Mcvey v. Chesapeake & Potomac Tel. Co

Citation138 S.E. 97
Decision Date03 May 1927
Docket Number(C. C. No. 399.)
CourtWest Virginia Supreme Court

(Syllabus by the Court.)

Case Certified from Circuit Court, Cabell County.

Action by E. S. McVey against the Chesapeake & Potomac Telephone Company. A demurrer to the declaration was sustained, and the trial court certifies the case. Affirmed.

John Boman, of Huntington, for plaintiff.

Fitzpatrick, Brown & Davis and C. W. Strickling, all of Huntington, for defendant.

WOODS, J. 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., 92 W. Va. 347, 114 S. E. 679. The court sustained the demurrer. The plaintiff declined to amend his declaration, taking the position that, even though the defendant had elected to comply with the Workmen's Compensation Law and was in good standing thereunder at the time of the alleged injury to the plaintiff's wife, the supposed right of action at common law of the plaintiff for loss of consortium, etc., was not affected by the provisions of the Workmen's Compensation Law. To test the correctness of the ruling of the lower court upon this proposition, the declaration is here for review. Two questions are raised on the certificate: (1) Whether the plaintiff, who is suing for damages per quod consortium ami-sit growing out of the personal injuries sustained by his infant wife by reason of the negligence of the defendant while she was employed as a servant of the defendant, is entitled to his action in this behalf the same as he would have been prior to the year 1913, had his cause of action then accrued, notwithstanding the provisions of chapter 10 of the Acts of the Legislature of 1913, commonly known as the Workmen's Compensation Act, and amendments thereto? (2) Whether the declaration, and each count thereof, states facts sufficient to constitute a cause of action against the defendant?

A determination of the questions of law rests upon the construction of section 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 damage 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 generalwell-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 of the Workmen's Compensation Laws, for the reason that it is to be classed as remedial legislation. State v. District Court, 131 Minn. 352, 155 N. W. 103, Ann. Cas. 1917D, 866; Wilson v. Dorflinger, 218 N. Y. 84, 112 N. E. 567, Ann. Cas. 1917D, 38. The changed social, economic, and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration and become influential factors in the settlement of problems of construction and interpretation. Courts will look to the old law, the mischief sought to be abolished, and the remedies proposed. In this respect it has been said:

"The conditions giving rise to a law, the faults to be remedied, the aspirations evidently intended to be efficiently embodied in the enactment, and the effects and consequences as regards responding to the prevailing conceptions of the necessities of public welfare, play an important part in shaping the proper administration of the legislation. In the aggregate, they sometimes shed very efficient light in aid of clearing up obscurities as to the legislative intent. * * * The courts should fully appreciate that and be imbued with and guided by the manifest intent of the law to eradicate, utterly, the injustice to employers and employees, and the public as well, of the old system, and to substitute in its place an entirely new one based on the highest conception of man's humanity to man and obligation to industry upon which all depend; recognizing the aggregate of its attending accidents as an element of cost to be liquidated and balanced in money in the course of consumption—a system dealing with employees, employers, and the public as necessarily mutual participants in bearing the burdens of such accidents, displacing the one dealing only with the class of injuries happening through inadvertent failure, without real moral turpitude, to exercise average human care, and placing employee and employer, whose interests are economically the same, in the false position of adversaries, to the misfortune of both and the public, intensified by opportunity for those concerned as judicial assistants to profit by such misfortunes. Most lamentable it...

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    • United States
    • U.S. District Court — Southern District of West Virginia
    • 8 d4 Novembro d4 1990
    ...for under the law of West Virginia such claims are derivative of their husbands' claims. See McVey v. Chesapeake and Potomac Telephone Company, 103 W.Va. 519, 138 S.E. 97 (1927); Parsons v. Shoney's, Inc., 580 F.Supp. 129 (S.D.W.Va. 1983). While under Virginia law, it would appear that a sp......
  • Mandolidis v. Elkins Industries, Inc.
    • United States
    • West Virginia Supreme Court
    • 27 d2 Junho d2 1978
    ...equitable distribution shall not endure and be perfected to the best that human wisdom can attain." McVey v. Chesapeake & Potomac Telephone Co., 103 W.Va. 519, 522-3, 138 S.E. 97, 98 (1927) Quoting Milwaukee v. Miller, 154 Wis. 652, 144 N.W. 188 (1913) (Emphasis We now turn to an analysis o......
  • Fitzgerald v. Fitzgerald
    • United States
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    • 30 d4 Novembro d4 2006
    ...acts in contravention of the long-standing purpose of workers' compensation law. As we announced in McVey v. Chesapeake & Potomac Telephone Co., 103 W.Va. 519, 138 S.E. 97 (1927), the purpose of the original legislation was "to relieve the employer from any and all civil responsibilities at......
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    • United States
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