Jones v. Appalachian Electric Power Co.

*493 Given, Judge,

dissenting:

Assuming that the Court in stating in Point 3 of the syllabus, as seems clearly apparent from the discussion in its opinion, that no remittitur • may he filed in any case where compensation has been received, or is receivable, for an “injury” or for “death”, from the workmen’s compensation fund, means that double recovery of damages may be had in every such case, in an action by an employee against a third person, or a joint tort feasor, I must dissent.

In Mercer, Adm’r. v. Ott, State Compensation Commissioner, 78 W. Va. 629 , 89 S. E. 952 , the precise question was posed, the Court in its opinion taking notice that “This is an important question”, proceeded to a full discussion and decision of the question. The Court first considered the right of a subrogee to have the amount of damages recoverable in an action reduced by the amount of compensation paid to an employee. Its holding was to the effect that there could be no double recovery, citing McGarvey v. Independent Oil & Grease Co., 156 Wis. 590 , wherein it was stated that, in such circumstances, a plaintiff “cannot have but one satisfaction”. The Court then stated: “There is nothing in our statute which would prohibit an employee who has received damages from a third person, from receiving from this fund the amount provided by law by way of compensation for damages arising out of the same act. We must therefore rely upon principles of common law for the solution of the questions involved. It is conceded that the representative of the deceased received $1250 as damages from the railroad company. It is claimed by the compensation commissioner that the employer was liable for damages for not having given the deceased a safe place in which to work, and that therefore the recovery and payment of damages by one tort-feasor released the other. But does it follow that because the brick company would be released at common law under these circumstances that no resort may be made under our statute for further compensation *494 out of this fund by one who is a dependent? We think not. The money recovered from the railroad company or from the brick company would be distributed to the parties in the proportions provided by law in relation to the distribution of personal estate left by a person dying intestate, while sums received from the compensation fund would be paid to one or more dependents of the deceased. The amount which may be received for wongful act causing death of another is fixed by law at such sum as a jury may deem fair and just, not exceeding $10,000.00. The amount of the average weekly earnings of the injured person at the time is made the basis upon which to compute the benefits. By the workmen’s compensation act it was intended to create a fund to which an injured employee or his dependents in case of death can apply for compensation, instead of being compelled to collect the same by law. It partakes largely of the nature of pension. These considerations show conclusively that the right to compensation out of this found under the statute and the right to recover damages of a tort-feasor are of such radical different character that the rules of law invoked by the Honorable Commissioner are not applicable. The fact that the administrator recovered from the railroad company does not operate to prevent the mother of the deceased from receiving compensation from this fund as a dependent * * It seems clear to me, therefore, that the last holding only was to the effect that double recovery may be had in a case where a personal representative of the estate of an employee sues for damages in addition to the workmen’s compensation benefits received or receivable. As pointed out in the quoted statement, the cause of action declared on by the administrator is a wholly different cause of action than that which would exist in favor of the employee, and any sum recovered would not go to the employee, but would be distributed as provided by statute. The precise situation exists where an award is made to dependents of a deceased employee under the workmen’s compensation statutes. This Court, on numerous occasions, has *495 pointed out that the claim of a dependent of an employee under the workmen’s compensation acts is based on wholly different grounds than those of the employee. It is, in fact, a different cause of action, prosecuted by and for the benefit of different persons. For that reason no double recovery question actually arises in such cases. Gibson v. State Compensation Commissioner, 127 W. Va. 97 , 31 S. E. 2d 555 .

The majority in the instant case relies strongly on the case of Merrill v. Marietta Torpedo Co., 79 W. Va. 669 , 92 S. E. 112 . That case expressly approved the holding in the Mercer case. It merely holds that the employee may sue a third person, a person other than the employer, for negligence, and, so far as I can determine, has no relation to the question of “double recovery” other than that which results from approval of the holding in the Mercer case. It can hardly be contended that the state compensation commissioner has any judicial or administrative powers other than such as are necessary to determine the granting or refusing of benefits under the workmen’s compensation acts, certainly not to determine the right to prosecute an action at law based on negligence.

The Brewer case, which contained the language expressly disapproved in the opinion in the instant case, was a wholly different type of action, based solely on a cause of action allegedly existing in favor of the employee. Moreover, memorandums made in the decision conference at which the Brewer case was decided clearly establish that the question was fully discussed, considered and voted on in accordance with the language now disapproved by the majority, three new members participating. True, the statement was made in a case here on certification, but that was not an attempt to reappraise, disapprove or overrule a prior holding in a proceeding wherein the question was not involved, but to point out a supposedly settled proposition controlled by common law, in aid of litigants on the trial of the case, as then appeared very likely to be had after remand.

*496 The majority apparently finds support in the statement contained in the Merrill case to the effect that the pertinent provision of the workmen’s compensation act is ‘ ‘ somewhat in the nature of life or accident insurance”. The statement is correct, but the application made thereof by the Court, it appears to me, makes it exactly like insurance. Yet, an employee has nothing to say as to the amount of benefits payable, the same being fixed by statute, the employee makes payment of no premiums, has nothing whatever to say as to the amount of premiums paid by the employer, or whether the employer elects to become a subscriber to the fund. Morever, an action on an insurance policy is a wholly different type of action from one by an employee based either on negligence or a statutory right to workmen’s compensation benefits. It should not be overlooked that this Court has consistently held that any light to any such benefits must result from a compensable injury as defined in the statutory provisions, not on the existence of an insurance policy.

While it may be true that the holdings of the majority of other jurisdictions are in accord with the holding of the Court in the instant proceeding, it definitely appears from the majority opinion that such holdings were made necessary by statutory provisions applicable only in the respective jurisdictions, it being pointed out that “All of the States except three, Ohio, New Hampshire and West Virginia”, have adopted statutes relating to the matter. Does not the fact that all states except three have found it necessary to enact statutes to effect the change in the common law rule, as established by the Mercer and Merrill cases, indicate that this Court should not assume the power to do so ? The situation is clearly made to appear by the action of the Court in the case of Truscon Steel Co. v. Trumbull Cliffs Furnace Co., 120 Ohio St. 394 , 166 N. E. 368 , so strongly relied on by the majority opinion in the instant case, apparently for the reason that a prior holding to the contrary was overruled. In the case wherein the prior holding was overruled, Ohio Public *497 Service Co. v. Sharkey, 117 Ohio St. 586 , 160 N. E. 687 , it was held: “3. Recovery in such action at law can only be pro tanto, and only for such portion of the damage as has not been compensated for by allowance under the Workmen’s Compensation Act”. It was there pointed out, however, that the facts involved occurred “before the effective date of the 1923 Amendment, and, while the decision was pronounced after such effective date, the 1912 form of the constitutional provision applies to and controls the decision”. Moreover, it appears in the quotation from Ohio Public Service Company v. Sharkey, supra, contained in the majority opinion in the instant case, that “The common-law doctrine that it is inequitable to allow a doubt (sic) [double] satisfaction for the same injury was not abrogated, either expressly or impliedly, by the Workmen’s Compensation Act (Gen. Code, sec. 1465-37 et seq.), the purpose of which is to insure to workmen injured during their employment * * * [compensation] ‘precisely commensurate with the injury’ ”, establishes conclusively, I think, when read with the statement relating to the amendment to the State Constitution, that the decisions were wholly controlled by the pertinent statutes and the constitutional amendment. No such constitutional provision or statute exists in this State.

The majority admits the statement expressly disapproved to be “a correct statement of law”, pointed out in the Mercer case to be the true common law rule, yet refuses to apply it in situations where payments of benefits under workmen’s compensation laws are involved. I think there no sound basis for the different treatment. Our Constitution, Article VIII, Section 21, provides that the common law in force at the time of the adoption of the Constitution “shall be and continue the law of the State until altered or repealed by the Legislature”. Though the holding pointed out in the Mercer case has existed for more than forty years, the Legislature has not seen fit to change the common law rule. Here the Court has voluntarily *498 assumed the right to do so, in a proceeding wherein the question was not involved and the only reason for considering the question is that on remand a new “trial might he had”.

Though the holding first considered in the Mercer case, on which the disapproved language was based, was in relation to a wholly different type of action than that of the instant case, that holding is now, as I understand, impliedly overruled, notwithstanding the admission of the correctness of the statement of the common law principle. In such circumstances, I think it is not mere figurative language to say that the principle of stare decisis has been “thrown to the winds”, and that the precedent established by the Mercer and Merrill cases, of long standing and recognition, has not been accorded respect.

Being of the views indicated, I respectfully dissent.