138 S.E. 97 | W. Va. | 1927
This is an action of trespass on the case, brought in the circuit court of Cabell county, by which it is sought to recover damages for the injury of plaintiff's wife, on account of the loss of consortium, etc. The plaintiff filed a declaration at common law, alleging that his wife had been injured while in the service of the defendant company as a telephone operator. The defendant demurred to the declaration because the declaration showed on its face that the defendant was an employer within the meaning of the Workmen's Compensation Law, and that a declaration, to be good on demurrer, should allege that the defendant either had not elected to comply with the provisions of that law or that having elected to comply, it was necessary that the declaration state some default on the part of the defendant which would deprive it of the protection of that law. Byrd, Adm'r. v.Sabine Collieries Corp.,
A determination of the questions of law rest upon the construction of § 22, chapter 15P, Code. This section provides: "Any employer subject to this act who shall elect to pay into the workmen's compensation fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premiums and shall have complied fully with all of the provisions of this act; provided, the injured employee has remained in his service with notice that his employer has elected to pay into the workmen's compensation fund the premiums provided by this act. * * *" Our research has not furnished us any case decided by this court, or by any other court in a state with a statute identical to ours, which throws any light upon this subject. Nor has counsel for either side been able to direct our attention to any. We must therefore resort to the wording of the statute and to general well recognized principles of statutory construction.
The obvious purpose of the Legislature in enacting into law the so called "Workmen's Compensation Act" must be borne in mind in a decision of the question involved here. In the construction of such acts, the courts are, of course, guided by the general rules of statutory interpretation. While, generally, statutes in derogation of the common law are given a strict construction, yet the courts have very generally held that a spirit of liberality should characterize the interpretation *522
of the Workmen's Compensation Laws, for the reason that it is to be classed as remedial legislation. State v. District Court,
But the plaintiff's counsel contends that, even if such a construction be placed upon section 22, as first enacted, as *524
would destroy the plaintiff's supposed common law right of action, the amendment of 1915 limited the first by specifically mentioning the rights of parents of a minor employee and failing to mention the husband of a wife employee, and sought to apply under that contention the old maxim of statutory construction "expressio unius est exclusio alterius". As we view it, before such maxim could be applied, we must be able to say that it was the legislative intention to curtail the first sentence of section 22 by the second sentence. We are of opinion this cannot be done in view of the entire act. Why this amendment? Under the common law, there was considerable question about whether a minor continued in the service of an employer after notice given by the parent that he would not consent to the employment of the minor, such employment was not unlawful, on the theory that at common law the parent had the right to the custody and control of his minor children and to the benefit of their earning powers until they maintained their majority. This right still exists in this state. So, if a minor employee were in the service of an employer who had come under the protection of the act, and the parent of that employee should give the employer notice that he would not consent to the employment, such employer would probably not be protected by any part of section 22, under the general principle that the Workmen's Compensation Law does not protect an employer where the employment of the injured employee is unlawful. It is reasonable to presume that after the enactment of the first law, this hiatus in the section was recognized, and the Legislature in enacting the amendment in 1915 meant to meet this situation by providing that even if the minor employee continued in the employment of a particular employer who had complied in all respects of the act, without the consent of the parent, such parent of the minor employee would lose whatever right of action he might have. This amendment rather tends to support, than otherwise, the view that it was the intention of the section to relieve the employer from liability, either at common law or by statute, for any injury or death to an employee however occurring. The cases of *525 Griffen v. Realty Co., 27 Ohio Dec. 585, and King v. ViscoloidCo.,
Affirmed.