Bowerman v. Lackawanna Mining Co.
| Decision Date | 02 February 1903 |
| Parties | MARY A. BOWERMAN, Respondent, v. LACKAWANNA MINING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) Plaintiff's petition does not state any cause of action in that it does not show any right in plaintiff to maintain this action or that defendant has failed to comply with the provisions of the statute, this action being founded upon sections 8820 and 8822, Revised Statutes 1899. (2) The statute must be strictly construed. McNamara v Stevens, 76 Mo. 329; Gibbs v. Hannibal, 82 Mo 143; Burkes v. Railroad, 91 Mo. 86; Kelley v. St. Louis, 152 Mo. 596; Brown v. Railway, 70 Am. St. Rep. 666. (3) Plaintiff is not entitled to maintain this action not being one of the persons provided for in the statute. The rule of ejusdem generis is in full force in this State. Black, Interpretation of Statutes, page 141; Brooks v. Cook, 44 Mich. 617; State v. Schuchman, 133 Mo. 111; Brannell v. Adams, 146 Mo. 70; Joplin v. Leckie, 78 Mo.App. 8; State ex rel. v. Ennis, 79 Mo.App. 12. (4) The statute gives a right of action only to those who are legally dependent upon deceased for support. In other words those persons whom the law makes it decedent's duty to support, and does give the right of action where there is only a moral obligation, or a good will or friendship support. Good v. Towns (56 Vt. 410), 48 Amer. Rep. 799. (5) The plaintiff was not entitled to recover under the evidence (conceding that she comes within the terms of the general clause). The evidence shows that she was not dependent on deceased for support. She lived in her own house, used her own furniture, did the cooking and part of the washing for her two sons who lived with her, owned two other houses from which she received $ 8 to $ 10 per month rent. There is no evidence that deceased ever furnished her a dollar nor any evidence as to the amount of his earnings. The evidence shows that he worked irregularly and for six months was away and in no manner helping, that plaintiff and one adult single son still live together. In fact the evidence tends more to the idea that plaintiff supported deceased than that deceased supported plaintiff. The statute gives the right of action to one dependent for support on the deceased. Sec. 8820, R. S. 1899. Under the statute there must be an actual dependency on deceased for support. Webster's Dictionary, defining "Dependent." 5 Amer. and Eng. Ency. of Law (1 Ed.), 596; 8 Amer. and Eng. Ency. of Law, 903 and 904; Hodnett v. Railroad, 156 Mass. 86; Houlihan v. Railroad, 164 Mass. 555; Duval v. Hunt, (34 Fla. 85), 15 So. 76; Tel. Co. v. McGill, 57 F. 699; 5 Am. and Eng. Ency. of Law, 596; 8 Am. and Eng. Ency. of Law (2 Ed.), 903; 156 Mass. 164 Mass., 34 Fla. and 57 Fed., cited above. (6) The word "required" in section 8822 must be read and construed as "requested" or "demanded." Adams v. Coal Co., 85 Mo.App. 494; Bonner v. Lead Co., 69 Mo.App. 601; Leslie v. Coal Co., 110 Mo. 31; Debath v. Coal Co., 141 Mo. 497; 21 Am. and Eng. Ency. of Law (1 Ed.), 22; Black on Interpretation of Statutes, ch. 2, art. 16, page 25; Black on Interpretation of Statutes, ch. 5, art. 57, page 128; R. S. 1899, sec. 4160; State v. Jones, 120 Mo. 305; Warren v. Paving Co., 115 Mo. 572; State ex rel. v. Marion Co. Court, 128 Mo. 427. (7) The measure of damages is the pecuniary loss sustained by plaintiff, and before plaintiff can recover she must furnish evidence upon which to base the verdict. In the case before the court, there is no evidence upon which to base the judgment for damages in this cause. Knight v. Lead & Zinc Co., 75 Mo.App. 541, and cases cited; Smith v. Railroad, 28 L. R. A. 573; Van Brunt v. Railroad, 78 Mich. 530; Clinton v. Laning, 61 Mich. 359; Coal & Min. Co. v. Limb, 47 Kan. 469.
Gardner & Cameron and Blair & Decker for respondent.
(1) Section 8820 and 8822, Revised Statutes 1899, do apply to lead and zinc mines. They apply to all mines alike. Acts of 1881-85 and 1887, on Mines and Mining; Hamman v. Coal & Coke Co., 156 Mo. 232; Boemer v. Lead Company, 69 Mo.App. 601. (2) Plaintiff is included in the persons authorized by section 8820, to maintain an action for violation of the mining law. Where the intention of the Legislature is plain as it is in this case, no rule of interpretation like the rule of ejusdem generis, is necessary. Rules for the construction of statutes are only intended to aid in ascertaining the legislative intent and not for the purpose of controlling it or confining the operation of the statute within narrower limits than was intended by the lawmakers. State ex rel. v. Corkins, 123 Mo. 67; St. Joseph v. Elliott, 47 Mo.App. 421; State v. Williams, 35 Mo.App. 548. (3) The word "required" as used in section 8822 means "needed" or "necessary." It does not mean "requested" or "demanded." Boemer v. Lead Co., 69 Mo.App. 601; Leslie v. Coal Co., 110 Mo. 40; Century Dictionary and Cyclopedia. (4) Plaintiff did not need to have been legally or entirely dependent upon her deceased son, prior to his death, in order to recover in this case. Daley v. Iron Co., 29 N.E. 507; McCarthy v. Order of Protection, 26 N.E. 866; Ballau v. Gile, 50 Wis. 619; Haulihan v. Railway, 42 N.E. 108; Railroad v. Adams, 55 Pa. St. 499; Railway v. Sweet, 92 Am. Dec. 206; Railway v. Long, 26 S.W. 114; Railway v. Southwick, 30 S.W. 594; Legion of Honor v. Perry, 5 N.E. 638; Daniels v. Railway, 12 S.E. 365; Clay v. Railway, 10 S.E. 967; Railway v. Gravett, 26 L. R. A. 553.
The defendant is an incorporated mining company engaged in operating a lead and zinc mine in this State. The plaintiff is the mother of M. R. Bowerman who was an employee of the defendant and who, while engaged in working for defendant in its mine, received certain injuries from which he died.
This is an action based on sections 8820 and 8822, Revised Statutes. There was a trial which resulted in judgment for plaintiff and defendant appealed.
I. The defendant objects that this action can not be maintained because plaintiff is not one of the class of persons specially named in said section 8820, article 2, chapter 133, Revised Statutes, which provides: "For every injury to persons . . . occasioned by a violation of this article or failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; and in case of loss of life by reason of such violation or failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any person or persons who were before such loss of life dependent for support on the person or persons so killed for a like recovery of damages sustained." The plaintiff is neither the widow of the person so killed, his lineal heir or adopted child, and therefore, unless the following concluding words of the section, to-wit: "or to any person or persons who were before such loss of life dependent for support on the person so killed" gives her a right of action, she has none.
The defendant invokes the application to such concluding words of the rule of interpretation which requires that where general words follow particular and specified words, the former must be confined to things of the same kind as those specially used. Rules for the interpretation of statutes are most manifestly intended to aid in ascertaining the legislative intent rather than to control such intent or to confine the operation of a statute within narrower limits than was intended by the Legislature. Sutherland on Stat. Const., sec. 279. And if the intention is clearly expressed and the language used is without ambiguity, all technical rules of interpretation should be rejected. State v. Corkins, 123 Mo. 56, 27 S.W. 363.
Section 8820 gives a right of action to any person standing in any one of the following relations to the "person so killed," i. e., that of widow, lineal heirs, adopted children, or dependent upon him for support. Persons who were dependent upon his bounty before his death are as much specified and particularized as any one of the other persons or classes of persons to whom the right of action is given by the section. The section is not a statute in which general words follow particular words. Each person or class of persons for whose benefit the section was enacted are specified and particularized--the one as fully as the other. There is no ambiguity in the language used. The intention, it seems to us, is so clearly expressed that there is neither necessity nor occasion for the application of the rule of ejusdem generis.
But defendant further contends that even if the rule just referred to has no application, that still the plaintiff is not entitled to recover because the statute under consideration gives a right of action to only those who are legally dependent for support upon the person so killed; and as upholding this contention cites us to Good v. Towns, 56 Vt. 410. A statute of Vermont provided that in case of the death of a person from the use of liquors unlawfully furnished him, a person who is in any manner dependent on the deceased for the means of support may recover from the person unlawfully furnishing such liquor, damages, etc. The plaintiff in the case just cited was the bastard child of a father who had died from the use of liquors unlawfully furnished him, and it was held that the statute referred to meant legal dependency--a dependency that the party depended on is legally bound to respond to; and that since a father of an illegitimate child was not bound to support it, it was not dependent on him. That is, it had no claim...
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