The opinion
Lovins, Judge,
concurring:
I cannot accept the premise that claimant was guilty of wilful misconduct by reason of violation of rules and orders of his employer. I concur in the result for the reason that I believe claimant was guilty of wilful disobedience to a safety rule adopted by his employer and approved by the state compensation commissioner, such violation being a bar interposed by Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937. I prefer to rely on the plainly expressed provisions of the statute rather than the variant acts or conduct of an injured or deceased employee. The phrase “wilful misconduct” as used in the workmen’s compensation statute, in my opinion, connotes perverse, unruly and patently dangerous acts done by an obstinate employee, after opportunity for thought and deliberation..
I distinguish'the instant case from the case of
Red-Jacket Consolidated Coal & Coke Co.
v.
State Compensation Commissioner,
111 W. Va. 425 , 162 S. E. 665 . In that case the employee was guilty of habitual violation of safety rules as appears from a portion of the opinion therein, reading as follows: “Garcia was in the habit of using very short fuses in his ‘doby’ mining.” Garcia was the deceased employee who lost his life as a result of using short fuses. He had been fined about six months before his death by a “safety club” for a violation, was subse
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quently dismissed from employment but allowed to remain after promising to refrain from future violations, and threatened with dismissal in the event he failed to observe in the future the rule against the use of short fuses, notwithstanding which Garcia frequently violated the rule, which conduct eventually resulted in his death.
The facts in the instant case are essentially different in that the violations by Ragle were not habitual, and frequent, nor was Ragle fined by a “safety club” and discharged from employment. In other words, Ragle was only mildly reproved for his conduct. The facts in this case do not, in my opinion, show contumacy on claimant’s part sufficient to constitute wilful misconduct.
I do not believe that the rule in the case of
Coal & Coke Co.
v.
Commissioner, supra,
should be further extended, which is the effect of the opinion herein. I respectfully disagree with the reasoning, but concur in the result for the reasons herein stated.