I dissent from the decision of the majority in this case for the reasons following: FIRST: I disagree on some aspects of the holding of the majority on the subject of the selection of the jury. The Court is in unity on the proposition that "Upon a showing by one defendant that its defense is materially hostile to that of a co-defendant the defendant making the showing is entitled to the number of peremptory challenges allowed by statute, from a panel increased by that number." Our difference is on *Page 564 whether the motion made by counsel for the railroad company was sufficient to call for the application of that principle, and an increase of the panel, so that each of the defendants would have been permitted to exercise four peremptory challenges. The establishment of a proposition of law is, in itself, of no value. It is the application thereof that counts.
The record shows that "After all parties announced ready for trial, counsel for The Baltimore Ohio Railroad Company stated to the Court that the interests of the defendants were antagonistic and moved the Court to call a panel of twenty-four jurors so that each defendant might have the right to strike four jurors, which motion was by plaintiff's counsel resisted, and the said motion was by the Court overruled, to which action of the Court counsel for the defendant, The Baltimore and Ohio Railroad Company, excepted." In the opinion it is held that such a motion requires some character of showing to support it, and with this I agree. It is also stated in that opinion that "* * * an examination of the pleadings possibly would show hostility," but this was followed by the statement: "* * * but we do not believe the mere statement that conflicting interests exist, without more, requires the judge to take the initiative in inspecting the pleadings." With this last statement I cannot agree. I think we should deal with the matter from a realistic standpoint, and I am disposed to believe that when the motion was made in this case, it amounted to calling to the attention of the court the contention that defendants occupied antagonistic positions, and, in my opinion, the trial court should have referred to the pleadings and, if nothing more was offered, made its decision on the motion on such pleadings. I do not agree that there was no showing made, because I think the pleadings in the case were a showing of whatever was contained therein, and that on their showing alone, the motion for a panel of twenty-four jurors should have been sustained. We have held that it was not error to do so. Horchler v. VanZandt, 120 W. Va. 452, 199 S.E. 65. I do not think it was necessary *Page 565 for counsel for one of the defendants to offer to show what the pleadings themselves contained. Of course, if the pleadings did not show the antagonistic positions of the defendants, then some additional showing would have to be made; but a reading of the opinion will disclose that there was a probability, and, as I believe, a certainty, that the pleadings themselves would have settled the question, had the court examined them. The record is not entirely clear whether the pleadings were examined: it only states that the motion of defendants was resisted by plaintiff's counsel, but I think it fair to assume that in a case of this importance, the Court had examined the pleadings at some stage of the litigation. No doubt there was at some time a discussion, which brought to the court's attention the declaration and pleas filed in the case. It was, in my opinion, error on the part of the trial court not to call for additional jurors, so that each of the defendants would have had four peremptory challenges.
SECOND: I do not subscribe to the second point of the syllabus which states: "In the absence of a joint enterprise, the negligence of the driver of a motor vehicle attempting to cross a public railroad crossing cannot be imputed to a passenger in the vehicle." This statement of law was first made in Parsons v. New York Cent. R. Co., 127 W. Va. 619,34 S.E.2d 334; and is repeated here. I think it is too narrow a statement of the rule governing imputed negligence. I agree that where a joint enterprise exists, the negligence of one joint adventurer may be imputed to the other adventurers on the theory of agency; but I think there are many other situations where negligence can be imputed, and where there is no joint enterprise. I agree, also, that in the case of a guest passenger, or where neither the element of joint adventure, master and servant, nor principal and agent exists, negligence may not be imputed to the passenger. We so held in Gilkerson v.B. O. R. R. Co., 129 W. Va. 649, 41 S.E.2d 188, and other cases therein cited sustain that view.
In 38 Am. Jur., 920, under the general head of "Imputed *Page 566 Negligence," Sections 235 and 236, there is a general discussion of the subject from which I quote in part:
"As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be cooperating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. As the rule is stated by the American Law Institute, the relation between the plaintiff and the third person must be such as to make the plaintiff responsible at common law for the negligent conduct of such third person. Conversely stated, negligence in the conduct of another will not be imputed to a party if he did not authorize such conduct, participate therein, or have the right or power to control it. * * *
"It is fundamental that the act of an agent or servant is to be deemed the act of his principal or master. The law imputes to the latter responsibility for the negligent acts of his agent or servant so far, at least, as those acts are within the scope of the employee's authority or employment, and if those acts cause injury to third persons, the law holds the principal or master liable in damages therefor. * * *"
As applied to the present case, while I see no reason why the statement should be made, and certainly it is not a necessary point of decision, it can do no harm, because, clearly, the negligence of Kirkhart cannot be imputed to plaintiff's decedent; but it does make a statement of law which we will hereafter be compelled to explain away, because it ignores the whole theory of imputed negligence of a servant or agent to his employer or principal. Undoubtedly, the negligence of a servant or agent is imputed to the employer or his principal. The statement of law *Page 567 contained in this syllabus point limits it to the case of a driver of a motor vehicle attempting to cross a public railway crossing, but I assume no one will contend that any special rule of law should be laid down governing passing over a railway crossing. The holding announced will, no doubt, hereafter be used to sustain the theory that only in case of a joint enterprise can the negligence of a driver be imputed to a passenger in an automobile, whether he be a guest passenger, or a principal or employer of the person who actually committed the act of negligence.
I did not participate in the Parsons case, and I am, therefore, free to criticize the statement of law made therein, and which is now copied into the case at bar. As stated above, the holding involved is not important in the case now under consideration, but I want to register my nonconcurrence therein, because I think it will give us trouble later on.
THIRD: I have come to the conclusion that it would be unwise to depart, in principle, from the rule laid down by this Court in Hinkelman v. Steel Corporation, 114 W. Va. 269,171 S.E. 538. In that case a physician, employed in contract practice by an employer, was held relieved of liability for alleged malpractice in treating an employee of such employer, who was a subscriber to the Workmen's Compensation Fund, on the general theory that the workmen's compensation statute relieved not only the employer, but his agents and servants as well, from such liability. I question whether relief from legal liability should extend to a physician, who had nothing to do with the accident causing the injury, but whose connection with the case arose thereafter, but such is the holding in that case. However this may be, in my opinion, our Workmen's Compensation Laws were intended to, and do, relieve employers and their employees, whether in a supervisory capacity, or otherwise, from liability for damages resulting from injury to, or the death of any employee engaged in the same enterprise or employment, *Page 568 where the employer is a contributor to the Workmen's Compensation Fund, and is in good standing with that fund.
Comparatively few instances will be found where an employer acts in a direct supervisory capacity toward his employees; but in such cases, if he is a contributor to the compensation fund, and in good standing, the injured employee, or, in case of death, his dependents, must look to the compensation fund for relief, and the employer is relieved of all liability. That was the general purpose of our Workmen's Compensation Law, which was supposedly enacted in the interest of employees.
In the great majority of instances, the employer conducts his business through agents and employees. Generally there are various grades of employees, such as managers, supervisors, bosses, and foremen, who direct the work of others. These men are the instrumentalities by which the employer functions. But for the Workmen's Compensation Laws, the employer would be liable for the negligence of his supervisory servants. The Compensation Law protects an employer against liability for his own negligence, and that of his agents and servants, and in lieu thereof requires him to contribute to a fund, out of which compensation is paid to injured employees, or, in case of death, to their dependents, whether the injuries or death result from the negligence of either the employer or his employees, or through occurrences in the course of employment unaccompanied by negligence, except in those cases where there has been wilful misconduct on the part of an employee, or disobedience of rules legally promulgated, or a self-inflicted injury. Code, 23-4-2.
This being true, I do not believe that the Legislature intended to leave to employees the right to sue other employees of the employer, whose payments into the compensation fund furnished, in part at least, the money used by the compensation department in compensating employees for injuries or death. In my opinion, the payment *Page 569 of compensation was intended to cover all damages resulting from a particular injury or death in the course of and resulting from employment, however or by whom caused among fellow-employees or employers, where protection is afforded by our Workmen's Compensation Law, except, of course, cases of intentional, wanton and malicious injury by a fellow-employee.
Admittedly, the Workmen's Compensation statute throws no light on the subject, but the general purpose of the original Workmen's Compensation Act, being benevolent in its purpose, and being intended to insure to injured employees, and their dependents in case of death, compensation for injuries sustained in industrial pursuits; and further intended to avoid the mass of litigation which had resulted from injuries in mines and factories, which was rapidly increasing, provided for compensation in all cases, whether resulting from negligence or otherwise, except only cases of wanton disobedience of rules, wilful misconduct, and self-inflicted injuries. This, I think, clearly shows that it was not the intention of the Legislature merely to relieve employers, and not relieve fellow-servants as well. It may be contended that, had the Legislature intended to make the payment of compensation operate to relieve the negligence of fellow-servants in acts causing injury to a fellow-employee, and for which compensation was paid by the employer, it could have so provided, and that the fact that it did not do so strongly argues that it was not so intended. This may be true. On the other hand, the Legislature, had it so intended, could have specifically provided that payment of compensation to an injured employee, should not be construed to prevent an injured person, or, in case of death, his personal representative, from maintaining an action against a negligent fellow-servant. In my opinion, these two arguments off-set each other, and leave us where we started and the question remains: What was the intent of the Legislature when it enacted, from time to time, what now constitutes our Workmen's Compensation Laws? *Page 570
I do not believe that it was the intent of the Legislature thus to relieve employers from liability for injury or death arising out of the labors of their employees, and, in a practical sense, transfer the burden of that liability to such of their employees as might be connected, in a negligent way, in events leading up to the injury or death involved. Presumably, the compensation which has been provided for is reasonably adequate, and there would seem to be no reason why further payments should be assessed, in the way of damages, against employees of an employer, who through his own contributions to the compensation fund has provided fair compensation for such injury or death. It occurs to me that double compensation for the same injury or loss of life was never contemplated by the Legislature.
That this is the proper interpretation of the legislative intent is manifest, when we consider the contemporaneous and continuing construction of the Workmen's Compensation Act, enacted by the Legislature at its 1915 session. For more than thirty years, the Act has been understood to relieve employees from liability for injuries sustained by those in the same employment, where the employer was a contributor to, and in good standing with, the Compensation Fund. This is attested by the fact that only once, in 1933, in the Hinkelman case was any contrary contention made; and in that case, what had been theretofore the construction given the Act, was upheld by the unanimous vote of this Court. Now it is all undone, and a "Pandora's box" opened, with consequences which no one can accurately gauge. Does anyone suppose that, had it been believed that the Act did not relieve employees, there would not have been numerous actions to recover damages, where injury or death had been the result of negligence on the part of fellow-employees; nor can anyone doubt that such actions, in great number, will be the result of the decision in this case.
The compensation paid to an injured workman, or, in case of his death, to his dependents, is rarely considered by him or them as adequate. Therefore, in all probability, *Page 571 where the negligence of a fellow-workman can be shown, actions for damages will be instituted by injured workmen, or their personal representatives. Every superintendent, supervisor, boss, foreman, and I think every fellow-worker, will perform the work assigned to him, without any expectation of sharing in the profits of the enterprise in which he works, but loaded with his employer's former liability for acts resulting in injury to, or death of, a fellow-employee, in all cases where a jury can be convinced that there was any negligence on his part. In my opinion, no individual employee should be required to take that risk, where, as here, the State, under its police powers, and on broad grounds of public policy, has made fair provision for compensation for injuries or death in industry, regardless of whether the injury or death was or was not the result of negligence.
But, it may be argued, why should not a negligent employee be held liable for his wrong? Perhaps, he should be to the same extent as an employer were it not for the Workmen's Compensation statutes, which provide for compensation for all injuries. In my view, when an employer complies with the requirements of the compensation statute, and is thereby relieved of all liability for his own negligence, and all liability resulting from the negligence of his servants, it should operate to relieve his employees as well. In my opinion, the legislative intent was to make the payment of compensation cover all damages for a particular injury, whether that injury resulted in temporary disability to work, or in death. If, in contemplation of law, full compensation is paid, no further compensation in the way of damages can be justified. This proposition is answered by the statement that employees pay nothing into the Compensation Fund; but, presumably, the payments made by employers are adequate fairly to provide compensation to persons entitled thereto, and the matter of who makes the payments is, in my opinion, unimportant.
I have not referred to cases from other jurisdictions, and have only dealt with the question of the legislative *Page 572 intent and the effect which should be given to the Act as written. The background of the Workmen's Compensation legislation, and the construction given thereto over a long period of time, convince me that it never was intended that injured persons or, in case of death, their dependents, having once received compensation, as in the case at bar, should be entitled to recover damages from their fellow-workers.
I would therefore reverse the judgment of the Circuit Court of Roane County against The Baltimore and Ohio Railroad Company, and award to it a new trial on the ground that it was denied the right to four jury challenges contended for by it; and remand the case to the Circuit Court of Roane County for that purpose; and I would reverse the judgment of said court against M. C. Kirkhart, set aside the verdict against him, and remand the case to the circuit court of said county, with direction to dismiss the action as against him.
I am authorized to state that Judge Haymond concurs with me in points FIRST AND SECOND of this dissent. He does not concur in the views expressed under point THREE hereof.