jr., II. Shaffer, G. Shaffer, II. G. Shaffer plaintiff in error. LopinsJcy, Samuel D. Arthur T. Ciccarello, for de- fendant error.
BROWNING, PRESIDENT: employee Harry
Kenneth Jones, an Hatfield and Company, contracting company, engaged in the construction a road over the lands of the Red Company, designated Parrot as de- Coal hereinafter a crane fendant, was electrocuted when the boom of working around which he was came into contact with belong- power an overhead, 2300 volt line uninsulated, ing Appalachian Company, Electric Power here- Company. inafter widow, called Power His Inize against employer, Harry a claim Jones, filed Hat- Company, Compensa- field and with the Workmen’s statutory tion Fund and was awarded the benefits to dependent herself and three then, children. She in- estate, administratrix her deceased husband’s wrongful against stituted action for this death Company. defendant and the Power At the conclusion plaintiff’s a motion for a evidence, directed verdict Company in behalf of the Power sustained proceeded against court. The case the defendant, against jury which the in favor returned verdict judg- the amount of $20,000.00, and judgment ment thereon, was entered to which *3 granted supersedeas a writ of error and on September 28,1959. dispute.
The material in Hatfield and facts are not Company, independent engaged an. was contractor, by in land, defendant to construct a road across its necessary bridge of which it one or course was bridging accomplished more streams. This was joining corrugated pipe, section of feet 3% approximately length, weighing diameter and 7 feet in necessary pounds. between 500 It was to use 350 and raising pipe a from its crane excavation and position lowering beside the road and into the question having crane in a 45 location, desired foot along rope passed a boom, which wire was pipe. At the connected with a chain which secured the plaintiff’s pulling time of the accident, decedent rope, in an chain, on the wire or attached effort to properly place position pipe gave it in on the signal operator a raise the De- the 'crane boom. passed operator’s view, cedent then from the crane but ‘ ‘ ’’ give signal, the raise ffellow continued to
481 line of uninsulated until the boom touched the overhead Company. feet line was This 2300 volt the Power from the ground a cross-arm and on one side of 6% Immediately after- feet from a similar line. distant admittedly dead, to he wards, decedent was discovered operator been warned electrocution. The crane had two a week or foreman, and, about the wires his previous outside con- accident, defendant’s operator foreman had told the crane “to he struction careful around there that there was
a lot of electric get that boom into them.” wires and to watch and evidence that boom had struck There was also previous day anyone. A wire the without motion for a directed verdict behalf of the defendant plaintiff’s at the conclusion of evidence was overruled. testimony by Defendant’s evidence consisted employee of the mini- State Road Commission height Highways mum a A volt line over Class general manager in this State is and the feet, defendant who on that he testified, examination, direct was familiar accident, with the scene of the had seen capable the crane involved and that such crane was moving power. under its own cross-examination, On anyone this witness testified that neither nor he, or in behalf, defendant, behalf of the time Company called Power to determine whether power away lines could be switched the location operating, in which the crane was but admitted that that could have been done. Defendant also, avowal, present introduced evidence that the granted by value of the award Compensation the Workmen’s Fund to the dependent and her three children per $14,- payable at the rate of month, 987.00, $105.00 *4 paid total amount to the date of the commencement the action of At the conclusion of de- $4,203.39. evidence, fendant’s motion second for a directed verdict in behalf of the defendant was overruled. jury
After the had received the case and deliberated period jury for a of 1 hour and 15 minutes, the re- requested to the turned courtroom and that- the testi- 482 manager general
mony
read,
be
of defendant’s
testimony
objection, the entire
over defendant’s
and,
jnry,
re-
which then
to the
was re-read
of that witness
its deliberations.
tired and resumed
assignments
in this
made
error are
Seventeen
(1)
may
as follows:
be summarized
overruling
ver-
for a directed
motions
of defendant’s
giving
(2)
Nos.
Plaintiff’s Instructions
dict;
1,
(3)
Defendant’s Instruc-
4
the refusal of
5;
and
re-reading
(4)
I
F,
K;
and
A, D, E,
tions
testimony
manager
jury,
general
of defendant’s
(5)
jury
re-
case;
received the
and
after the
had
require
received,
a remittitur of the sums
fusal to
to
children
received,
the widow and
Compensation Fund.
Workmen’s
question
whether
for consideration is
The threshold
present
a factual
the evidence was such as
for determination
jury upon
the issue of
primary negligence
The evidence
of the defendant.
relationship
and the
that the
deceased
shows
that of invitor and invitee. The owner
defendant was
or
duty
occupant
to an invitee the
land owes
premises
upon the
invitee,
of due care. The
of
who comes
occupant by
owner or
has a
invitation,
reasonably
premises
for the
assume that the
are
safe
purpose
for which he is invited to come
premises.
Co.,
v.
Penn
Starcher
South
Oil
W. Va.
firmly
However,
occupant premises is not in safety trespasser, surer of the even when such of a licensee, invitee,
person injured by coming or killed high voltage Maggard contact with Appalachian electric wire. Co., Electric Power W. Va. Co., E. 27; 163 S. 880, the effect that the rule stated above is Waddell v. New River many 473; 93 E. 2d. cases cited therein
applicable even injured in the case of children who or killed coming charged in contact with an uninsulated wire electricity. with These decisions are to the effect
483 high voltage the maintenance of an uninsulated is not alone sufficient to establish wire negligence. The 3rd. Syllabus Musser, Point of Adm’r. v. and Wes Norfolk Railway Company, tern succinctly 122 W. Va. 9 365, S. E. 2d. 54, liability
states the rule which is deter person charge mined. It reads: “A in of or main taining instrumentality inherently dangerous is not injured thereby liable to one who is in a manner which reasonably anticipated.” could not be refusing
The trial in court, to direct a verdict for undoubtedly upon defendant, mentioned and relied Humphreys Raleigh the case of v. Co., Coal and Coke plaintiff 73 W. Va. E.S. 803. The in that action injured by coming was into contact with an uninsulated electric part wire in the coal mine of his in a visiting the mine which he was for the first time. The wire was about 4 feet from the The action floor. prior
was instituted to the enactment of a workmen’s compensation law in this State. This Court held that person using mysterious “the silent force called electricity” place persons in a where he knows other may exposed precaution to it “is bound to take safety by their insulation of the instrument used its application adequate or some other means.” However, easily distinguished the those facts that case determining the instant case. that the main tenance of the uninsulated wire under the circum negligent part stances a was act on the of the defendant, ‘‘ break-through the Court said: The which the bare and air course
part of the wire in was used passage ways places ordinary were not nor work. Nevertheless, there occasion them, enter when they adopted proper pump were locations for the ‘pump duty and feed wire. There awas runner’ whose entering by break-through was, and air course through pump which keep the wire ran, visit the operation necessary, it in when and it was also neces sary place pump place someone to in that Any persons stumbling, remove it. slipping these falling, inadvertently throwing out a hand or strung,
veering were on the wire wall conse- and suffer into contact with it to come liable * * approxi nearly quént injury. A case more Appalachian Maggard mating case is instant 163 S. E. Co., Power Electric which the coming injured by in contact was uninsulated high voltage defendant, wire of with a jury aside the of error set but this Court verdict it. independent writ *6 upon judgment the in favor reversed and employee plaintiff of an an the was There, here, with into contact and came contractor, height, when he ascended which was 32 feet wire, the equipment piece the near of mechanical elevated those who stating operate The after that Court, wire. containing electricity must exercise electric lines high degree on, “are that where such lines care, and buildings dangerously bridges, like the near, or and reasonably go, expected the to where workmen adequate used must or other means wires be insulated * * protection.”, where the wires for are at a said: But they height in not the air which would dangerous proximity persons come in contact or of reasonably expected them, owner not to come near the negli chargeable operator the with lines is gence doing an had no where some act which he one, expect anticipate, injury reason suffers might not have been if the wires had been suffered * * higher at a that the de elevation. guilty primary not, fendant was as matter of law, “* * * negligence, could Court said: defendant anticipate reasonably plaintiff not no place and legal duty it at that rested to insulate its wires * * higher. or raise them While the testify in that case did not as to whether knew the he wires unaware of their were electric he was wires, overhead or whether plaintiff’s foreman
nature, testified though they high he did not know were that, tension they he were wires, knew electric and had wires requested the defendant to raise with them, which re quest complied. the defendant The Court further said: ‘‘ request way to move the wires out of apparent construction was done to satisfaction company. ap the construction The contractor was parently danger satisfied that and de obviated, anticipate fendant could not the Construction Company grossly neglect precautions would reasonable safety employees. ample space for the of its There was operation for the safe of the steam shovel and its space ground boom the 32 feet of between necessity elevating the wires; and there was no boom to the wires in order to release the clamshell gross negligence part cable. It was on the the contractor to so, do and then send its great danger.” In into the instant while the evi case, conflicting plaintiff’s dence is as to whether decedent among group who had been warned about the undisputed operator wires, that the crane been had so both warned his own foreman and the defend warnings foreman, ant’s outside which by have should impressed been on him the fact that the boom of day previous, the crane hit the had wires on the plain that the wires were view.
Upon prior the facts this decisions of general legal prin- and the well established *7 ciples applicable thereto, the Court is constrained to duty hold which failed to this defendant owed no to the deceased discharge, it and, therefore, it guilty negligence. finding precludes of not Such necessity proximate aof discussion of and cause, of assigned the other errors. this
However, case is here on writ error and by demurrer the evidence, can therefore, judgment, reverse the of the set aside the verdict jury grant possible a new trial. It is might new evidence that such a trial had, be assignment for that reason one other of error will be discussed. This court remittitur in compensation Court is view that the trial
correctly refused the defendant’s motion for a amount as the result of awards of paid
made or to the widow, and the de- pendent by Compensa- children of deceased, the State
tion Commissioner. In Ott, 629, Mercer v. 78 W. Va. recovery right 89 S. E. 952, was held that damages against personal repre a tort feasor prevent sentative of the deceased did not the deceased’s dependents receiving compensation from from the Compensation Workmen’s Fund. In Merrill v. Mari Torpedo etta Co., 79 W. 112, Va. 92 S. E. it was employee compensation held that an who had received injury Compensation for an from the Workmen’s Fund thereby estopped maintaining was not an action damages injury against person for the same a third negligence injury. not his whose caused his quotation opinion perti This in that case is injury negligence nent : “Plaintiff’s was not due to the employer, according finding of his but, to the jury, negligence independent defendant, particular compensation contractor to ado work. The deny right act does not of action ato workman for employment, received in the course of his unless negligence is that of the master, the master was liable at the common law. If the em ploye injured employment in the course of his he compensation is entitled to injury out of the fund, whether his negligence was occasioned of the master negligence per not; if occasioned of a third right son out of the fund is not thereby right against nor affected, is his of action person causing injury impaired. such third provision of the act is somewhat the nature of life person may and accident insurance. That a pro tected accident insurance, and at the same time against person have negli whose gence produced resulting injury, the accident in his Appalachian well settled.” Brewer Constructors, Inc., al., et 135 W. Va. 65 E. 2d this Court language: Christopher used this Company “The Coal they and its also contend that can not be joined with the other defendants this action, for *8 only judgment the reason that there can be one herein, arguing any judgment against rendered them necessarily would be reduced the sum received or compensation fund, receivable from the "workmen’s judgment against and that defendants the other principle A would not be reduced such sum. familiar requiring is that a law, authorities, no citation of injury. recovery can have one why apply not where We see no reason the rule should recovery partial recovery by way of an award is compensation from the workmen’s fund. It is also injured well settled that ‘Partial satisfaction of the person by joint pro one satisfaction, tort-feasor is a Eary, syllabus, tanto, as to all.’ Point 5, Coal Co. v.
115 W. apply E. 573. rule should also Va. S. This partial payment injury
where for the has been compensation made from the fund on ac workmen’s joint being count of one of the tort feasors sub ’’ scriber thereto.
It will be noted that in the case it was held Mercer dependent employed that the aof deceased workman compensation a subscriber to the fund workmen’s compensation could receive fund and also damages against maintain an action for a tort-feasor other than de the deceased’s who caused cedent’s death. in the Merrill Likewise, was held compensation that “An case an who receives fund, from the workmen’s is thereby estopped person, not his to sue third employer, negligence injury.” Pt. whose caused his Syl., Torpedo Co., Merrill v. Marietta 79 W. Va.
92 E. 112. While neither case was the opinion raised, remittitur the statement in the provision Merrill that “The of the act some case what the nature of life and accident insurance. That person may protected by insurance, accident against per at the sons whose time have of action same negligence produced resulting the accident injury, persuasive well settled.” is least. Mercer in 1916, case was decided the Merrill authority case in 1917. At that time there was little on question, All the except but now it is abundant. of the states Hampshire Ohio, New Yir- West
three — *9 488 although
ginia adopted subrogation statutes —have “assignment” they statutes. some are called states they numerous. These statutes are as varied as attempt review them. These be made here to No will categories: general (1) no sub- fall into five statutes rogation, subrogation subrogation, (3) (2) absolute employee priority, (4) coexistent, and and direct subrogee priority. (5) Com Larson’s Workmen’s pages pensation Subrogation, 205-250. 2, 74, Section Virginia falls within stated, As heretofore West support footnotes first class. The cases cited the language quoted by in the heretofore this Court employee claim an or the Merrill case that employer dependent employee against of a deceased compensation of either for against benefits and the claim party
a kind. third tort-feasor are different solely statutory The first is for benefits and the second liability. pro from common results law Under Virginia Chapter en Code, visions of 23 of the West Compensation, relationship titled be Workmen’s employer tween the a to the fund and who is subscriber implied employer is one of contract. The agrees injured employees may compensated that his be injuries a sustained the course of and as result employment regard negligence of their without except in certain instances not here material. Thus the * * “* language in the well Brewer case that: It is also injured person settled that ‘Partial satisfaction of joint pro tanto, one tort-feasor is a satisfaction, * * as to all.’ a correct statement of the law but inapplicable plaintiff where has received com pensation from collateral source such as workmen’s compensation benefits, accident and health insurance, Shachovsky or otherwise. Trumbull Furnace Co. v. Cliffs (Ohi 24), citing 146 N. E. 306 Newark o—1 9 Paving (N.J.), v. Klots 91 91; Ott, Co. A. Mercer v. 629, 89 E. 952; Merrill v. Marietta Tor pedo Co., 669, 79 W. Va. S. E. L.R.A. 1917F, Negligence (6th Ed.), 1043; and Shearman &Redfield, sec. 765. The case is not a of the deceased in the instant
“joint tort-feasor”; he could not have Chap provisions of a “tort-feasor” under become had been death 23 of the unless the deceased’s ter Code provided Section due to his deliberate intent as that a correct Article as amended. It is injury, “recovery” but the can have one compensation, statutory contractual award widow received deceased’s “recovery”. precise question here fund was presented Company arose Ohio Public Service Sharkey (Ohio 1927), it will Ohio, E. 687. 160 N. — no recalled, is that has subro- one three states gation compensation, statute. covered Deceased, *10 by alleged negligence party. killed of a third the of The widow and minor children awarded the deceased were compensation the administrator then and against party alleged third instituted tort-feasor. the of the defendant’s One defenses compensation payment up answer set the of the dependent Supreme and widow and the children, holding affirmed the that the action lower courts language in the of could be maintained but that the “Recovery law action at can third headnote such only damage pro portion of be and for such the tanto, compensated
as not been for allow Compensation Act.” ance under the Workmen’s opinion the the Court said: enactment, the of as stated "In absence statutory above, the in which de- jurisdictions decisions from for a legislation providing
tailed has been enacted record situation such as that this presented However, the cannot reason squarely apply. it is controls. The common-law doctrine that ruling inequitable to allow a doubt satisfaction (sic) expressly the was not either abrogated, same injuiy the Act Compensation Workmen’s impliedly, by Code, of purpose sec. 1465-37 et the (Gen. seq.), insure to their injured during which workmen so employment compensation, apt- Greenleaf ” it, states commensurate with the ly precisely injury.’ years precise again pre- Two later the issue was sented Ohio Court Truscon Steel Co. Trum- (Ohio), N. bull Furnace 166 E. which Co. Cliffs party employer sought to recover from a third it tort-feasor the amount had been required employee injured negli- pay to an gence (see party of such third Trumbull Fur- Cliffs Shachovsky, 306), nace 146 upon Co. v. N. E. the hold- ing Sharkey pertinent in the case issue was language overruled In this unanimous Court. recognizes reasoning the Court its erroneous and hold- ing Sharkey in the case: states, “In Compensa- some of the the Workmen’s tion Act there has a third where recognizes right of reimbursement been a full in a direct suit against recovery negligence whose was the cause of party but kind in the injury, nothing appears Moreover, Compensation Workmen’s Act of Ohio. if a of insurance had taken out policy been steel the insurer to reim- company, obligated burse be steel company any payments might to make to its required injured pur- employees suant to the terms of the Workmen’s Compensation Act, would insurance, statute, policy under the void, entirely no could be recovery
made thereunder tire insurance against company by the steel provision upon In view of company. statutory the lack of subject, and also in view the provisions to section unable supra, we are 1465— see merit in the claim of error. “It is urged that this with inconsistent *11 the third of paragraph case of syllabus the Adm’r, Ohio Public Service Co. v. Sharkey, Ohio St. E.N. 687. reads: paragraph This “ in such ‘Recovery action at law be pro can only tanto, and for such only portion of the as has damage not compensated been for allowance under Workmen’s Compensation Act.’ “All of the of members this court think that the two decisions irreconcilable on principle. The deci- sion in the Sharkey Case was rendered after unusual consideration, both upon hearing upon ap- plication not, however, rehearing. court did at that time have the benefit of the presentation of many considerations which the instant case of- fered. think We that the decision the third para- graph of syllabus the Sharkey Case is erron- eous, and therefore overrule it.” evaluating significance language here of quoted important tofore it is Brewer to note the issues before Plaintiff had this Court. trespass per an
instituted action of on the case injuries against Christopher Company, sonal corporation, Coal employees,
Hinerman, one of its and four alleging negligence against others, defendants concurrent all six allega a one-count declaration. The tions in the declaration, are referred to in the opinion charging Christopher of this Court, and Hiner- injure plaintiff man with “deliberate intent” to would plaintiff employee Christopher indicate that was an Christopher exempt liability by and that being virtue of a subscriber to the workmen’s com pensation plain fund, Code, 23-2-6,as amended, unless tiff’s was caused its “deliberate intention * * * produce injury.” Code, 23-4-2, as amended. It clear how this would have been allega raised on demurrer in the absence of an tion in the declaration that was, the time injury, Christopher, of his and that Christopher had “elected” to become a subscriber to the workmen’s fund and was not “in payment premiums default in the of such and shall complied fully provisions have with all other of this chapter.” Code, 23-2-6, as amended. separate
The trial court sustained the demurrers of each of the defendants and certified to this Court questions: two “1. Whether there exists in this ac- misjoinder parties tion a defendant. 2. Does the allege against Declaration cause the de- properly fendants, or of them?” The Court held misjoinder parties there was no and that a alleged against cause of action four of the de- Assuming fendants. the issues heretofore men- Christopher tioned were raised as to and Hinerman, clearly allegations the Court held that declaration were not sufficient as to those defendants provision under the “deliberate intention” of Code, 23-4-2, questions as amended. Thus, two fully certified to this Court were answered. The *12 492 ' arisen
question have not could of “remittitur” litigation made point trial court in the where questions ruling this Court. to its and certified its only Upon can decide this Court certification, trial court. questions as are certified Appliance Dandy Co., A. Electric Co. v. General Pope M. Edward v. 310; E. 2d 491, 103 S. Corp., 584; E. 2d 218, 75 S. 138 W. Va. Rude Carrier Realty 605, 73 Harber, 137 Va.W. Pancake Co. v. 67 S. E. Kidd, 136 W. Va. v. 438; E. 2d Means S. Arter, 135 W. Va. 740; 2d Weatherford E. 2d 572. recovery at law in an action is had
Where employee against under the “deliber- only “any provision, ex- it shall ate intention” damages receiv- amount received over the cess of chapter.” as amended. Code, 23-4-2, able under this Christopher applied provision could have This Upon the remand event. and Hinerman remaining jury de- for the could have found trial the question otherwise the inadvertanee or fendants of by way might have arisen relief of remittitur Christopher of the case. went out and Hinerman when What was said opinion the rule as to
in the Brewer injured person by “partial one satisfaction pro joint all” tanto, as to satisfaction, tort-feasor is “partial payment applying for the where fund on account made from the been being joint there- a subscriber one of the to” was tort-feasors inapplicable. into not carried The rule was opinion syllabus relative what in the the to it was was said probably In view of the dictum. language
this Court contrary disapproved. opinion in the Brewer County judgment Boone Circuit Court jury is set aside and reversed, verdict is defendant awarded a new trial.
Reversed; verdict aside; set trial new awarded. Judge, dissenting: *13 Given,
Assuming stating in 3 of that the Point the Court syllabus, clearly apparent as from the discus- seems (cid:127) opinion, may sion in its that no remittitur he filed compensation case where received, has been “injury” receivable, for an or for “death”, from compensation the workmen’s fund, means double recovery damages may every of be had in such case, by employee against person, in an action an a third joint aor tort I feasor, must dissent. Compensation
In Mercer, Ott, Adm’r. v. State Com precise ques missioner, 78 S. E. posed, opinion taking
tion was the Court its notice important question”, proceeded that “This is an to question. a full discussion and decision of the The subrogee first Court considered the of a to have damages the amount of recoverable an action re by compensation paid duced the amount of to an employee. Its was to the effect that there recovery, citing McGarvey could be no double v. Inde pendent Co., Oil & Grease Wis. wherein it was stated that, circumstances, “can not have but one satisfaction”. The then stated: nothing pro “There is in our statute which would employee damages an hibit who has received from person, receiving a third from from this fund provided by by way compensation amount law damages arising out of the same act. We must there rely upon principles fore of common law the solu questions tion of the It involved. is conceded that representative of the deceased received $1250 damages company. from the railroad It is claimed by compensation commissioner that damages having given was liable for for not the de place ceased a safe in which work, to and that there recovery payment damages by fore the one tort-feasor released the other. But does it follow that company because the brick would be released at com may mon law under these circumstances that no resort compensation be made under our statute for further dependent? think We who is fund one out of this company money railroad recovered not. The company be distributed would brick or from the provided law in proportions parties in the personal left estate to the distribution relation a person dying received while sums intestate, paid more one or compensation fund would may dependents which The amount of for deceased. causing wongful another death act be received may jury fair deem sum as fixed law such exceeding amount of just, $10,000.00. person injured earnings average weekly the at the time is the benefits. compute which made the basis By act it the workmen’s injured a fund to to create was intended apply dependents can in case of death or his *14 compelled being col compensation, to instead of for lect the same largely partakes the nature of It law. conclusively pension. show These considerations of that the compensation right under of this found out to damages right a tort- recover and the the statute feasor are of such that the character radical different Honorable Commissioner rules of law invoked applicable. fact that the administrator The are not operate company does from the railroad recovered receiving prevent of the deceased to compensation the mother * * dependent a fund as from this holding the last therefore, that me, It clear to seems may recovery be that to the effect double representative personal in a where a had case damages employee in addition estate of an sues compensation received or benefits to the workmen’s quoted pointed statement, in the receivable. As out on the administrator cause of action declared wholly action than that which different cause of is a any employee, and sum in favor of the would exist go employee, would be to the but recovered would not precise provided by The situa as statute. distributed dependents an award is made tion exists where a compensa the workmen’s under deceased occasions, on numerous has Court, tion statutes. This pointed dependent out an em that the claim of a ployee compensation under the is based workmen’s acts wholly grounds on different than those of the em ployee. pros It is, fact, action, different cause of persons. ecuted and for benefit different recovery question actually For reason no double Compensation arises such cases. State Gibson v. Commissioner, 127 E. 2d 555. majority strongly
The in the instant relies on case Torpedo the case of Merrill v. Co., Marietta W. 79 Va. expressly approved 92 S. E. That 112. case
holding merely in the Mercer case. It holds employee may person, person sue third other than employer, negligence, far can and, so I de question relation termine, has no of “double recovery” approval other than that which results from hardly in the Mercer case. It can contended that the state commissioner judicial powers or administrative other than necessary granting such as are to determine the refusing compensa of benefits under the workmen’s certainly pros acts, tion not to determine the negligence. ecute lawat based on language case, Brewer which contained the ex- pressly disapproved opinion in the the instant wholly type solely awas a cause of action different action, on based existing
allegedly in favor of the employee. Moreover, memorandums made in the deci- sion conference at which the Brewer case was decided clearly fully establish that the discussed, *15 considered and voted on in accordance the lan- with guage disapproved by majority, now the three new participating. members True, the statement made was in a case here on but that not an certification, attempt reappraise, disapprove prior to a overrule holding proceeding in a the wherein was not point supposedly propo- involved, but to out a settled by litigants sition in law, controlled common aid of appeared very likely on the trial of case, the as then to be had after remand. support majority apparently in the state- finds to the effect the Merrill case contained in
ment compensa- provision pertinent of the workmen’s the ‘‘ or accident the nature of life tion act somewhat applica- the but appears correct, The statement is insurance”. by me, has to Court, the it tion thereof made employee exactly an Yet, like it insurance. makes nothing payable, say to the amount benefits as to employee being by makes statute, the the fixed same say nothing payment premiums, whatever to noof employer, by premiums paid the as to the amount to become subscriber elects whether policy insurance an on an Morever, fund. wholly type an from one of action is a different statutory negligence or a on based either It should to workmen’s benefits. consistently held that this Court has not be overlooked that any light must result to such benefits statutory pro- compensable defined as policy. on the existence of insurance visions, not may holdings ma be true that the While it jority jurisdictions are in accord with of other proceeding, holding it instant definitely majority opinion appears holdings necessary by statutory provisions were made being applicable only respective jurisdictions, it in the except pointed three, Ohio, “All out that of the States adopted Virginia”, Hampshire have New West relating the matter. not the fact that statutes all statutes to effect to Does necessary except to three have found enact states change law rule, in the common cases, the Mercer and Merrill indi established power that this Court should not assume the cate clearly appear ? do so The situation is made action of the Court the case of Truscon Steel Co. Co., E. Trumbull 120 Ohio N. 394, 166 Furnace St. Cliffs strongly opinion majority 368, so relied on apparently prior the instant reason that contrary was overruled. In the case prior holding overruled, wherein the Ohio Public *16 Sharkey, E. Service v. 160 N. Co. 117 Ohio St. Recovery
687, it law was held: “3. such only only portion pro can damage the be for tanto, such compensated has for not been allowance Compensation under the Act”. It was Workmen’s pointed there out, however, that the facts involved occurred “before the 1923 Amend the effective date of pronounced ment, and, while the after decision was effective the form of the constitu date, provision applies tional to and the decision”. controls appears quotation Moreover, the Public Ohio Company Sharkey, supra, Service the contained in majority opinion in instant that com the “The inequitable mon-law doctrine that it to allow a doubt (sic) [double] for satisfaction the same abrogated, impliedly, expressly either the Compensation (Gen. Workmen’s Act sec. 1465- Code, seq.), purpose 37 et the insure is to to work * * * injured during [compen employment men their ‘precisely sation] injury’ ”, commensurate with the conclusively, establishes statement I think, when read the with relating to the amendment to the State Con wholly stitution, the decisions were controlled pertinent the statutes and the amend constitutional provision ment. No such constitutional ex statute ists this State. majority expressly the admits statement dis-
approved pointed “a correct statement of law”, out in the Mercer case to be the true common rule, law yet apply payments refuses it in where situations of benefits under workmen’s laws involved. I think no there sound dif- basis the ferent treatment. Our Article Constitution, VIII, Sec- provides tion that the common law force at the adoption time of the the Constitution “shall be and repealed continue law of the until State altered or Legislature”. Though holding pointed out forty in the Mercer case existed for has more than years, Legislature change has not seen fit to voluntarily common rule. law Here the proceeding wherein in a so, to do assumed question reason involved and was not a new considering on remand might had”. he “trial *17 holding
Though in the Mercer first considered language disapproved based, case, on which type wholly of action different to a relation I now, instant than that of the notwithstanding impliedly overruled, understand, of the statement of the correctness admission principle. I think circumstances, common law prin- figurative language say that the not mere ciple winds”, “thrown to the has been of stare decisis precedent the Mercer and that the established standing recognition, long cases, of Merrill not been accorded respect.
Being respectfully indicated, I dissent. of the views ex rel. Virginia
State of West et. al. Zickefoose, Moneth W. al. et. West, Garland 12039) (No. July 12, 1960. Decided 1960.
Submitted June