dissenting:
This dissent may be unique in the annals of dissenting opinions in this State in that I dissent to the tone of the majority opinion rather than to its holding. A fair reading of the majority opinion implies to me that this Court has been waiting many years to remove the yoke of oppression from the workers of this State by providing a vehicle for recovery of common law jury awards for negligently inflicted, work-related injuries in addition to the admittedly parsimonious awards of Workmen’s Compensation. Furthermore, the majority opinion fairly implies that we are awaiting an opportunity to create a new legal fiction worthy of the common law fine and recovery of the ancient Britons1 to be known as “constructive *720intent to injure” by which we shall magnanimously supplement compensation awards in every routine industrial accident.
Our law has long recognized that injuries arising from the deliberate intention of the employer to injure are outside the immunity provision of the workmen’s compensation law. W.Va. Code, 23-4-2 (1969). Brewer v. Appalachian Constructors, Inc., 135 W. Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W. Va. 631, 186 S.E. 612 (1936). See. also, Eisnaugle v. Booth,_ W. Va._, 226 S.E.2d 259 (1976). It appears to me that where my more moderate views are impaled in these consolidated cases is pure procedure, i.e., in the interrelationship between the practice of notice pleading and the necessity to eliminate all conceivable factual disputes before summary judgment can properly be awarded.
I cannot cavil with the majority’s reversal based on procedure. Notice pleading, pursuant to W. Va. R.C.P. 8(a), and summary judgment practice, pursuant to R.C.P. 56(c) prevent a judge from “sniffing out” a totally meritless case and summarily dismissing itl I cannot disagree with the majority opinion that in all three cases the petitioners alleged sufficient matter to be allowed an opportunity to develop facts.
*721Nonetheless, I have some educated feelings for the facts in each of these three cases and it appears to me that only in the Mandolidis case has the plaintiff any legitimate grounds for recovery. In that case not only was a safety statute violated, but, in addition, the particular safety hazard at issue, a dangerous saw, was brought to the attention of the management by a safety inspector who closed down operation of the saw; management disregarded the safety shut down; and, management ordered the injured workman to operate the dangerous saw implying by past actions that to do otherwise would cost him his job. These facts, if proven, demonstrate more than even gross negligence; they demonstrate a willful, wanton, and reckless disregard for human safety.
1 doubt that the plaintiff in Snodgrass or Dishmon can develop anything other than gross negligence, and I would hasten to point out that gross negligence is not the same thing as either intent to injure or willful, wanton, and reckless disregard for human safety. In order for a workman to recover under the intentional injury exception to workmen’s compensation immunity, W.Va. Code, 23-4-2 [1969], the standard of proof should be at least as high as that required to prove malice in a murder case. If an act involves such a wanton and willful disregard of an unreasonable human risk as to constitute malice then no actual intent to kill or injure is necessary.2
This is not the same standard used for criminal negligence. A motorist might pass another car or speed in a manner which, if he causes the death of another, would make him guilty of manslaughter. Another man, without *722any specific intent to kill anyone, might walk onto his porch and open fire with a machine gun which, if he causes the death of another, would make him guilty of murder. What makes the motorist guilty of manslaughter and the shooter guilty of murder is the shooter’s cruel and wicked indifference to human life. The key is that the act of the shooter shows a viciousness not found in the motorist.3 The motorist is violating a positive law mandate while the shooter is violating a natural law mandate.
Accordingly, what concerns me in the tone of the majority opinion is its inspiration to the bar to do a substantial disservice to the economy of this State by instituting frivolous suits every time a workman is injured by anything other than his own negligence. Violation of a safety statute alone does not constitute intentional injury, Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969); unsafe working conditions do not constitute intentional injury, Southern Wire & Iron Co. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962); failure to follow recommended procedures or to take standard precautions do not constitute intentional injury. All people, both employers and workmen, are negligent much of the time, and the theory of the Workmen’s Compensation Act is to compensate work-connected injury as a normal cost of doing business. What was merely common sense in days of yesteryear has today been codified into elaborately detailed safety codes, so that to say that a safety statute was violated is only to say that an employer has failed to use reasonable care. Violation of a positive law mandate does not elevate negligence to intent to injure no matter how gross the negligence; only violation of a natural law mandate, i.e., an evil blackness of heart and *723callous indifference to the suffering of others, would so elevate it. While we may be outraged by the parsimony of the statutory compensation awards, we cannot be outraged at the theory of the compensation scheme, which while denying a claimant the advantage of a common law judgment when the employer is at fault, still has the employer pay even when the claimant is at fault.
Often it is procedure itself which distorts the entire process; the tone of the majority opinion invites nuisance law suits, a high percentage of which will be settled (particularly by small employers) in preference to sustaining the costs of litigation. The risk, not necessarily the eventuality, of an enormous common law jury award in the event of a capricious judicial process (i.e., an unusually plaintiff oriented trial judge combined with faulty appellate review) are such that some settlements not contemplated by the statutory scheme will inevitably be forthcoming. Settlements are based on the if s, maybe’s and might’s of the judicial process, and not upon the inevitability of a result in consonnance with the ideal administration of the law. The settlements I hypothesize combined over the course of a year, plus the attendant costs of defending frivolous law suits, are the type of expenses which not only divert needed resources from the fund available for wages, plant modernization, and stockholders’ dividends, but contribute to inflation by increasing costs and prices in the oligopolistic sector of the economy, and reducing production in the market sector of the economy where companies unable to pass along these costs collapse.
Obviously, I am not alleging that by being reactionary about the administration of our workmen’s compensation laws we can cure the economic ills of mankind everywhere; I am merely pointing out that numerous untoward consequences can arise from lack of attention to the distortive effects of the legal process itself, and thus tone in judicial opinions becomes important.
Without amending the Rules of Civil Procedure or completely reversing this Court’s direction on the law of summary judgment, it would be difficult to encourage *724trial judges to dismiss frivolous law suits on the bare pleadings without an opportunity to develop the facts. Nonetheless, the law appears clear that the trial courts would be remiss in their duty if they permitted more than one case alleging intentional injury in a hundred to go to the jury. With regard to cases involving nothing but gross negligence on the part of the employer, the plaintiff should be given an opportunity to develop his case on depositions, and then the trial court should grant summary judgment. If neither plaintiff nor defendant wishes to engage in extensive pre-trial discovery, then at the trial stage, notwithstanding the impaneling of a jury, the trial judge should dismiss the plaintiffs case at the close of plaintiffs evidence without the least hesitation unless facts have been clearly proven demonstrating deliberate intention to injure or kill or a reckless, wanton, and willful disregard of human life. This is one area of the law in which the threshold issue concerning statutory immunity is in no regard a “jury question.” Minute supervision by the trial judge is mandated in all cases because the exception to the blanket workmen’s compensation immunity which would permit a plaintiff to submit his case to a jury is so narrow, and the construction of what does or does not constitute a case within the exception is so technical, that trial judges should ruthlessly decide the issue as a matter of law in the first instance.
I recognize that the tone of the majority opinion faithfully represents the judicial philosophy of the majority writer, but it implies an attitude on the part of this Court which is contrary to both the legislative intent and this Court’s faithful interpretation of that intent over the years. The tone is wrong for what it implies; the holding is entirely correct with regard to Mandoli-dis, but correct only in the most narrow procedural way with regard to Snodgrass and Dishmon.
“Pine and recovery was a fictitious and prearranged suit in the form of a writ of right started by the person to whom the property was to be conveyed in fee simple. He would allege (of course falsely) that he was the owner of the property in fee simple by a title superior to the defendant’s; that the defendant had no title to the land, having come into possession of it after the complainant had been wrongfully ousted therefrom by some third person named. The defendant, tenant in tail, would then appear, making no denial of the complainant’s allegations, but calling upon one X, alleged to be the man who had conveyed the land to him in tail with warranty, to appear and defend the title which he had warranted. X would then appear and defend the title, but afterwards would default, and thereupon judgment would be given to the complainant that he recover the land in fee simple, and to the tenant in tail that he recover from X lands of equal value in recompense for the lands *720alleged to have been conveyed by X with warranty to the tenant in tail. X, the vouchee, selected to take this pretended part because judgment proof, was usually the court crier, and came to be called the common vouchee because used so frequently in this capacity. He had never any interest in the property. The judgment against him for an equal amount of land in favor of the tenant in tail and the heirs of his body was regarded as sufficient recompense for the loss of the entail by such heirs; so that the recovery suffered by the tenant in tail was binding as against them, the complainant taking by virtue of the judgment an estate in fee simple which cut off the entail in favor of the heirs of the body of the tenant in tail, and also the reversion of the original donor, it having been judicially determined that the complainant’s title in fee simple was superior to the title of the tenant and his donor. The complainant would then convey the land in fee to the tenant in tail, or convey to another at the tenant’s direction, or pay the tenant the purchase-price agreed upon in case an actual sale to him was intended.” 4 Thompson on Real Property § 1866, p. 486.
Brewer v. State, 140 Tex. Cr. 9, 143 S.W.2d 599 (1940) (Intoxicated automobile owner who turned car over to intoxicated companion and watched the companion make numerous reckless moves before fatal collision is guilty of murder); People v. Gonzales, 239 N.E.2d 783 (Ill. 1968) (Firing shotgun into group of men implies criminal malice); Commonwealth v. Malone, 354 Pa. 180, 47 A2d 445 (1946) (Playing “Russian Poker” is reckless conduct indicating malice); People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497 (1924) (Firing shots into inhabited house evidences malice).
The workmen’s compensation scheme is based on personal injury “by accident.” Jordan v. State Workmen’s Compensation Comm’r., 156 W. Va. 159, 191 S.E.2d 497 (1972); therefore, while this standard seems very strict it must be remembered that it’s not the depravity of the employer’s conduct that is being tested, but the narrow issue of the intentional versus the accidental quality of the precise injury.