Maule Coal Co. of Princeton v. Partenheimer

Decision Date13 December 1899
Citation155 Ind. 100,55 N.E. 751
PartiesMAULE COAL CO. OF PRINCETON v. PARTENHEIMER.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

Action by John Partenheimer, as administrator of the estate of Robert Poneleit, deceased, against the Maule Coal Company of Princeton, Ind. Judgment for plaintiff. Defendant appeals. Reversed.Gilchrist & De Bruler, L. M. Gudgel, and Miller & Elam, for appellant. L. C. Embree, for appellee.

JORDAN, J.

This action was commenced and prosecuted in the lower court by appellee, as administrator of the estate of Robert Poneleit, against appellant, the Maule Coal Company of Princeton, Ind., to recover damages on account of the death of his decedent, caused by the alleged negligence of appellant. The complaint is in three paragraphs, and it discloses that the defendant (appellant herein) is a corporation organized under the laws of this state, and is engaged in operating a certain coal mine in Gibson county, Ind. This mine, at the time of the fatal accident, is alleged to have been over the depth of 400 feet, and was reached by an open shaft. Appellee's decedent, at and prior to the date of his death, was in the employ of appellant, at work about this mine, in the capacity of a blacksmith. The complaint gives a description of the manner in which the mine was ventilated, and it appears, from the averments therein, that dangerous and explosive gases collected in the mine, which the defendant neglected to expel by necessary appliances provided for ventilation, and that the persons employed therein were not provided with suitable safety lamps, so as to prevent an explosion of such gases. It further appears from the complaint that appellee's decedent, on the day of the accident, was directed by appellant's superintendent to go down into the mine to repair a door; that he was supplied with an open miner's lamp, and assurances given him that the mine was free of gas, and that it was safe for him to work therein. After he had descended into the mine, and while there engaged in doing the work mentioned, appellant, it is charged, allowed certain cages which ran up and down the shaft, and connected the mine with the open air, to remain suspended in the shaft in such a position as to interfere with the ventilation of the mine, and that it further negligently permitted certain fans, intended and used to ventilate the mine, to be stopped on the day of the accident for over one hour, by reason of which a large amount of gas which had accumulated in the mine ignited from the fire of open lamps, to which it was exposed, and that such gas exploded with great force, and thereby caused the death of the decedent. It is also charged that Robert Maule, employed by appellant as superintendent and mine boss, was incompetent for the discharge of the duties imposed upon him as such mine boss; and the complaint further discloses that the number of men employed by appellant in the operation of the mine was 10 and over; and it is also disclosed that the deceased left surviving him a widow and certain minor children, dependent upon him for support, and that plaintiff was duly appointed administrator of his estate; and it further appears, under the averments of the pleading, that the decedent, at the time of the accident, was not guilty of contributory negligence. A demurrer for insufficiency of facts was overruled to each paragraph of the complaint, and, upon the issues joined, a trial by jury resulted in a verdict in favor of appellee; and, over appellant's motion for a new trial, judgment was rendered thereon.

It is first contended by appellant's counsel that the complaint is insufficient on demurrer, for the reason that the action cannot be prosecuted or maintained by appellee, as administrator of the deceased employé. It is insisted that the action falls within, and is governed by, the provisions of an act of the legislature pertaining to coal mines, approved March 2, 1891 (Acts 1891, p. 57, Burns' Rev. St. 1894, § 7461 et seq.), and that the right of action which appellee seeks to enforce is lodged by the legislature, under the thirteenth section of that statute, in the particular persons therein designated. This section reads as follows: “That for any injury to person or persons or property occasioned by any violation of this act, or any willful 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 to 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.” If this contention can be sustained, it will necessarily result in a reversal of the judgment; for the rule of practice is well settled that a demurrer to a complaint for insufficiency of facts calls in question the right of the plaintiff to maintain the action. Board v. Kimberlin, 108 Ind. 449, 9 N. E. 407, and cases there cited.

Counsel for appellee, however, insist that section 13, supra, which confers the right of action upon persons in the order therein named, cannot be considered as controlling in this action, for the reason that it must be held invalid when the law of which it forms a part is tested by section 19, art. 4, of the state constitution, which provides that: “Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” The contention is that the statute in controversy violates this provision of our organic law in two respects: First, that it embraces more than one principle subject; second, that there is no general subject expressed in the title of the act. It is insisted that the statute is clearly open to the first objection, because the first five sections thereof relate exclusively to the subject of weighing coal delivered from coal mines; and hence it is argued that the section vesting the right of action in the widow or children of a husband and father whose death is caused by the violation of the provisions of the act in question is wholly incongruous to the general subject, which, it is insisted, is that relating to weighing coal, and therefore is not a matter germane to, or properly connected with, the general subject. The validity of the law being assailed, that question must necessarily be first determined. The title of the act in dispute is as follows: “An act regulating the weighing of coal, providing for the safety of employés, protecting persons and property injured, providing for the proper ventilation of mines, prohibiting boys and females from working...

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39 cases
  • Princeton Coal Mining Co. v. Lawrence
    • United States
    • Indiana Supreme Court
    • June 7, 1911
    ...for the death of a human being, unless the facts averred bring the case within the provisions of some other statute. Maule Co. v. Partenheimer, 155 Ind. 100, 55 N. E. 751, 57 N. E. 710;Collins, etc., Co. v. Hadley, 38 Ind. App. 637, 75 N. E. 832, 78 N. E. 353;Boyd v. Brazil, etc., Co., 25 I......
  • Princeton Coal Mining Co. v. Lawrence
    • United States
    • Indiana Supreme Court
    • June 7, 1911
    ...legislative intent. The right of action under § 27 is not taken away. Couchman v. Prather (1904), 162 Ind. 250, 70 N.E. 240; Maule Coal Co. v. Partenheimer, supra. It next urged that no cause of action is shown because it is not alleged that the failure to sprinkle was a wilful neglect, and......
  • State ex rel. Devening v. Bartholomew
    • United States
    • Indiana Supreme Court
    • June 23, 1911
  • State ex rel. Devening v. Bartholomew
    • United States
    • Indiana Supreme Court
    • June 23, 1911
    ... ... an act relates. Maule Coal Co. v ... Partenheimer (1900), 155 Ind. 100, 55 N.E. 751; ... ...
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