Domestic Block Coal Co. v. De Armey, No. 22,328.

Docket NºNo. 22,328.
Citation100 N.E. 675, 179 Ind. 592
Case DateJanuary 22, 1913
CourtSupreme Court of Indiana

179 Ind. 592
100 N.E. 675

DOMESTIC BLOCK COAL CO.
v.
DE ARMEY.

No. 22,328.

Supreme Court of Indiana.

Jan. 22, 1913.


Appeal from Superior Court, Vigo County; John E. Cot, Judge.

Action by McClelland De Armey against the Domestic Block Coal Company. Judgment for plaintiff, and the defendant appeals. Transferred from Appellate Court under clause 2, § 1394, Burns' Ann. St. 1908. Affirmed.


[100 N.E. 677]

See, also, 98 N. E. 875.

J. T. Walker, of Evansville, and Lamb, Beasley, Douthitt & Crawford, of Terre Haute, for appellant. Wymond J. Beckett, of Indianapolis, G. S. Payne, of Brazil, and W. F. Elliott, of Indianapolis, for appellee.


MORRIS, J.

This was an action by appellee against appellant for damages for personal injuries for alleged negligence, under section 12 of the mining act of 1905. Acts 1905, p. 65; Burns' Stat. 1908, § 8580.

The trial court overruled a demurrer to the complaint, which action is here assigned as erroneous.

There was a trial by jury, verdict for appellee in the sum of $3,000, and judgment thereon. Appellant's motion for a new trial was overruled, and this ruling is also assigned as error.

So much of the statute as is applicable to the case 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 all loose coal, slate and rock overhead wherein miners have to travel to and from their work are taken down or carefully secured.” Burns, § 8580.

The complaint is in one paragraph, and alleges that at and prior to the time of the injury appellant was engaged in mining coal by means of a shaft sunk from the surface to the coal bed, and then by constructing roads or entries through the bed from which openings are turned, called rooms, and from which the coal is mined; that 50 men, including appellee, were employed in the mine; that appellee was engaged in operating a machine, and his duties required him to move the machine from one part of the mine to another, and operate the same, in mining coal; that appellant's mine boss directed him to work in room No. 7, which had been driven in about 200 feet from the entry to the face of the coal, and appellant had constructed, in the room, a track about 180 feet long, consisting of rails laid on ties, constituting a roadway or travel way, from the entry into and through the room to the face of the coal; and that this travel way was the only road or way by which the mining machine could be moved into and through the room and to the face of the coal; that when injured he was moving the machine in the room, along the track, preparatory to cutting coal; that from the end of the travel way to the face of the coal a distance of from 14 to 20 feet intervened; that he had moved the machine to the end of the travel way, and was moving the same into the space between the end of the travel way and the face of the coal, and while so doing, and while he was on the travel way, he was injured by reason of a large and heavy piece of slate or stone falling on him from the roof of the room.

The allegations relative to appellant's negligence, and appellee's lack of knowledge of danger, are 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 employs 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 or 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,

[100 N.E. 678]

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 or stone fell from the roof of said room No. 7, as aforesaid, and injured this plaintiff, as aforesaid, without his fault.”

[1] It is earnestly contended by appellant that, considering the complaint on the theory most favorable to appellee-that of charging a violation of that part of the act which requires the mine boss to “see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work are taken down or carefully secured”-it yet fails to state facts sufficient to repel the demurrer, because it is not directly averred that the slate or stone was loose or dangerous prior to the accident, or that appellant failed to perform any duty owing to appellee, or that it had any notice of the danger, or what was the proximate cause of the injury. Appellant insists that the absence of direct averments of facts cannot be deemed as supplied by recitals, conclusions, or arguments. On the other hand, counsel for appellee assert that under the liberal provisions of our Code this court would not be warranted in reversing the judgment because of the defective condition of the complaint.

Our Code of Civil Procedure, adopted in 1852, was modeled after that of the state of New York, and contains the following provisions:

Section 47: “All the distinct forms of pleading heretofore existing, inconsistent with the provisions of this act, are hereby abolished; and hereafter the forms of pleadings in civil actions, in courts of record, and the rules by which the sufficiency of the pleading is to be determined, are modified as prescribed by this act.” 2 R. S. 1852, p. 37; Burns' Stat. 1908, § 341.

Section 49: “The first pleading on the part of the plaintiff is the complaint. The complaint shall contain: *** Second, a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” 2 R. S. 1852, p. 38; Burns' Stat. 1908, § 343.

Section 90: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties. ***” 2 R. S. 1852, p. 45; Burns' Stat. 1908, § 385.

Section 101: “The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect.” 2 R. S. 1852,...

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132 practice notes
  • Vandalia Coal Co. v. Butler, No. 9472.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 1918
    ...the rules for construing a complaint as stated in the well-considered case of Domestic Block Coal Co. v. De Armey (1913) 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, we hold there was no error in overruling appellant's demurrer. [2] The second paragraph of the complaint contains a number of a......
  • Cleveland, C., C. & St. L. Ry. Co. v. Starks, No. 7908.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1914
    ...serious injury of decedent. Under the more recent decisions, the paragraph is therefore sufficient. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99;Kahle v. Crown Oil Co. (Sup.) 100 N. E. 681;Vandalia R. R. Co. v. Clem, 49 Ind. App. 94, 96 N. E. 789. [3] It is......
  • Budkiewicz v. Elgin, J. & E. Ry. Co., No. 29562
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1958
    ...facts so impliedly averred will be given the same force as if directly stated. Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Agar v. State, 1911, 176 Ind. 234, 94 N.E. 819; Valparaiso Lighting Co. v. Tyler, 1911, 177 Ind. 278, 96 N.E. 768; Richmond Ligh......
  • Neal v. Home Builders, Inc., No. 29027
    • United States
    • Indiana Supreme Court of Indiana
    • March 23, 1953
    ...that can be implied from other allegations by reasonable and fair intendment. Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Vandalia Coal Co. v. Coakley, 1915, 184 Ind. 661, 111 N.E. 426.' Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.......
  • Request a trial to view additional results
132 cases
  • Vandalia Coal Co. v. Butler, No. 9472.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 19, 1918
    ...the rules for construing a complaint as stated in the well-considered case of Domestic Block Coal Co. v. De Armey (1913) 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, we hold there was no error in overruling appellant's demurrer. [2] The second paragraph of the complaint contains a number of a......
  • Cleveland, C., C. & St. L. Ry. Co. v. Starks, No. 7908.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1914
    ...serious injury of decedent. Under the more recent decisions, the paragraph is therefore sufficient. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99;Kahle v. Crown Oil Co. (Sup.) 100 N. E. 681;Vandalia R. R. Co. v. Clem, 49 Ind. App. 94, 96 N. E. 789. [3] It is......
  • Budkiewicz v. Elgin, J. & E. Ry. Co., No. 29562
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1958
    ...facts so impliedly averred will be given the same force as if directly stated. Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Agar v. State, 1911, 176 Ind. 234, 94 N.E. 819; Valparaiso Lighting Co. v. Tyler, 1911, 177 Ind. 278, 96 N.E. 768; Richmond Ligh......
  • Neal v. Home Builders, Inc., No. 29027
    • United States
    • Indiana Supreme Court of Indiana
    • March 23, 1953
    ...that can be implied from other allegations by reasonable and fair intendment. Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Vandalia Coal Co. v. Coakley, 1915, 184 Ind. 661, 111 N.E. 426.' Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.......
  • Request a trial to view additional results

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