Document 3eVNpyBO3Ga9xOkBGmBng9djO

r t.' ' 1i..f,'olV1'**.. eA*MM****44nn*4 OMM*AMtuni^jlbLkaJlhaM LaaoMii UU--Aao.* VuimniMM*t DDliVvIiBateMH < m Co/uha.hj#J Tmust MtnTi All. KiaKTOIRKtMrXD vS<tf GP***- syf- >.:f.few. ..; !;*'.> 'r^yfyS'i V ."*& ':-{ HEQUISI.frON hTTiiSSS 65447. WEST VlfiC.INIA 57^nSME OOUHT OF AREALS. Decided February 14, 1953. DORA JONES, AOil'RIX., ETC, V. niNOlURT & DENNI3 CO., INC., ET aX, . Fayette County, Affirmed. t>' 1 An employee h&3 right of action at common la's on account '/' of diaeese contracted by him In the course of his employment and ttrl-'::": butable to negligence 0f his employer. ' '?,, , -here an employee dies of disease contracted'in the .; course of hla employment because of negligence of ills employer, the- latter mil. tie liable in an action of damages prosecu ted`by" tha person-,'';- ai representative of the deceased employee." Code 1931, S5-7-5, .)' .j; o. disease contracted in the course or son resulting iron 'i> employment la not corapenaabie under the 'Vest irirgina Compensation Act, i Code 1931. S3-a-I,. unless Clreotly attributable to a definite, Isolated, . for Ini.ecus i?f.rnrrs5B, ' 4. Under the '.`feat. Virgir.a Compensation Act, Code 1931S . 2-t-6, employers are exempt from U.Hhl 1 ' t.y . for dflr.Ageft ar. ."..onmcTv lw or by statul.e, for compensable Injury or death of an employee, however occurring^ but ere not'exempt from liability far non-compensable dis ease (caused by negligence of the employer) or death resulting* from--- such disease. NAX77ELL. "i* #&i\l | l ; Il'.U cli ac Involves the sufficiency of c declaration'for demagee for alleged wrongful death. Tha circuit court ever-ruled a demurrer to the declaration and each oount and certified Its ruling here* It. U alleged that plaintiff's decadent tfad a laborer in the employ of defendant, Rinehart 4 Dennis Company, InC.. coctractor in charge uf the construction for The Hot/ Kanawha Power Company of "an under ground tunnel about thirty-two feet, in dianet*.- and about four miles; in lenctbj beginning at a point on tha North side ef New River near / the village of Hawks .Vest and extending under the mountain to a point drii *.h came siic wt vg.LC near Oaul/ JuncUon in Cwuiei*^, West virgins.'1 Xt is further alleged that defendant, ?erkinst wa3 the vice-president and general managef- of the Rinehart 4 Dennis Company, - and. "w4b. in active' charge , management', supervision,"dir<,ct*i-0Tr-Tmd---crt3'n'Sxv'3!-- of the construction of taid tunnel for the sold defendant company & r. ." The declaration contains six counts alleging, respect s.vn3 y (1) failure of defendants to provide decedent with a safe place in rhLch to orLra (a) failure to employ cxpni 1 oneud foremen, (3) failure to" adopt- and promulgate proper rules, (>i) failure to \-iard and Instruct decedent la. to the dangers attendant upon his employment, (5) failure to furnish ; proper tools and equipment, (5) failure to provide for proper circula- t Ion of air, Saeh count allsseo not only nC6tiftnce on "he pert of. the :.f defendants, but also that Lhcy acted willfully, wantonly, and with dc-. ;. liberate Intention to injure tna plaintiffs decedent. In our opinion.'.'j;:] this latter allegation has r.o bearing on the .questions before ua. ;_Thayirj m r T t A A & tha ot^lula aaiicjtL fe* i%*$Ur*dl Id appLiaA'dli t d Lft of-jpti *`vil5a situations. The pertinent part' of the statute, self-explanatory, I'hefWia "If. injury or death result to-any employee from.the deUbara/ta.' intSngjalsl l tlon of hla employer to produce '.such, inJury; dry <Jodtf,j,4hie. eapio&e OnuM#c Ik<5,, (.Mtl LJAI* Mi'viaa Bin I WUMPAHY) ML RtaKTB HC*4YtD the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and Shell also have cause or ac tion acainsL Ui- employor c if this trttjtor had *wt bsots enacted for sny excess of declares over the amount received or receivable under this cuapter," Code 1931, 25-4-2. Th* burden of tho complaint, permaotlng each count, la trial through negligence of defendants ir. causing and permitting large quan tities of silica dust to pervade and saturate the atmosphere in said, tunnel the plaintiff's decedent contracted the disease iaiownas silicosis of which he died.. It io allogod that muoh of tho atone romoved from the tunnel was more then ninety-nine per centum ailioaj that corapresood air drills ware used for the drilling of holes in said stone for the purpose of inserting explosives to dislodge the same; that large quantities of dust arose from this nnrt.tnn; that water was not used in the drill holes to keep down the dust, nor was any other means employed by the defendants to protect plaintiff's decedent from the deleterious affects of the dust- It It: not alleged in the declaration that the coroorate de fendant is not a subscriber to the state compensation fundi or; being a aubaur i t'-;r * la in default or the payment of premiums to which it was subject, under the act regulations of tus eoBimiebtons r, or that i for some other reason, it id deprived of the protection of the act. This failure of allegation is tho basis of the demurrer. Dcmuiianta rely upon holdings of this Court that ir. actions for damages for personal ' r jury Ac&inet defendants eligible to the protection of tnc workmen's COItpehSation act, there (hurt, be averment of tha failure of -sueh amploy- er to become a subscriber, or, having subscribed to the fund, is in da- far.lt, ?JcVey v. c. * ?. Tel. Co . -. 102 Va. bl3; Guanas v, G-louora Coo I f?r.. 91 ;.V. Va., 6.>f,, tin". ' ff saek3 to Justify tho absence Of such allegation from ths daciofsi ion by taking the position that ihia case is without the terma uf the .*orkman13 COir.psnfiat Lon act and therefore 14 not con trolled by tha rsqUirc.v.antg thereof. The plaintiff's position is based on four propositions: (1) an employee has right of action at common law for damages for disease celifted by negligence of his emoioyftr; (3) under our countarpart of Lord Campbell 'r .'ot, if aueh araployee dia of a disease so contracted, his personal representative may maintain ac tion for tha wrongful. d*+,h; (5) diabase. wnsltmr coctipa t f. onel (no specific negligence of employer involved) or whether non-oceupatione.1 out attribute'-1 r.o ns-llgsna* of *rr.ployor, l not componsabl*, under tho 'Sest VLrgina Compensation Act; (4) the compensft lion act exonerates employers from cotjmon law liability only in compensable italiara. The d?ndanta uolther affirm per dany that occupational disease is compensable under cut statute. They assert that that ques tion is not. involved in the problem before the Court. Their primal ' and basic proposition is that the compensation act relieves subsorib- ing idiplays^s,, nut in dwf*ultr f i otu li*.Lilit/ rwnpond iai for injury or death of an employee, however occurring, regardless of. whether mere be involved a compensable or a non-compenSable injury, Thla position is sought to be arounded. on the following lection of. the workmen's compinaation act: (i "Any employer subject to this chapter who shall elect to pay into the workmen's comoenaatlan fund the prsmiums provided by this chap ter shall not be liable to respond In damages at nnmmnn lew or rty sta tute for the injury or death of any employee howevsr occurring, arter sueb election and Curing any period in nijlca such employer snail not be In default in the payment of such premiums and shall have complied fully wita all otner provisions of this chapter; Provided That th* injured / employee Haft reiiiaiuvO li> til eef/ice with uullou tiu*t tile employer l,aB i i elected to pey into tne workmen's compensation fund ths premiums pro- ,] Tided by tnie chapter. The cont) nuati.on in tha servios of such employer . j with such mii, ll!. ho deemed s waivsr by tba employe, and by the - ! parents of any minor employee of the right of action as aforesaid, which I ' the employee or hia or her parents would o'therwiee have.'1 Code 1931.v " .1 1 23-2-6. ' AA 's\. Ch*ni"a MdUtL lnfi LCAJ* 9UVI6I OiVIIION Of THf CQN*ORnOM f*UIT COMPAMV, AU, HHMTI BlUltn u The section of oar compensation statute which defines *- urn fja nil a,, A 4 t.-taV&Or -- Affwris: "The toar-issioner skull disburse tiis i.orltc.en'S conipenaatltnfund to tho employees of ouch employers s> are not delinquent in the payment of pr-irbiUVO for fhO ri.wiii.i. ill r.liluh I<ii0 [njuiy occurs , end r.'tio nova otherwise eoir.plifid fully with the provisions or this chapter, and' whir.!-, nmpl.cyn.jf shall have reoelved pcrconcl injuries in this f.tate in the course of uni resulting from their er.ploysient or to the dependents, if any. of such employees ir. case death has ensued, uuourtUng to toe provisions hereinafter made; and also for the oxper.sec of the c.-iraintstra tion cf this chapter, as provided in section two, article one of this chapter." Code 1531-, 23-4-1. Code 1932, esc. 2526. tilth reference to these sections of the statute defendants urge that the prCciue quest ior. before the heart is whether plaint iff .'a decedent's injury is actionable in the light of the provisions of sec tion 2516, and not whether it is coppcnesble under section 2526. True- in the lest-aneiysLs, the question of .whether plain-. tlfr'c declaration iriicntt u Cous: of action ust be dm.*reined speci fically ir. the ii-ht of section 5516, but in. answering that question the Court,, acting under familiar rules of statutory construction, ..must loch to the v,hole act, and, think, mutt loo': euecially to section is5253 a bccauci- cf the peculiar er.d necessary correlation tetween that section and auction 2516, Corrvistlun exists because both, sections must be e;:ac r.sd In deterainir.c: the ri.ehto of an injured employs*. The vital ler.juuLic cf section 2515 enaclin.q tint a:; employer subject to the cchpansutior. act. not in default, "ensi1. not bo liable to respond in Coinage* at comae;! is ur by statute for l,a jury cr ao&tr. cr any employee however occurring1 stcndliiy; alotij and 1 i tarally interpreted would seem to custlln the contention cf the d.sferd.-.r.ts. that an Action for damages by an er,ploys; ag&inut an scployor for injury srlsir.-,; from the employ- *i*x%*. v\+ y l 1>j reci in inei wen .noutjti injur/ cr JLlaelaliitv is net compensable, But the meaning of that clause must, r.ct be determined free, its cold pnriseoioay alone. Consideration must be given to the baefc- hround and purpose of nnsipanawtion acts, to the arils sooyht to be oorrseto-i and vlie objects to be attained; to the rules of the common use with raise lor. to right of action for industrial injur is? eiid diseases, both uccupiti-Cnsi and otherwise; to the ieglslativi history of our own act; ani to all portions cf the act which may be of assistance in det- ersii-il,-,j the iigialative intent ,,-ttr. rospeot to the sold phraawetogy of a action 2516 , That, at common law, ssuloyess have right cf action against amnloyaro far accidental injuries rccLeved hv- eraplayoea In the eocrsa of their cmploysont through negligence of the employer, cannot he gain said. The rfiperto abound in such casac.. Bui tho question with which IQ are mors vitally concerned is whether such right exists for damaged artclng frn- c.dti-.tl.l thv wsrat cf .wjjioywsr.t tHraiia* the neglLi'anss of the employs.". Te find it stated that at common, lav. an employe* has no right cf action i or injury arising from occupational disease,, .Vdair.il v. Seme T.'httn Lead Color forks, IBS filch. 15V, cited in rnduotrlai <?on:.-n i c .1 i c n ^ Sr;1.:, . Oil Chic- State Pspta. ,lOC , anher- -stend that holding to mean that such right of action does not exist in tha employee merely because hn b-ur. contracted diees.se as sr. incident eT his employment, in' the absence of a showing of negligence on tha part cf the eir.pl jyr, aucauco auoh diaoa^s may bribe in spits of ids 'oars of the employer to prevent Lts being contracted by the employes- In such circuir.e tancs sIt bncomee a rist of *.ne employment which an employee,, cui juris, must bo presumed to have taken upon himself. But that an employ ee Pea rtgni of'cation at onmman law for uteease arising from his em ployment through the negH S^hca cf the employer seems' clear. Sisi th v. International High Sneed Steel Co.. (H.J.li 120 Atl. 132; Szalkowski 2__ OsbCrnC Cr.. ) Ida k 11 . c_i; Trout v-. vickivire ate.. Coro-. 195 \l.i. Supp. 328; Jo 1 iirii Toa! Cj. Mtelne. 24? S.1*'. (Ky.t S72; CsoneUy t lUr.neaooU'S '.ifu Co,. 201 h'(Kinn.) J-05; 't'aone:- -t. Jayne r.hsmin_ er.l To,, 23 At 1. ffa. ) 772; In rs Tagzslst. llo li..E. Ulasc.) 972. A tsree and aucoinct stst6.ment of the rul; ftppearn In In re Hurle. 104 !':> (Uaaa.) "At coninon law tiia innurrtng of et CiG3ft2o op l\nrm -p health is ouch a persona! tvron;; a..` to warrant a rscovory if the other , _ .j ,'k't'jt tf.-` 1 n n no n? Cw>u*M CUC**lMa Horn*. Inc- Logic Lxi* ftc*vtcs Civilian of Tpik CAnpOAATioh TUv C$m***** ALL *ta4V RctmvtB elements of liability for tort ars prssiiv.," If plaintiff's decedent had rikht of action at coi.uiion law. (not taken away from him by the workmen's compensation act) against the defer.dar.1. then, under our counterpart of Lord Campbell's Act his' ad.aiAlaLratr lx hai c right to proaocute this suit. This io in accord ith the express provision of the statute, The statute reads: '`When ever the death of s person shall be caused by wrongful act, neglect, or default, and the act., n2l act. or dufault. i.3 such as rcld (if death had not ensued) have entitled the party Injured'to maintain an action to recover damages In respect 1 nzr-io!, then, and in- ava-3' such case, tha person ".'do, or the corporation which, would have seen liable if death nad not ensued, shall ba liable to an action for daKages, * dods 1921,, 55-7-5, la disease contracted oy an employee in the course of his employment compensable under our statute? ?.'e mink 3os if the disease ba attributable to an exposure or Injury at a definite tine, Conley v.. Compensation Ccglo3loner, 10? ',7-\ra, S'.g. In that oaue it appeared that i-hs plaintiff 's decedent nas soldering spouting with a gasoline soldering torch. And that on ihs first day he used tna torch ii;- ex perienced npr'TiSdcr.er.a .ml ce.idacnj'ar.d on the sscond day na was suffer- Ifia to =vsruiy taut it was ruessaa.-y for hid to cuasS werx, The evi dence iisslnr.ad teat tha employee was poisoned by carbon sonoxids gas, in our decision said: "is the relation of the poisoning to thi ctennslH cu-.tijatlrs or coincident? If caur^-.ive, or if tr.s stenosis was .iitori&lly a^sriiva-ei thereby, Sereriase (plaintiff !s decadent) was en titled to compensation," That ossa must not be taken ae sutharlty for me prosoatLtin that 'I l seasc, generally apeaking, is compauaablB under the i or tun an.'a compensation statute, fruit holding :ie.3 cn tha basis of specific injury at a fined time, where tits elements of mb efir.ltar.es3 ;.ul unc-sr 1 uiiity ere iii.utipid. ,% aoaev.r.at uirvired oiMiatlon *r pra8 anted In .'.rchibcld y, Comoenaaticr. fcmifflsaloner. 77 7,'-Vi, 4-43; whsra ft workman met death because of mis takingly drinking poison for water .Mila at work. His dependents war* a war tied conpsnwahinn. The Ohio case of Industrial Pommies ion v. Roth. 82 Ohio s;, S4C maks3 thia pro position clear, "ne court tners held, that although "occupational dis ease" is not compensable under the statute, tha accidental and unfore seen inhalliv. by an employes, in tha course of hie employment, ef a specific poison or gas, resulting in injury or death, is not an "occu pational die-ause" and is compensable. inch is no t tiis sort of situa tion involved In '.'.is coca at bar. herein tns disease is attributable to exposure extending through a lorni course of employment. 3o. our special Inquiry is till*: la diseane v;hich is contracted by an employee tiiroivn an uvlaf 1 :ni.e period of e.mpluyoir;; I. wni'ipcrioahl? under tha -.orlc- men's compensation r-mtiite? In our opinion -i isaasts on arising are not comnehaabift under our statute. ^li-s unoatisfacLory nature o: t:v results attending uoon rS- v Lance on cooimnn 1:-..: sc Mens for redress o rcr.ee suffered by employ sea i.hrci.unh '-he us-: LI-noa or' enoleyeri wus a lurce element of the evil to be corrected i-y i.h.- compucostion eeac ;i:t 3 in this stats end slssMers. "'bat 4Id system t unsatis clary to bain enjloysra and er.-.picyesg.. The .-.real muss of cash anti baaed or, trauftotic injury of 'one sort cr another. Actions baaed on disease wars relatively ao few m r.u.v.uei' a= not t.i give i>ir, pitas is to the necessity of change in the manner or provid ing compensation <.<: injured employees anti thsir dependents, so that there 15 no curpriee on e/.aminatlun uf the sr.actin,-, siaucs of our work man's cor.csa3atier, act of 12X3 to find therein stated bs a purpose of tne act "to provide a method of compemsat ic - for employees that may e injiired, or tlia dipendanto of those killed in the oaurs. of their em ployment s # it,--end that, tbers is no refarsnea in the anacting clause to die ease. AaU 191b, chapter 10. ilony of tha sections of the ori ginal e.w.per.setLon wot vrn aTrandad and re-ehactod by the legislature of 1315, Acta 1515, chapter 9. The enacting clause there, also, makes special reference to employees who may ba injured but makes.no reference to employees who may contract disease in the course Of thalr employment, ".'hen one" is apoken of as having beer, pnyaicaiiy injured, the.thought conveyed is that he has been hurt or wounded, that through external-force s: he has suffered traumatism. '.'f-ii 1. A A n MH n COHXIKE CLEMUNO HOUt |MC~ kOOtl LEaH 9nVIGK OlVItlftli ** THE CflAAOHATIOM T*Vf COMPANY. AU. Rim $o that, in cur vU'.v, wh.cn trie Isglclatura nsdA provision for workmen1* Injured In tho accrue of and resulting from their employment. injury othor '`.nan from ciaeass was the maLLs;- to wttlch primary consiflsraUon was being given. In ths savoral secll'mc of t in worlnssn's eompanaation sul she words "injury-' or "injuries" aopear frequently, ^iie cociaiisslonsr ramt annually sake a sworn report, to the governor containing "a genarsl state ment of the causes of the accLclents lending to the lnjurien fnr- which the awards were made/1 Code 1931, 33-1-17; employers not subscribing to the act or in default shall be liable to employees for damages "suffered oy reason of atcidentai ueraonal injuries sustained in the course of employment,- and naii not avail themselves or the defense of" fellowservant rules, assumption of risk, or contributory negligence. Coda 23-3-8; compensation shall not bo- paid "on account of tny personal In jury to or death uf any employee caused by a seir-inrilctea injury," Code 23-4-2; rousonaolc funeral expenses shall be paid "in oaBC the par- eonal injury causes death within tha.period of four yoars from the data Of lit* original injury * ** -u,w Code 33-4-4... I'heee phrases nd nucnrous other similar onus in tne act indicate that the legislature was in no wise considering diseases arising from occupation extending over an in definite period of time. An interne ting d!souswlort (admj.ttad.1y obiter) by judgs i.i70ly of the cp..1;fit ion us to whether occupational disease la compensable under our compensation act appear a in the c3 of Pavla ?, 0 Qi'ii PSnuat ion -`Jo fii~ t o u ton sr , L10 'y ,7a. 25. He mooted the question but received" no conclusion,- Forty-four ciat-vs of i.ho union have enacted workmen's conpanjiition lane. ;<t yono3' digest or orumen ' s ('cmpenns t ion Laws (llt.-T id. I9s?)r page . "'Hass smotaonU and lb; oon-.i -.ruvtiop. t'oirssf by the courts of the respective states in. regard to occupational .dieease" 3eem to fail into aix geuhr.il ciisaee; (1) occupational ilcoase expressly excluded entirelyj or, except as directly e t.t. ri'cuUVol.' to accident, 33 elates; () occupational disease arising from employment; compensable, 3 states: (3) specified and enumerated occupational diseases compensable, 3 states.; (4) disease r.ot mentioned by the act but held t.y tha courts not to be compensable t 1 state (t'ich.i; (3) disease net mentioned by the aot but n.sla by tne courts to bo sompensaole, 1 stats CJafs,); (9) disease not mentioned in the sc* and the question yet" undecided by the court of last rcaort of the elate as to whether disease la compensable cr not, 3 atatc (iyVa.), The i.iaeiachqait is court holds that tile act of that state dees not liui'.t ccmpenstiion to injuries by accident but that it "goes boyond ttvt64 ll'nita and includ-a euah diacanea as fairly may be termed person al Injuries," In re Kaggslet. (Haas.) 116 N.S. 972, But, afl appears from the decision in that case'and Pliienal's Case, (Maas.) 127 Jf,20 434, tha court does nor. construe the fie-. *n Aniiilca.ble to all rtlsemaas which may be attributable to employment. In further discussion of the ac.1 e-ie Jarner v. Imcsrla.1 Furn 1 tura "o. . (Mich.) 166 943. as iirsaiy pclnted out, our - ork.mca' s compensatlcr. law, en acted in 1911, wa* it; large rteesure ro-sr-.aa tad in 1915. In 1919 (Acts 1919, chapter 121 j tlverewaS another re-encch.r.cnt of many of ths BOCtions or trie compensation taw, if it had been the ieglslaiiva intention to include uiseast; occupational cr othernine,, within the terms of the sta tute it would have been a simple matter no to declare and not to leave the matter subject to infirer.es, A cimil m.' induction and the fact of the narrowness of title of the Michigan set ire emphasised by. the court of t.-.st state.. Adame ir . Acme '"hits Lead etc, '.'fitrtf*. (Iiich,,) 143 JT..\Vc 485, AS ubovfi nnt.orl the titles Of tha ;VaaVirgin* a.t cf 1013 and the amer.d- Story act Of 1'i 15'make no muntlCn of compensation fur disease. Taking into account tftsSi several matters, s are of opinion that dieesset whetiiere occupational or others sa, is act compensable under the "'eat Vir gins statute^ except In those instances where the dlseacS is attributable tw a apecLfic uhd dvrir-itw rvrvl. wiilc); mey rnaaonably bf cieBSHd as = ucrccnal injury,, .`his coivtiuoirr. wwa pruuhgod by a atataoeat of Judge rorrscibui ai', ,.j2siur.; for one sours, in L,oui9 v aai tn-iiouoririeic Uooai.rtic ticn Co -,, SO 'h'.Va, 159, 93 S,2. 245: "it (the companaatlon actj" nnn^n?^' 1*4 *s ir.pliyer aad employee H`r ing H, but j - ' < r - - - i r 1" ^ ' - < -............. .. : ::.'53 j-iri: Does is si-s-p, code ` ay, ad by the *orkjan f g e-njisyaa arifling fran the nagli : jencanaVole under our ..'i', >.*v aectlon .n '.a r.o ' - - \ '.i `.r. <ury or ieath - : : i : o a tat ut.ua .in wh.lsh the .. '..-ie very i iS 2 , it ii i-i.-.t -o.-kasn`a scicpenar. - :v is further ir^ '-:i ;r. i.-.t '-'eat = j -.i-.ii sr.c. ir express : 'a dTP-y, t'rnm ei'-jli-l this ,a;.i ii to S'. 0? tb.2 ' `.I-:? naanlr-s t v.o* oui-d In- - at common i/a<v .. : r j v r i`jma ;; j Injury `."r . ".wury or ala- .Fr :y -5 - . \r.sn bsi.r.g no aufth lia- . , 7?r.C2, 3'/ thfl \ si ':.*= .: ih-e attributable to t zy industry as a .c;.--.rs / (Cc;upatlonal r,o cos; of vHKter- . -r J, ' In rs- 1..- :;*r*:on la* actions - :v' .-tj ns - m' ;r.e 3ta- .-. :r*:.using em: -(;3bi39 avi t`f ar &A on a.acpuni yxzr. ii&bili- .. . > .; z:z^\iz* disease. k * : r ? cm esplayeea ir." i subject to ; r " ; e ; * 2 z g&i~ .... :'r:ai . ar act to * ;ri'.mi;c injury of .: * f r a . ,; oy n 3 ana` r .-*CJ ./ of -f.Tiploy- ; j1. l:`.c , r-:s :ognizably3 _ i r., r. z.r. s i y i that :; c j r.s ;n ic; 'ahall .t " ^ .* $, ; ^ ; 2 f or the 000 778v"; Cowucacs ALViaiMO IhC-Lao*f L*.r 9cnvt bivi<m TmJith a**r*n41TiH 0ur.Mv. AL. khnt ki afe34-i?. hi jury or .'i sn '.ii nr /.ny Employee itowevar aeourri ng, " Is suecaytlhle Of t'.'io nflnfit.rnctlnin -- tha sno -tuid measure tha .lords an they stand dons ` the other ouiu upirnlse then in the light o' the other provisions of the act, and of the vari mm ce,iU/U.l9s o' Uia situation ao herein ujidartakon to be discussed, "lz do not share the view that this J,g essentially a legislative natter'and that the above quoted words of the statute must be literally construed and the affect xiven to them which the phrase imports when standing alone. True, the courts must administer the law as it Is written;, and must' not undertake to raaka law., 3ut where a court iu co:if ranted with (two couoLruclioxis--the first destructive of personal rights in that It takes away the means of effec tuating such rights and of obtaining redress for their breach, and tha other not destructive of either rlgiitB or remedies but harmonizing with hestc conceptions of personal juatlce--i.be latter la preferred. This Is interpreting law, not asking it. The courts will not recognize that there la nn open gap in the law /.here by reasonable interpretation such utidesired condition nan he #vnided- Therefor#, we ars of opinion that It was the le^iEiatlv# tr-aset, aa expressed in our wmptuaation low ((lode 1921, 23-2-6; Code 1932, sec- 2616) tc exempt employers from liability for damages it common law or by statute for compenBible in jury or aet:; cf employees, however occurring, but not to exempt from liability rar nan-compensable disease (oused by negligence of the employer) or death resulting from such diaeasa.. This view is bulwarked u> phi aaouiomy of trie sail section itself. It reiiev&a an employer from liability for ''Injury ar death" of an employee, provided, "tha injured tnpUi,," tj, r t.-rta Ir.eJ in th employer'* service v.Lth nool.Ce that -.re employer c a subiuriber to the workmen'5 compensation fund. Note the language `'Injur" nr death" ami "injured employee". As already discussed, the legislature In making provision in the act for injured WCr:<m$n VPAS 5'vir.j.- p.-ta^ry c 5.-ie 1 i * r* t, i ;r. to injur/ ottiar liiAn dlLae&se. The. phrases "injury or death" and "injured employee" as used in the said section must therefore be taken to mean an employee who had been hurt. Trauma.' It Is frcai liability to him nr his personal represen tative that the statute affords relief., It is urged fot defendunis that our case of MaVev v, C. fc P, Tel jto. . lUo V?,Va. 515, {jimnits us to tha proposition as advanced hy this alfel.utc* toianptu -JmSloj'ii- ft"6n liability for any sort of injury or dveth thl nay overtake an employee, regardless cf the oeuec. In the opinion la the. , case judge ".'cuds, speaking for the court, said: "It .'ic-'.iid scan plain (.bet the legislature Intended to relieve the anlilay-#:' fro:* any wad, all civil rGepon&ibilitiee at oomcon law, Crowing out of or in ar.y way cannaated with the injury or death of an employee in the service of cn employer who had fully compiled with the requirements of the. act. The '."orda uaed clearly Import this." That stntment iimol be conaidared in th# l'i^ht sf the fact. af that 4u*- The Case Involved an action of damages by a htiSOand for injuries received by his wife while t.n the employment of t telephone company. The injury was compensable undsr the statute and it appeared from the declaration that tha rial wae an v;plov3r within i-ha aiGanlxig of the eorlcmcn'o companseblow law. The declnralion did not allege that the defendant had not elected to comply with the provisions of the compensation law, or, bovine orifiuully complied viaa in heiault. ?/e nsld m&t tne declare- lion did no* c'iiom- c. ce#v u^sinEi the defendant, because it aa proted- '.E-d from such act ions by the terme of the oompep.ahtion act. At the tests of (It* a, nr. 1.44 sompsEOtblo injury. Statements lr. the splnisn were made on the*, premise. The court >6} in no wise considering uoni-ompenEflhl a nie&ns# attributable to nogliaonoo of an employer, The statement of the court stands unimprachabi# as tc matters to which it ''an intended to be applicable, but It cannot properly be deemed appli cable to matters not" then under consideration by the court. iluch reliance Is placed by the defendants upon the case of 7.a iachua; v. '.illlard ftoravg Battery Co... 106 Ghio t. 000779 t0MMHCI CLfAnl*d MOVit, !HC- lOOIR C*At SERVICE OlVtUOM fll TUR C4*ARATM _ ''. * ': *' ^ Cv. `HURT C4MPAMT. All SMMV RRaRuvCB ' S8J44?. Repts. S.'fl, In support of the propooition that a literal Interpretation Should he given r.o t.h* exempt lv* language of ttio etatuta undor dis cussion, In so far as the Ohio case may be tafcen aa authority for the . position af the defendants, w are not persuaded thereby that we should employ, a literal and absolute construction of the cords of the statute r Itbout regard to the oovorcil other elomonto which wo have discussed in this decision. In the light of all of which we are of opinion to affirm the notion of the trial court in overruling the defendants' demurrer ty the plaintiff'3 declaration and each count thereof. Affirmed _a 000750