Deboth v. Rich Hill Coal & Mining Co.

• Decision Date: 23 November 1897
• Citation: 42 S.W. 1081,141 Mo. 497
• Parties: DeBoth, Plaintiff in Error, v. Rich Hill Coal & Mining Company
• Court: Missouri Supreme Court

42 S.W. 1081

141 Mo. 497

DeBoth, Plaintiff in Error, v. Rich Hill Coal & Mining Company

Supreme Court of Missouri, Second Division

November 23, 1897

Error to Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

W. O Jackson and Graves & Clark for plaintiff in error.

(1) The proviso in section 7074, as amended by acts of 1891, pages 182, 183, limiting the time in which such action shall be brought, is unconstitutional and void, for the reason that such is not within the purview of the title of the act, and not germane to the subject-matter of the act, and is beyond the amendment stated in the first section or enacting clause of the act, which says what amendment shall be made to said section. Acts of 1891, p. 182; Const. of Mo., art. IV., sec 34. (2) It is unconstitutional for the further reason that the subject contained in this proviso, that is the subject of limitations of rights of action, is not clearly expressed in the title to the act of 1891. In fact, is not expressed therein at all. Const. of Mo., art. IV., sec. 28; Sutherland on Stat. Const., sec. 102, and cases cited. (3) The matter contained in this proviso is not germane to the subject being legislated upon, and contemplated by the title of the act and is therefore unconstitutional and void. Ewing v. Hoblitzelle, 85 Mo. 71; State ex rel. v. Co. Court, 41 Mo. 39; Kansas City v. Payne, 71 Mo. 159. (4) The title of the act contained nothing to indicate that a statute of limitations was going to be passed, and the proviso is therefore void. (5) We contend further that upon the institution of the first suit, May 7, 1894, the statute ceased to run, and the time from that date to December 6, 1894, the date of its dismissal, can not be counted. Statutes of limitation do not run while the suit is pending. 13 Am. and Eng. Ency. of Law, p. 745; Primo v. Lee, 56 Vt. 60; Coffin v. Cattle, 16 Pick. 386.

R. T. Railey for defendant in error.

(1) Plaintiff's petition fails to state a cause of action, because the date of injury was in June, 1893, and the present suit was not brought until December 12, 1894. Sess. Acts 1891, p. 183; R. S. 1889, secs. 2084, 4425, 4429 and 6791; Kennedy v. Burrier, 36 Mo. 128; Barker v. Railroad, 91 Mo. 94; Sparks v. Railroad, 31 Mo.App. 114; Dulaney v. Railroad, 21 Mo.App. 599; Wood on Lim. of Actions, sec. 9, p. 28; Hesse v. Ins. Co., 21 Mo. 95. (2) If the title to the original act is sufficient to embrace the provisions of the amendment, then the latter will be held good, and it is immaterial whether the title to the amendatory act be sufficient or not. St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 526; State ex rel. v. Ranson, 73 Mo. 88; State ex rel. v. Miller, 100 Mo. 444; Brandon v. State, 16 Ind. 197. (3) The title and body of the act should be considered together. Ins. Co. v. Albert, 39 Mo. 183; Dart v. Bagley, 110 Mo. 51; State ex rel. v. Slover, 134 Mo. 17; 1 Kent, Com., p. 461. (4) Details of legislation, fairly germane to the general subject of an act, need not be specially mentioned in the title. State ex rel. v. Co. Ct., 102 Mo. 537; State ex rel. v. Ranson, 73 Mo. 88; State v. Mathews, 44 Mo. 526; State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Blackstone, 115 Mo. 427; State v. Bennett, 102 Mo. 364; Lynch v. Murphy, 119 Mo. 169; State ex rel. v. Bronson, 115 Mo. 276; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Marion Co. Ct., 128 Mo. 427; State ex rel. v. Slover, 134 Mo. 16; State ex rel. v. Miller, 100 Mo. 444. (5) When the whole of a section or act amended is set out in full as amended, it is sufficient. State v. Chambers, 70 Mo. 628; State v. Thruston, 92 Mo. 326; Morrison v. Railroad, 96 Mo. 605; State v. Hendrix, 98 Mo. 375; State ex rel. v. Miller, 100 Mo. 446. (6) The constitutional mandate in regard to the title of a statute does not require a table of contents as a caption to a law. State ex rel. v. Co. Ct., 128 Mo. 441.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action by plaintiff, a coal miner, against the defendant for damages for personal injuries sustained by him while in the service of defendant. The action was begun on the twelfth day of December, 1894, in the circuit court of Bates county, but thereafter the venue was changed to the circuit court of Cass county. The petition, leaving off the formal parts, is as follows:

"The plaintiff, Frank DeBoth, for his cause of action and in this his third amended petition, says that the defendant, the Rich Hill Coal Mining Company, is and at all times hereinafter named was a mining corporation duly organized and doing business under the laws of the State of Missouri. That as such corporation, in and during the month of June, 1893, defendant was operating a coal mine near Rich Hill, Missouri, known as mine No. . That the roof of a said mine in a room therein worked by one Ed. Getterro was in a dangerous and unsafe condition, and props and timbers were much needed and required in said room to properly secure the working and the roof therein from caving in. That props and timbers for the purpose of properly securing said workings and roof had by said Ed. Getterro been demanded and requested of this defendant through its agent, the then acting pit boss of said mine, who had the immediate charge and supervision of said mine and of said room, and who was required and demanded and requested by the said Ed. Getterro to send down and furnish props and timber to make said roof secure and safe and to prevent it from caving in. That under the mining laws of the State of Missouri it was the duty of the said defendant, when requested as aforesaid, to furnish and keep on hand the necessary props and timbers with which to secure the roof and working places of said room, and under said law it was the further duty of said company to send props and timbers for such purpose to said room when the same were needed and demanded as aforesaid. That notwithstanding the fact that the said props and timbers were sorely needed and had been requested and demanded, the said defendant willfully, negligently and wrongfully failed and refused to send the same down to said room as was required and demanded thereby leaving said roof of said room in a very dangerous condition. That it was the custom, at the time of the injury hereinafter mentioned, recognized by this defendant in said mine, when a car got off the track for the miners in the neighboring room, when called upon, to assist in putting the same back upon the track, and they were bound by their employment in said mine as miners to do so. That this plaintiff on the day of June, 1893, was working as a coal miner for the defendant in said mine, in a room adjacent to the room aforesaid. That a car in said room got off the track and this plaintiff being called into said room for that purpose by the said Ed. Getterro went into said room to assist in putting said car upon the track; and while he was lifting on said car in said room for the purpose of putting it upon the track, a large piece of slate fell from the roof of said room upon him, striking him on the back, hips and legs, and mashing his hips, fracturing his back, and injuring his spinal nerve and nerves so as to deprive him entirely of the power to move his legs or any part of his body below the small of the back, or to feel any sensation in his hips or legs. That plaintiff is a coal miner by occupation, and said injury has rendered him unfit to follow his occupation, or to do any other work. That he is permanently injured and disabled; that he has already suffered and will suffer great bodily pain and mental anguish from said injury; that he has lost and will continue to lose much time therefrom; that he has been put to great expense for medicines and medical attendance, to wit, the sum of two hundred dollars; that he will be put to further expense for doctors and nurses, and that his said injuries are permanent and incurable, and that by said injuries received as aforesaid he has been damaged in the sum of fifty thousand dollars. That said piece of slate would not have fallen if said room had been properly propped and secured with timbers and props and that the said injury of plaintiff was and is wholly the result of the willful, negligent, and wrongful failure of the defendant to keep a sufficient supply of timbers and props to be used in the rooms of said mines, and to send the same down to the said room in which plaintiff was injured, to the workmen therein, to enable the said workmen therein to properly secure the roof and working place so as to keep it from caving in and falling down.

"That on the seventh day of May, 1894, he filed his petition in the circuit court of Bates county, Missouri, in substance and in form as herein filed, suing for his said damages herein which said cause was taken on change of venue by the defendant to the circuit court of Vernon county, Missouri, where it remained pending until the 6th day of December, 1894, when this...