Deep Vein Coal Co. v. Rainey

• Decision Date: 19 April 1916
• Docket Number: 8,918
• Citation: 112 N.E. 392,62 Ind.App. 608
• Parties: DEEP VEIN COAL CO. ET AL. v. RAINEY, ADMINISTRATOR
• Court: Indiana Appellate Court

112 N.E. 392

62 Ind.App. 608

DEEP VEIN COAL CO. ET AL. v. RAINEY, ADMINISTRATOR

No. 8,918

Court of Appeals of Indiana

April 19, 1916

Rehearing denied June 29, 1916.

From Gibson Circuit Court; Simon L. Vandeveer, Judge.

Action by William H. Rainey, administrator, against the Deep Vein Coal Company and the Princeton Coal Company. From a judgment for plaintiff, the defendants appeal. Reversed, as to Deep Vein Coal Company.

Affirmed, as to Princeton Coal Company.

Lucius C. Embree and Morton C. Embree, for appellants.

William H. Rainey and Harvey Harmon, for appellee.

OPINION

CALDWELL, J.

The averments of appellee's complaint are in substance as follows: That each appellant is a corporation organized under the laws of Indiana for the purpose of mining coal; that, on February 27, 1913, appellant Deep Vein Coal Company was the owner of a coal mine in Gibson County, which prior thereto it, as such owner, had leased to appellant Princeton Coal Company for the purpose of having the latter operate it; that the latter, as lessee, on said day was, and for more than sixty days prior thereto had been engaged in operating the mine with the full knowledge and consent of the former, and in so doing the latter employed and used more than ten men, towit, more than 200 men; that in the process of operating the mine entries were driven into the coal, from which entries rooms were turned off, among them being room No. 1, off of a designated entry, in which room there was a traveled way; that on said day, appellee's decedent, John Boger, was, and for more than sixty days prior thereto had been, in the employ of the Princeton Coal Company as a miner, and that on said day pursuant to the directions of the Princeton Coal Company he was and for two days prior thereto, had been, working in said room; that, during all the time decedent was working in said room, it was the duty of appellant Princeton Coal Company to use ordinary care to keep the room and the roof of the traveled way in a reasonably safe condition; that said appellant negligently omitted to perform such duty, and carelessly and negligently permitted the roof of the room to become unsafe, and with full knowledge of the condition of the roof and room, negligently failed to take down and remove therefrom certain loose slate and rock, and with such full knowledge of the condition of the roof over the traveled way said appellant on said day negligently directed the decedent to enter said room for the purpose of mining coal; that decedent had no knowledge of the unsafe condition of the room, and thereupon, in obedience to the said orders of appellant Princeton Coal Company, and believing the room to be safe, he entered the room and proceeded along the traveled way towards his place of work, whereupon, after he had proceeded along said traveled way a distance of ten feet, large quantities of slate and rock fell from the roof on him and so injured him that as a consequence he died March 23, 1913, leaving surviving him, his widow, who was dependent upon him for support.

A trial resulted in a verdict against both appellants in the sum of $ 1,350, on which judgment was rendered. Appellant the Deep Vein Coal Company has assigned as error the overruling, first, of its demurrer to the complaint; second, of its motion for judgment on the answers to interrogatories; and, third, of its motion for a new trial.

In order that the complaint may be held to state a cause of action against either appellant, it must appear therefrom that such appellant owed the decedent the duty to exercise reasonable care for his safety; that it failed to perform such duty, and that such failure resulted proximately in the infliction of the fatal injuries suffered by decedent. If the complaint discloses that appellant the Deep Vein Coal Company owed decedent such a duty, that fact must be gathered from the allegations that said appellant was the owner of the mine; that it had leased it to its coappellant to be operated; and that the latter as lessee was operating it with the knowledge and consent of the former. Appellee argues that, by virtue of certain provisions of the Act of 1905 and amendments thereto made in 1911 (Acts 1905 p. 65; Acts 1911 p. 626; § 8569, et seq. Burns 1914), such a duty on the part of the Deep Vein Coal Company existed. Our attention has been called to no decision construing that act or a similar act of any other jurisdiction, in its relation to the question presented here, and we know of no such decision. We are, therefore, required to construe the act. Section 11, § 8579 Burns 1914, requires that the operator of any coal mine in this state shall employ a competent mine boss, who shall be an experienced coal miner. Section 12, § 8580 Burns 1914, provides in substance, among other things, that the mine boss shall visit and examine all working places in the mine when miners are working at least every alternate day and that such places be made safe and secure; and that, upon acquiring knowledge from his own inspection or other sources of the existence of loose coal, slate, or stone in the roof over the traveled ways used by miners in going to or from their places of work, he shall remove the same or cause it to be made secure by the use of timbers, a sufficient supply of which he is required to keep at hand for such purpose.

Appellee contends that the various duties specified by § 12, supra, rested upon appellant Deep Vein Coal Company, by virtue of its being the owner of the mine, although it had leased it to its coappellant, and was not directly engaged in operating it. Appellee bases such contention on the provisions of § 1 of the act (supra, § 8569 Burns 1914), which, so far as material here, is as follows: "The term 'operator,' as used in this act, is hereby defined to mean any corporation, company, firm, person, proprietor, lessee, owner or occupier of any coal mine in this state, or any person upon whose account the mine is operated." An inspection of the various sections of the act discloses that the term "operator" occurs a number of times therein. The duties of an operator are outlined with great particularity. These duties involve the details of working the mine. Thus, he is required to make or cause to be made from time to time progressive maps of mine extensions (§ 2, § 8560 Burns 1914); to construct outlets and air and escape shafts as the work advances (§ 3, § 8571 Burns 1914); to provide a specifically described cage with certain safety appliances to be used in lowering miners to the works and in hoisting them therefrom (§ 4, § 8572 Burns 1914); to protect the openings of the mine, provide lamps and keep them lighted when the men are working, to install speaking tubes from the surface to the various compartments and to formulate a code of signals (§ 7, § 8575 Burns 1914); to furnish accurate scales for weighing coal and to keep United States standard weights by which the scales must be tested each morning. There are specific directions to the operator respecting the weighing of the coal, with a provision that any dispute between him and the check weighman representing the miners, as to the accuracy of the scales shall be referred to the inspector of mines (§ 9, § 8577 Burns 1914). The operator is prohibited from placing in charge of the hoisting engine any other than experienced, competent, and sober engineers (§ 10, § 8578 Burns 1914), and is required to adjust the system of ventilation to the changing conditions of the mine and the varying numbers of workmen employed and animals used (§ 11, § 8579 Burns 1914). These and other provisions of the act make it entirely clear that the term "operator", as used therein, has reference to the person, firm, or corporation actively and directly engaged in operating the mine.

An analysis of § 1 leads to a like conclusion. It would seem, as a matter of course, that it was not the legislative intent to declare that the term "operator" as used in the act means "any corporation, company, firm, person," etc., broadly stated and regardless of whether such corporation, etc bears any relation to the mine. The evident legislative intent was that the term "operator", as used in the act, should be construed to mean and include only a corporation, company, firm, or person "upon whose account the mine is operated." It would be an absurdity to presume that the legislature intended or attempted by § 1 to place upon a corporation having no interest in the mine the duties and liabilities of an operator under the act. The other terms used in the section, as "proprietor, lessee, owner, occupier," are so connected with those first quoted, as "corporation", etc., that if the clause, "upon whose account the mine is operated," limits the latter it must follow that it limits the former also. That is, it is only an owner or a lessee "upon whose account the mine is operated" that comes within the meaning of the term "operator" as used in the act. The section, by the use of the word "lessee", contemplates that the owner may lease a mine to another. If he may lease it, he may place the lessee in possession, with full power to operate on his own account and for his own profit, on compliance with the terms of the lease, as by the payment of rent or royalty, etc. That is, the section recognizes that the owner may by a valid contract deprive himself of the power to direct the workings of the mine, and yet, if the section is construed as appellee contends, the law would hold him responsible for results completely beyond his control and so beyond his control only for the reason that he acted pursuant to authority conferred by law. In such case, the owner would be held responsible for the conduct of another person, where, although he has proceeded lawfully, he...