Elliott v. The Brazil Block Coal Company

• Citation: 58 N.E. 736,25 Ind.App. 592
• Decision Date: 27 November 1900
• Docket Number: 3,286
• Parties: ELLIOTT ET AL. v. THE BRAZIL BLOCK COAL COMPANY
• Court: Indiana Appellate Court

58 N.E. 736

25 Ind.App. 592

ELLIOTT ET AL. v. THE BRAZIL BLOCK COAL COMPANY

No. 3,286

Court of Appeals of Indiana

November 27, 1900

From the Clay Circuit Court.

Affirmed.

Albert Payne and S.D. Coffey, for appellants.

G. A Knight, for appellee.

OPINION

HENLEY, C. J.

The only question presented by the record in this case arises upon the ruling of the lower court in sustaining appellee's demurrer to the several paragraphs of appellants' complaint. The complaint is in three paragraphs and in each paragraph it is alleged that the appellants are the children and only heirs at law of John W Elliott, who lost his life on the 12th day of January, 1895, in a coal mine owned by appellee. John W. Elliott was a servant of appellee, and his death was caused through the negligent acts of appellee. Appellants were all minors at the time of the death of their father and but one had obtained his majority on the 18th day of May, 1898, the time of the filing of the complaint.

The three paragraphs of complaint are literal copies of the three paragraphs of complaint in the case of Boyd, Adm., v. Brazil Block Coal Co., ante, 157. The only question decided by the court in that case was that under § 7473 Burns 1894 the administrator of the decedent was not the proper party to prosecute an action for death caused by wrongful act growing out of a violation of the mining act. The court held in that case that the action was not in the personal representative of the decedent, but in the persons named in the act. This question has since been passed upon by the Supreme Court. See Maule Coal Co. v. Partenheimer, 155 Ind. 100, 55 N.E. 751. It is contended in the case at bar that this action having been commenced more than three years after the cause of action accrued, it is controlled by § 285 Burns 1894, as to the time within which the action must be brought; that § 7473 Burns 1894, being a later enactment upon the same subject changes the general statute only in respect to the persons who may maintain the action, and that in all other respects the provisions of § 285, supra, are in full force. By § 285, supra, the time within which an action may be brought under said statute is limited to two years. The right to maintain an action for the death of a human being is purely statutory. Such a right did not exist at common law. Indianapolis, etc., R. Co. v. Keeley, 23 Ind. 133; Jackson v. Pittsburgh, etc., R. Co., 140 Ind. 241, 40 Am. St. 192, 39 N.E. 663.

We will now proceed to examine the laws enacted in this State on the subject of death by wrongful act. If these various acts upon the same subject are to be construed in pari materia then the provision of the general act (§ 285) as to the limitation of the action applies to all, and each paragraph of complaint in the case is bad, because it shows upon its face that more than three years had elapsed from the time the cause of action accrued to the time the action was commenced. By § 285, supra, the right of action for death caused by wrongful act was first created. That section is as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $ 10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

The next enactment upon this subject is § 267 Burns 1894, which gives a right of action for the death of a child to the father or mother or guardian. It is provided in this section as follows: "A father (or in the case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward."

The next enactment upon the subject is § 5310 Burns 1894. This section is a part of an act requiring railroad companies to give certain signals upon the approach of a locomotive to a crossing of a turnpike or other highway. By § 5310, it is provided as follows: "The amount of damages which may be recovered under the provisions of this act, whether for bodily injury or death, shall be within the discretion of the court or jury trying the cause: Provided, that in case of death such damages shall not exceed the sum of $ 5,000."

We come then to the statute known as the coal mining act, under which this action was brought. It is provided by § 7473 Burns 1894, as follows: "That for any injury to person or persons or property occasioned by any violation of this act, or any wilful failure to comply with any of its provisions, a right of action against the owner, operator, agent or lessee shall accrue to the party injured for the direct injury sustained thereby, and in case of loss of life by reason of such violation, a right of action shall accrue to widow, children, or adopted children, or the parents or parent, or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed, for like recovery for damages for the injury sustained by reason of such loss of life or lives." It is a settled rule of law that all statutes in pari materia must be construed together. State v. Gerhardt, 145 Ind. 439, 44 N.E. 469; Wasson v. Bank, 107 Ind. 206, 8 N.E. 97; Jeffersonville, etc., R. Co. v. Dunlap, 112 Ind. 93, 13 N.E. 403; Berry v. Louisville, etc., R. Co., 128 Ind. 484, 28 N.E. 182; Thornburg v. American Strawboard Co., 141 Ind. 443, 50 Am. St. 334, 40 N.E. 1062; Shea v. City of Muncie, 148 Ind. 14, 46 N.E. 138; Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788; Robertson v. State, 109 Ind. 79, 10 N.E. 582; City of Madison v. Smith, 83 Ind. 502; City of Cincinnati v. Holmes, 56 Ohio St. 104, 46 N.E. 514; Steele v. Lineberger, 72 Pa. 239; Prather v. Jeffersonville, etc., R. Co., 52 Ind. 16.

In Thornburgh v. American Strawboard Co. supra, it is held that §§ 267, 285, Burns 1894, must be construed together. Monks, J., speaking for the court, said: "It is also settled that § 267 and § 285 Burns 1894, are to be construed together, the first named section being applicable to cases of minors and the latter to those of adults, and minors whose father and mother have relinquished their right respectively to the services of the child by emancipation or otherwise. Berry v. Louisville, etc., R. Co., 128 Ind. 484, 28 N.E. 182, and cases cited." In State v. Gerhardt, supra, the court say: "All statutes in pari materia are to be construed together. ...