Gay v. Hocking Coal Co.

• Decision Date: 16 November 1918
• Docket Number: No. 31960.,31960.
• Citation: 169 N.W. 360,184 Iowa 949
• Parties: GAY v. HOCKING COAL CO.
• Court: Iowa Supreme Court

184 Iowa 949

169 N.W. 360

GAY

v.HOCKING COAL CO.

No. 31960.

Supreme Court of Iowa.

Nov. 16, 1918.

Appeal from District Court, Monroe County; D. M. Anderson, Judge.

Action at law to recover damages for personal injury alleged to have been sustained by reason of the defendant's negligence. There was a verdict and judgment for defendant, and plaintiff appeals. Reversed.John T. Clarkson and Fred C. Huebner, both of Albia, for appellant.

J. C. Mabry, of Albia, and Burrell & Devitt, of Oskaloosa, for appellee.

WEAVER, J.

The appellee company was engaged in the business of operating a coal mine in which the plaintiff was employed as a miner. It is the plaintiff's claim that while so employed in the company's mine the air in the place where he worked became foul and laden with “damps” and other impurities, from the breathing of which he was stricken down, his health seriously impaired, and he was rendered unable to perform labor for a period of about eight months, when he became partially restored, and that he is still weak and unable to do the full work of a man in normal condition. Because of these alleged injuries he asks a recovery of damages. It is also alleged that the defendant has refused to accept the terms of the Workmen's Compensation Act (Code Supp. 1913, §§ 2477-m et seq.).

In answer the company admits its corporate capacity, and its employment of plaintiff to work in a coal mine which it was then operating, but denies all other allegations of the petition.

The issues were tried to a jury, and verdict returned for the defendant. From the judgment on such verdict this appeal has been taken. The exceptions by appellant relate very largely to the court's charge to the jury and to the refusal of the plaintiff's request for other instructions.

The view which we take of the record renders it unnecessary for us to go very largely into the details of the testimony. It appears that plaintiff's work in the mine at the time of his alleged injury was in what is called “Room No. 10,” which was “turned off” the “30th South Entry.” Witnesses describe the plan followed to obtain a circulation of air through the rooms and entries where men were expected to work, and it is the claim of plaintiff that the plan as used and operated was defective, or was improperly designed, so that the impure air collecting in the plaintiff's room was not effectively removed, and that the injury to his health resulted therefrom. There was evidence from which the jury could have found that he was overcome while at work and became sick and disabled to perform labor, and that this was the effect of the bad or impure air which is liable to accumulate in mines if it is not excluded or expelled by the use of means properly designed therefor.

It may also be said at this point, in order to better comprehend the bearing of certain rulings of the trial court and certain instructions given the jury, that it is the contention of the appellee (1) that, at best, plaintiff's testimony tends to show that he suffered from mere sickness or disease, and not a personal injury, within the meaning of the law; in other words, it is appellee's position that the law which permits recovery for personalinjuries relates solely to wounds or bruises or hurts as distinguished from suffering, weakness, debility, and loss of time arising from what is ordinarily termed sickness or disease; and (2) that plaintiff was suffering from mere “occupational disease,” and not from any injury caused by failure of defendant to properly ventilate the mine.

With the view thus afforded of the attitude of the contending parties with respect to the merits of plaintiff's claim, we turn our attention to the legal propositions advanced by counsel.

[1] I. Notwithstanding plaintiff's allegation that the company had rejected the terms of the compensation act, and the express concession by the parties in the course of the trial that the appellee had given notice in due form of law of its rejection of the terms of said act, and had filed the same with the Industrial Commissioner, yet in defendant's argument to this court its counsel lay down as their first proposition that “it is conclusively presumed that defendant had elected to come under the compensation law,” and “plaintiff did not overcome this presumption of the statute that defendant was operating under the statute at the very time in question.” It is further to be noted that practically the entire brief of appellee is devoted to the construction and effect of the workmen's compensation act, and to the question whether a recovery can be had under said act when the alleged injury is shown to be what counsel call an “occupational disease.” But such discussion has very little pertinence to the record which this appeal brings up for our attention. Not only was the rejection admitted on the trial, but, even if this be thought in some way avoidable, the trial court expressly charged the jury that defendant had made his election and had rejected the act. That instruction was the law of the case for the jury, and it must be given effect as the law of the case for the purposes of this appeal. Defendant has not appealed, and its case here must be treated from the standpoint of the rights and liabilities of an employer who has refused to come in under the act. This being true, we think it entirely immaterial whether, under the provisions of that act, a so-called occupational disease contracted by a workman in the service of his employer would afford ground for the recovery of compensation. Having rejected the act, defendant is liable in the same manner and to the same extent as it would have been had the compensation act never been enacted, except that, when sued by an employé for a personal injury arising out of and in the course of his employment, it will be presumed that the injury was caused by the employer's negligence and certain common-law defenses will not be available to him. We may pass, then, as being outside the scope of the present case, the question whether an employer may be held liable to a workman on account of an occupational disease contracted in the service of the former where both have accepted the terms of the compensation act.

[2] Leaving out of the question the provision of the compensation act, what duty did defendant owe the plaintiff? Without attempting any comprehensive statement of the law of master and servant, it owed him at least the familiar duty to furnish him a reasonably safe place to work, an obligation which the statute had expanded by a mandatory requirement as to the manner in which that safety should be secured. The provision to which we refer is found in the Code Supplement, and reads as follows:

“The owner, operator, lessee or person in charge of any mine, whether operated by shaft, slope or drift, shall provide and maintain an amount of ventilation of not less than one hundred cubic feet of air per minute for each person employed in the mine, nor less than five hundred cubic feet of air per minute for each mule, horse or other animal used therein, which shall be so circulated throughout the mine so as to dilute, render harmless and expel all noxious and poisonous gases in all working parts of the same.” Section 2488, Supplement to the Code 1913.

[3] Construing this statute, we have said that--

“Before the proprietor has discharged his duty, regardless of the contrivances employed, or the amount of ventilation, the gases must be rendered harmless by being diluted or expelled. * * * Every person, while violating an express statute, is a wrongdoer, and is ex necessitate negligent in the eyes of the law; and an innocent person within its protection, injured thereby, is entitled to civil remedy by way of damages.” Mosgrove v. Zimbleman, 110 Iowa, 172, 81 N. W. 228.

If the air in this mine had become charged with poisonous gases to an extent to materially injure the plaintiff while employed therein, it follows of necessity that defendant had failed in its duty to so ventilate the room or place of work as to “render harmless and expel” the deleterious agent causing such injury, and in such case it follows with equal certainty that plaintiff would be entitled to recover his damages, if any.

Such, indeed, was the charge of the court to the jury; but the instructions were qualified by a proposition repeated in various forms, which to a material extent deprived the plaintiff of the benefit of the statement of law embodied therein. In the sixth and seventh paragraphs of the charge the jurors were told that it was for them, under the evidence, to find whether plaintiff's illness “was the result of, and caused by, carbon monoxide poisoning as charged by him,” and, if this was found to be true, they were then to consider and determine whether the resulting ailment “was an occupational disease, or whether it was a disease caused by the negligence of the defendant in failing to comply with the state...