Princeton Coal Mining Co. v. Lawrence

• Decision Date: 07 June 1911
• Docket Number: No. 21,829.,21,829.
• Citation: 176 Ind. 469,95 N.E. 423
• Parties: PRINCETON COAL MINING CO. v. LAWRENCE.
• Court: Indiana Supreme Court

176 Ind. 469

95 N.E. 423

PRINCETON COAL MINING CO.

v.LAWRENCE.

No. 21,829.

Supreme Court of Indiana.

June 7, 1911.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by Josie Lawrence against the Princeton Coal Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 93 N. E. 1032.

Embree & Embree, for appellant. J. M. & S. L. Vandeveer and J. W. Brady, for appellee.

MYERS, J.

This action is by the widow to recover for the death of her husband under the coal mining act of 1905 (Acts 1905, p. 65 et seq.; Burns 1908, § 8569 et seq.) and the amendment by the act of 1907 (Acts 1907, p. 347 et seq.; Burns 1908, § 8602 et seq.).

The complaint, the sufficiency of which is attacked, sets out with great detail the physical outline of appellant's coal mine, as to the depth of the main shaft, the main entries, the cross entries, the rooms, the break throughs, the air shafts, the employment of miners whose duty it was to produce coal at a fixed price per ton, the employment by the miners, with the knowledge and consent of appellant, of shot-firers of whom appellee's decedent was one, to whom appellant paid one-fourth of a cent per ton in addition to the compensation paid them by the miners. The complaint then alleges that on the 8th day of January, 1908, and for more than six months immediately prior thereto, as the defendant on said day, and for six months prior thereto, well knew, said entries of said mine were so dry that the air became charged with coal dust, the defendant carelessly and negligently and with full knowledge thereof permitted and allowed in all of the foresaid entries large quantities of fine, dry, dangerous, and explosive coal dust to accumulate, remain, permeate, and pervade the air, and willfully and negligently omitted and neglected to regularly and thoroughly sprinkle said entries; that on said 8th day of January, 1908, and for more than 20 days prior thereto, the said Solomon Lawrence and McCellan St. Clair were employed in said mine as shot-firers under and pursuant to the terms hereinbefore alleged, with the full knowledge and consent of the defendant; that on said 8th day of January, 1908, the said Solomon Lawrence and McCellan St. Clair entered said mine for the purpose of discharging their duties as shot-firers as aforesaid; that they proceeded from place to place until they came to and fired a charge of blasting powder in the room nearest the air course on the southeast entry, and after lighting said charge proceeded hastily out of said room and northward on said entry to said air course, and thence westward along said air course; that said last-mentioned charge of blasting powder did not blast the coal, but was discharged through the entrance of said hole, and because thereof discharged fire into the air. Because the defendant negligently failed and omitted to regularly sprinkle said entries that were so dry as aforesaid, said charge of blasting powder, when it was so discharged as aforesaid, ignited said coal dust, and said coal dust exploded with great force and violence, and blew with great force and violence timbers, cars, slate, and other débris along said entries and said air courses, and filled all of said entries and air courses with flames and fire; that said timbers, cars, and slate struck the said Solomon Lawrence with great force and violence, and he was likewise wholly enveloped in said fire and flames, and by reason thereof was then and there crushed, mangled, burned, and instantly killed.

Three questions are presented: First, has appellee, widow of Solomon Lawrence, the capacity to sue in her individual name under the provisions of the act of 1905, or did the amendment of 1907 so far embrace the subject of the act of 1905 as to repeal it and take away the right of individual action, and relegate claimants for injuries to the general statute upon the subject?

[1][2] It is settled that one who seeks to avail himself of a statute conferring a right must state facts in his complaint which bring him within the terms and meaning of the statute. Ft. Wayne, etc., Co. v. Parsell, 168 Ind. 223, 79 N. E. 439;Chicago, etc., Co. v. Barnes, 164 Ind. 143, 73 N. E. 91;Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, 102 Am. St. Rep. 185;American, etc., Co. v. Hullinger, 161 Ind. 673, 67 N. E. 986, 69 N. E. 460:Hodges v. Standard, etc., Co., 152 Ind. 680, 52 N. E. 391, 54 N. E. 383;Hilliker v. Citizens' Co., 152 Ind. 86, 52 N. E. 607;Harrison v. Stanton, 146 Ind. 366, 45 N. E. 582;Porter v. State, 141 Ind. 488, 40 N. E. 1061;Thornburg v. American, etc., Co., 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334;Burns v. Grand Rapids, etc., Co., 113 Ind. 169, 15 N. E. 230;Wabash R. Co. v. Cregan, 23 Ind. App. 1, 54 N. E. 767. Also that no action can be maintained for the death of a human being, unless authorized by an express statute. Wabash R. Co. v. Hassett, 170 Ind. 370, 83 N. E. 705; Thornburg v. American, etc., Co., supra; Jackson v. Pittsburgh Co., 140 Ind. 241, 39 N. E. 663, 49 Am. St. Rep. 192; Burns v. Grand Rapids Co., supra; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793;Stewart v. Terre Haute, etc., Co., 103 Ind. 44, 2 N. E. 208. Also that the general statute giving a right of action to personal representatives for wrongful death applies to every action to recover 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 Ind. App. 157, 57 N. E. 732.

[3] By an act of the General Assembly in force from and after April 15, 1905 (Acts 1905, p. 65 et seq.; Burns 1908, § 8569 et seq.), the general subject of mining coal, the manner of doing so, the means and appliances to be used, are prescribed in detail. Under section 8579 the subject of ventilation is presented, and at the close of that section is the following provision: “In cases (where) the roadways or entries of any mine are so dry that the air becomes charged with dust, such roadways or entries shall be regularly and thoroughly sprinkled. And it shall be the duty of the inspector to see that this provision is carried out.” This act of 1905 was the culmination of a series of acts, beginning in 1879 (Acts 1879, p. 19, amended in 1881; Acts 1881, p. 8, enlarged in 1885; Acts 1885, p. 65; Acts 1891, p. 57, amended in 1897; Acts 1897, p. 226, amended in 1901; Acts 1901, p. 540), upon the subject of the protection of the health and safety of coal miners, which have since been supplemented by the act of 1907 (Burns 1908, § 8602 et seq.), and by an act in 1909 (Acts 1909, p. 330). Perusal of these acts will disclose the gradual growth of the statutory precaution which we must assume the Legislature had deemed expedient, in view of the unusual hazards and dangers of the business, to protect the lives and health of miners. Prior to 1905, so far as we are able to discover, there was no requirement to sprinkle roadways or entries.

This action is predicated upon section 8597, Burns 1908, reading as follows: “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 operator 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, first to the widow, if any, second, if no widow, to the children or adopted children (if any) jointly; third, if neither the foregoing classes, then to the parents jointly, or parent; fourth, or to any person or persons jointly, who were before such loss of life dependent for support on the person or persons killed, for like recovery of damages for the injury sustained by reason of such loss of life or lives.”

By the act of 1907, § 8613 (Burns 1908), it is provided: “The inspector of mines shall have power in his discretion to order the sprinkling of any coal mine, or part of mine, by notice in writing to the operator thereof, or person in charge of the same, and after receiving such notice it shall be unlawful for any person to act in violation thereof, and to omit such sprinkling. Copies of any notice given hereunder shall be posted at the mine entrance by the inspector of mines.” The contention of appellant is that the provisions of the act of 1907 repealed the act of 1905 on the subject of sprinkling mines, and reposes the subject wholly in the discretion of the inspector, and that the failure to sprinkle can only be willful, and a violation of the statute, after this discretion has been exercised and notice has been given by the inspector, and that under the act of 1907 no provision is made for action by the widow, unless the omission is willful, and that it can only be a violation, and willful, after the inspector has given notice, and that no notice is alleged, and that the Legislature must have had some object and purpose in view in the use of the words in section 8597 “in violation of this act, or any willful failure to comply with any of its provisions,” and that under this state of the law, and the allegations of the complaint, only a personal representative can maintain the action. The title of the act of 1907 (Acts 1907, p. 347) is “An act concerning coal mines and to provide for the health and safety of persons employed in coal mines, and matters connected therewith, and providing penalties, and repealing all laws in conflict therewith.” By the twenty-first section of the act, it is provided that: “The provisions of this act shall be cumulative of other laws upon the subject of coal mining: Provided, however, that all laws and parts of laws in conflict herewith, are hereby repealed.” On the same day this act was passed, another act was passed (Acts 1907, c. 157), with an...