Domestic Block Coal Co. v. Armey

• Citation: 97 N.E. 706
• Decision Date: 02 February 1912
• Docket Number: No. 7,467.,7,467.
• Parties: DOMESTIC BLOCK COAL CO. v. DE ARMEY.
• Court: Court of Appeals of Indiana

97 N.E. 706

DOMESTIC BLOCK COAL CO.

v.DE ARMEY.

No. 7,467.¹

Appellate Court of Indiana.

Feb. 2, 1912.

Appeal from Superior Court, Vigo County; Jno. E. Cox, Judge.

Action by McClelland De Armey against the Domestic Block Coal Company. From a judgment for plaintiff, defendant appealed. Reversed, with leave to amend.Lamb, Beasley, Douthitt & Crawford, for appellant. G. S. Payne and Wymond J. Beckett, for appellee.

HOTTEL, J.

Appellee sued appellant to recover damages for personal injuries received by appellee while in the service of appellant in the latter's coal mine. A trial by jury resulted in a verdict in favor of appellee in the sum of $3,000. The court overruled a motion for a new trial, and from a judgment rendered on the verdict this appeal is prosecuted.

The errors relied upon for reversal are (1) in overruling the demurrer to appellee's amended complaint; (2) in overruling appellant's motion for a new trial.

The complaint in this case, after the usual averments showing that appellant is a corporation, and that it employs more than 50 men, and after alleging the employment of a mining boss and his duties, the employment of appellee, and his work and duties under his employment, together with averments describing the room and travel-ways in and about which appellee's work required him to be, and the mining machine with which appellee was required to work and the manner of its removal from place to place over the travel-ways, then avers that appellee, while he was upon this travel-way, was injured without his fault by reason of a large and heavy piece of slate or stone weighing from one to two tons falling from the roof of said room upon appellee, charging the manner of his injury and the negligence of said mine boss as follows: “And plaintiff says that he was injured by reason of the negligence of said mine boss in failing and neglecting to examine said roof of said room No. 7 with proper care every alternate day as was his duty so to do, and by reason of the negligence of said mine boss in failing to discover that said large piece of slate or stone in the roof of said room became loose and in a dangerous condition, and was likely to fall and injure the miners, including this plaintiff, who worked in said room and traveled back and forth on said travel-way, and that he was injured without his fault as aforesaid by reason of the negligence of said mine boss in failing to discover and secure and make safe the roof of said room by taking down said loose and dangerous slate or stone, and that defendant's mine boss negligently failed to notify this plaintiff that the said roof of said mine was defective, and that a large and heavy piece of slate or stone was likely to fall therefrom and injure this plaintiff, and thereby permitted this plaintiff to go into said room while said roof was in said dangerous condition, and thereby negligently caused and permitted this plaintiff to pass into said room under said defective and dangerous part of said roof, and was thereby injured as aforesaid without his fault. And plaintiff says that defendant's said mine boss knew that said roof was insecure and defective, and was in a condition to fall at any time, and knew that said condition of said roof was dangerous, and was likely and liable to fall and injure the employés of the defendant in said room, including this plaintiff, and had notice and knowledge of said condition of said room in said mine from two to six days before the happening of the accident to this plaintiff, as herein alleged, and in ample time to have taken down said slate or stone from said roof, and during all of said time said miners were at work in said room and working place of said mine. And plaintiff says that defendant's said mine boss negligently failed to take down said loose slate or stone as aforesaid, and negligently failed to notify this plaintiff of said dangerous condition of said roof, and plaintiff says that said loose and dangerous slate and stone in said roof could have been taken down from the roof of said room by said mine boss by means of picks and crowbars and other instruments used for said purpose in said mine and removed from said room without in any way interfering with the proper working of said mine, or without interfering in any way with the mining of coal in said mine. And plaintiff says that he had no notice or knowledge that said roof was defective and dangerous and likely to fall and injure him at any time prior to the happening of said accident as herein alleged; and plaintiff says that by reason of the negligence of said mine boss as aforesaid, said heavy piece of slate and stone fell from the roof of said room No. 7, as aforesaid, and injured this plaintiff, as aforesaid, without his fault.”

The ruling of the court upon the demurrer to this complaint is the first alleged error presented for our consideration. The position and argument of appellee's counsel is in effect a concession that the complaint is not a model pleading and is open to some criticism, but it is insisted that when considered as a whole, and read in the light of such ultimate facts as must be necessarily inferred from the facts which are well pleaded and given a liberal construction with a view to substantial justice between the parties, it is sufficient to withstand demurrer. We recognize the existence of the rules applicable to the construction of pleadings generally upon which appellee's contention is based. They should not be overlooked or disregarded by the courts in their determination of the construction to be placed upon or the effect to be given to a pleading.

[1][2] There are, however, other rules which are equally binding upon the court which are, we think, applicable to this case, and must likewise be considered in determining the sufficiency of this complaint to withstand the attack made upon it by the demurrer. These are: (1) “When a pleading is tested by a demurrer, it must stand or fall by its own averments. It can neither find weakness nor strength from other parts of the record.” Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345-359, 53 N. E. 290, 44 L. R. A. 638;Cincinnati, etc., R. Co. v. Smock, 133 Ind. 411-417, 33 N. E. 108;Chicago, etc., R. Co. v. Chaney, 97 N. E. 181;Shenk v. Stahl, 35 Ind. App. 493-501, 74 N. E. 538. (2) “In pleading, it is incumbent upon the plaintiff to state all facts essential to a cause of action; and, if any material fact is lacking, the complaint will go down before a demurrer.” Malott v. Sample, 164 Ind. 645-651, 74 N. E. 245;Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 24 N. E. 1046, 8 L. R. A. 636. (3) “It is an old and well-settled rule of pleading that, where doubts arise upon the pleading, they are construed most strongly against the pleader.” Holliday & Wyon Co. v. O'Donnell, 44 Ind. App. 647-655, 90 N. E. 24;Cleveland, etc., R. Co. v. Stewart, 24 Ind. App. 374, 56 N. E. 917. (4) “In cases like the one under consideration, it must appear from the material facts directly averred in the complaint that there was some connection in the way of cause and effect between the acts of negligence complained of and the injury, or that such negligent acts of omission or commission *** resulted in the injury complained of, and which result was the consequence of such negligent acts.” Laporte Carriage Co. v. Sullender, 165 Ind. 290-300, 75 N. E. 277;Davis v. Mercer Lumber Co., 164 Ind. 413-425, 73 N. E. 899;McElwaine-Richards Co. v. Wall, 159 Ind. 557-562, 65 N. E. 753.

It is admitted by appellee that this action is based upon the mining statute (section 8580, Burns 1908). The part of the same here invoked reads as follows: “The mine boss shall visit and examine every working place in the mine, at least every alternate day while the miners of such places are, or should be, at work, and shall examine and see that each and every working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miner's working place. He shall also see that loose coal, slate and rock overhead wherein miners have to travel to and from their work, are taken down or carefully secured.” Applying the above rules of construction to the complaint before us, our first inquiry is: What provision of the above statute is by this complaint charged as having been violated, which, taking the averments of the pleading as a whole, can be said to furnish a causal relation or connection with the injury complained of by appellee?

[3] The statute first provides that “the mine boss shall visit and examine every working place in the mine at least every alternate day,” and it would seem from the first or preliminary allegations of the negligence attempted to be charged that appellee's theory was that this provision of the statute had been violated, and that this was the ground of the negligence upon which appellee was relying, but, when the complaint is examined with care, we find that there is, in fact, no positive or direct averment that the mine boss did not visit and examine the roof of room No. 7 each alternate day, and we find also that the pleading, if such be its theory, is insufficient because of a failure to aver that at and during the times such visits and examinations should have been made the dangerous conditions were present and existing in said mine, which afterwards resulted in appellee's injury, and that such visits and examinations required by the statute would have revealed such condition to such mine boss. In other words, the complaint, when examined with a view of determining its sufficiency upon said theory, is found to lack, not only the direct averment that the mine boss did not visit and examine, etc., but it also lacks all the averments...