Hochstettler v. Mosier Coal And Mining Company

• Decision Date: 19 December 1893
• Docket Number: 1,012
• Citation: 35 N.E. 927,8 Ind.App. 442
• Parties: HOCHSTETTLER v. MOSIER COAL AND MINING COMPANY
• Court: Indiana Appellate Court

35 N.E. 927

8 Ind.App. 442

HOCHSTETTLER v. MOSIER COAL AND MINING COMPANY

No. 1,012

Court of Appeals of Indiana

December 19, 1893

From the Clay Circuit Court.

Judgment reversed.

S. W Curtis, C. McNutt, J. G. McNutt and G. A. Knight, for appellant.

E. S Holliday and G. A. Byrd, for appellee.

OPINION

REINHARD, J.

The appellant sued the appellee for damages, alleged to have been sustained by him as the result of a personal injury received from the caving in of the roof of a coal mine or shaft in which he was at work while in the employ of the appellant as a coal miner. The sustaining of the appellee's demurrer to the complaint is the only error assigned and discussed. The complaint proceeds upon the theory of negligence on the part of the appellee in failing to comply with the provisions of section 3, p. 66, of the act approved March 6, 1885 requiring the owners or operators of coal mines to supply the workmen therein with suitable timber for props and supports to secure the workings from falling in. Elliott's Supp., section 1758. It is contended by appellee's counsel that this section was repealed by implication by the act approved March 9, 1891 (Acts 1891, page 57), and that for this reason no liability existed at the time this action was instituted.

No special right of action was conferred, in terms, by this statute, but it made the failure to supply the appliances described in the section quoted, an act of negligence per se, on the part of the mine owner, agent, or operator.

The act approved March 9, 1891, reenacted the substantial provisions of the section hereinbefore quoted, provided penalties for the violation thereof, and conferred a special right of action in damages to any person injured by reason of failure on the part of the mine owner, agent, or lessee.

It is agreed by the parties that the right of action in this case, if any, accrued while the act of 1885 was in full force. It is also agreed that when the present action was commenced the law of 1891 was in force, and if it had the effect of repealing the act of 1885, the latter had ceased to operate when this action was instituted.

It is the contention of appellee's counsel, and this seems to have been the conclusion reached by the court below, that inasmuch as the act of 1885 was repealed when this action was commenced, the reenactment of the section by the law of 1891 did not save the appellant any rights he might have had under the former law, and that hence no recovery can be had in this action. Appellant's counsel, on the other hand, contend that by virtue of another statutory provision all his rights under the repealed act are saved to him.

The section of the statute just alluded to is as follows:

"Whenever an act is repealed which repealed a former act, such act shall not thereby be revived, unless it shall be so expressly provided. And the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." R. S. 1881, section 248.

It will be observed that the only feature calculated to save any rights in this section is in respect to the right of recovering a penalty or forfeiture, or upon a liability incurred under the act repealed. The contention of appellant's counsel is met by appellee's counsel by the argument that the act of 1885 does not create any liability or confer any right of action, and that hence nothing could have been saved to the appellant by virtue of section 248, supra. In this view of the law we can not concur. We incline to the opinion that the failure to comply with the statutory requirements constituted negligence per se, and, if injury resulted, there was a right of action in the appellant, and a liability on the part of the appellee, at the time the injury was incurred. If such right was created, and such liability existed, solely by virtue of the act of 1885, then it was saved by reason of section 248, supra.

But if the law of 1885 conferred no such right and created no such liability, then the same existed by virtue of the common law and independently of the statute, otherwise there would have been no such right or liability even while the statute was in force,--a position not sought to be maintained by the appellee.

If we take the view that the right and liability existed independently of the act of 1885, it must have been because negligence was actionable at common law, and the statute in question only defined what should be regarded as negligence in this particular.

In either case there was a liability...