Hawkins v. Smith

Decision Date20 May 1912
PartiesHATTIE HAWKINS v. JAMES SMITH and L. C. WHITTAKER, Appellants
CourtMissouri Supreme Court

Appeal from Jasper Circuit Court. -- Hon. Howard Gray, Judge.

Affirmed.

Spencer Grayston & Spencer for appellants.

(1) Plaintiff's action is based on the Act of May 10, 1907. (Laws 1907, p. 251). This may give a right of action to the injured agent or servant, but does not transmit any cause of action to the widow in case the agent or servant is killed. Strottman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; McMurray v. Railroad, 125 S.W. 751; Henderson v. Railroad, 133 S.W. 151. (2) The Act of May 10, 1907, is unconstitutional under the provision of: 1st. The Fourteenth Amendment to the Constitution of the United States. 2nd. The Fifth Amendment to said Constitution. 3rd. Section 30 of article 2 of the Constitution of Missouri. 4th. Section 53 of article 4 of said Missouri Constitution, because the act abridged the privileges and immunities of citizens of the United States and deprives persons of property without due process of law and denies to the operators of certain mines the equal protection of the law. Because by the act the property of certain mine operators is taken without due process of law. Because the act is special or class legislation. Because it undertakes to make an arbitrary and unnecessary classification of certain laborers not based on any substantial difference between them and other laborers. Because it improperly undertakes to make a classification between mines producing and mines not producing lead, zinc coal or other valuable minerals, and is therefore class or special legislation. Lochner v. People, 198 U.S. 45; Railroad v. Ellis, 165 U.S. 150; Paddock v. Railroad, 155 Mo. 524; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Ashbrook, 154 Mo. 375; In re Flukes, 157 Mo. 125; Railroad v. Westby, 178 F. 619. The act in question provides that every person, etc., operating a mine producing lead, etc., or other valuable minerals, shall be liable for all damages sustained by any servant or agent thereof while engaged in operating such mine, by reason of the negligence of any other agent or servant thereof. Then the operation, construction and repair of concentrating mills, flumes and tramways wholly above ground is expressly excluded from the provisions of the act. A difference is made between mines producing and those not producing lead, zinc, coal and other valuable minerals. A distinction is also made between the acts of fellowservants in mining and getting the ore, on the one hand, and in cleaning same and preparing it for market. The act also attempts to make a rule as to such mines different from that applicable to the other business carried on in the State. There is no basis for any of these attempted classifications.

F. L. Williams, R. A. Mooneyham and P. D. Decker for respondent.

(1) Assuming that the act approved May 10, 1907, known as the Mining Fellow-Servant Law, is valid, the plaintiff has a right to maintain this cause of action. By virtue of said fellow-servant law J. Hawkins, plaintiff's husband, had a right to maintain a cause of action if he had lived. Laws 1907, p. 251. Section 2865, R. S. 1899, now section 5426, R. S. 1909 deals with the same subject as the Mining Fellow-Servant Law, to-wit, liability for personal injuries. The two statutes are cognate and in pari materia. They are supplemental to each other and must be considered together. By virtue of said survival act, section 2865, whatever cause of action Hawkins would have in case he had lived is transmitted to his widow, the plaintiff. Racho v. Detroit, 90 Mich. 92; Philo v. Railroad, 33 Iowa 47; Powell v. Sherwood, 162 Mo. 605; State v. Klein, 116 Mo. 264; State v. Kimball, Wils. 174 (Ind.); Coats v. Barrett, 49 Ill.App. 175. When the Legislature passed the fellow-servant mining act giving a cause of action to the injured party, if he lived, it naturally thought that this cause of action would be transmitted to his widow and orphans in case the injury resulted in death. This is clearly shown by section 4 of the Mining Fellow-Servant Act. Why should the Legislature specifically forbid the employer to make a contract limiting his liability based upon the contingency of death if said Legislature intended that death of the injured party would end the liability of the employer? (2) The Act of May 10, 1907, is constitutional. The reasons urged against its constitutionality are the identical reasons which were urged against the constitutionality of the Railroad Fellow-Servant Law, and which were considered and overruled by this court in the case of Powell v. Sherwood, 162 Mo. 617. We admit that classification for legislative purposes must have some reasonable basis upon which to stand. The peculiar and unusual hazards incident to the labor of miners forms a sufficient basis for legislative discrimination to establish classification. The difference in the hazards and nature of the work of the men who dig the ore underground and the men who clean the ore on top of the ground is a sufficient basis to justify the Legislature in excepting the men on top of the ground from the application of the law. The Legislature did not intend to make and did not make a distinction between mines producing and mines not producing ore. The word "producing" should be taken with the context and not considered alone. It was used in the sense of description and not of limitation. The phrase, "a mine producing lead, zinc, coal and other valuable minerals," means the same as the phrase "lead, zinc, coal and other valuable mineral producing mine." If the Legislature had intended, as appellant suggests, to exempt mines that were not producing ore, it would have said so in plain and unequivocal terms as it did when it exempted men employed above ground in section 4a. Powell v. Sherwood, 162 Mo. 617; Wilmington v. Fulton, 205 U.S. 60.

BLAIR, C. Brown, C., concurs. Valliant, C. J., Lamm, Ferriss, Kennish and Brown, JJ., concur; Woodson, J., concurs in separate opinion to be filed in five days; Graves, J., dissents.

OPINION

In Banc

BLAIR C.

J. Hawkins having met death in one of appellants' lead and zinc mines by reason of the negligence of a fellow-servant, his widow brought this suit and recovered judgment under the Act of May 10, 1907 (Secs. 5440-5444, R. S. 1909), known as the "Mining Fellow-Servants Law."

To reverse that judgment appellants' counsel contend that (1) the act mentioned is unconstitutional and (2) no cause of action survives to respondent under the facts stated.

1. It is insisted that the act under which judgment was recovered contravenes the provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States and of section 30, article 2, and section 53, article 4, of the Constitution of Missouri.

An inspection of sections 5440-5444, Revised Statutes 1909, discloses that the draughtsman followed closely the fellow-servant law applying to railroads, the constitutionality of which has been upheld by this court against substantially the same objections made to the act now in question (Powell v. Sherwood, 162 Mo. 605, 63 S.W. 485), and in this case as in that, the argument is virtually confined to an effort to maintain that the classification adopted for the purposes of the law is purely arbitrary and, therefore, legally indefensible.

In view of the unusual hazards incident to the labors of miners, legislation applicable to them as a class has frequently been upheld by this and other courts (Hamman v. Cen. Coal & Coke Co., 156 Mo. 234; State v. Murlin, 137 Mo. 297, 38 S.W. 923; State v. Cantwell, 179 Mo. 245, 78 S.W. 569, and cases cited), and, generally speaking, we see no reason for concluding that an act abolishing the fellow-servant rule in the case of miners is any more open to the objections that it results in a denial of the equal protection of the laws and is a deprivation of property without due process of law than are the many enactments of like character relating solely to railroads and whose constitutionality has often been vindicated by the courts.

In the case of Hamman v. Cen. Coal & Coke Co., supra, this court gave full recognition to the principle that the dangers of mining are so great, unusual and distinctive in character as to warrant legislation specially applicable to those engaged in that occupation, subjecting mine operators to greater liability than others in case of the death of a miner from actionable negligence. The act upheld in that case was not like that attacked in this, but the principle applied is amply sufficient, we think, to justify the conclusion that the fact that the act in question applies to miners only constitutes no infringement of the constitutional provisions mentioned.

In view of this and other recognitions by this court of the fact that for the purposes of legislation, the basis of the distinction between mining and other occupations is like in character to that which supports the validity of fellow-servant legislation applicable solely to railroads, we are convinced that the Legislature possesses full power to enact similar legislation affecting miners and mine operators as a distinct class. In fact, the contrary is not seriously contended in this case.

In two respects, however, appellants assert that the Legislature has improperly exercised its power so to legislate, in that the act (1) excludes from its operation those engaged in certain duties on the surface and (2) is applicable only to producing mines.

There is a broad distinction discernible between the hazards incident to the performance of their duties by those miners engaged in working...

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