To my mind the file in this case gives us two clear-cut issues of fact; first, was the decedent of claimant, by virtue of his employment, subjected to a greater degree of heat than those in the same neighborhood not so employed; and, second, if decedent was so exposed did his death result from heat prostration due to the exposure, or was it brought about by a heart attack? In order to make the decedent's death compensable both of these questions must be decided in favor of the claimant. The Court has decided that the testimony introduced does not justify a finding of exceptional or unusual exposure due to the decedent's employment, and this being so, the question of whether his death was due to heat exhaustion or to a heart attack becomes inconsequential and need not be discussed.
While I agree with the conclusion of the majority that the record does not show that decedent, by virtue of his employment, was exposed to unusual heat, I most positively disagree with the discussion of this question contained in the majority opinion, which places the comparison of exposure as between the decedent and his coemployees. I quote the majority opinion: "We think it may fairly be assumed that many other persons worked in this ordnance plant on that day under substantially *Page 91 similar conditions. In our opinion that is the general public to which the decisions in the Collett and the Rasmus cases relate." This statement, to my mind, is plainly unsound.
It cannot be denied that if the exposure of the "many other persons" who worked on this plant is plainly shown to be, by reason of the employment, more intense than that of the general public in the same neighborhood, then, in all likelihood, they were all subjected to a danger resulting from the employment. There is no question but that such injuries arose in the course of the employment.
I agree with the statement in the second syllabus of theCollett case that an injury attributable to heat prostration traceable to a specific event occurring in the course of claimant's employment is compensable. I do not agree, however, with the discussion in the majority opinion, to the effect that this statement makes a specific event affecting the individual who is injured and distinguishing him from other employees, a required element of a compensable claim. In my opinion, if it is shown that the employment results to the employees in general in a heat exposure plainly shown to be more violent than that of the general public in the same vicinity, and any one or all of the employees is injured thereby in the course of the employment, the injury is compensable. Of course if the individual is exposed to heat in a degree that affects him only, the rule applicable to a class is applied, the difference being that in that case the class is limited to one person. That, however, does not necessarily exclude others who may be exposed in a less degree than that single individual, but nevertheless to a greater degree than the general public in the same neighborhood.
For the foregoing reasons it is my belief that the majority opinion unquestionably runs counter to the controlling principle underlying Workmen's Compensation cases, which is that Compensation Acts are to be liberally interpreted and construed. *Page 92
I think also that the majority opinion, in applying the rule applicable to hypothetical questions in actions at law in compensation cases has adopted a rigidity that it is the purpose of Code, 23-1-15, to relax. The language of the section referred to is in part as follows: "The Commissioner shall not be bound by the usual common law or statutory rules of evidence, * * *". Of course it is the duty of the Commissioner to pass upon the admissibility of evidence, and also to weigh that evidence and find according to its value and amount. He is both court and jury. Even in actions at law that are submitted to the trial judge in lieu of a jury, the presumption is that he has not considered improper evidence, even though admitted, unless the fact that he has done so affirmatively appears.Wolfe v. Ohio State Life Ins. Co., 113 W. Va. 884,170 S.E. 182. See also, Lindner v. Daniels, 121 W. Va. 210,2 S.E.2d 267. I do not believe that a more rigid rule should be applied to compensation cases.