Princeton Coal Mining Co. v. Lawrence
| Decision Date | 07 June 1911 |
| Docket Number | 21,829 |
| Citation | 95 N.E. 423,176 Ind. 469 |
| Parties | Princeton Coal Mining Company v. Lawrence |
| Court | Indiana Supreme Court |
Rehearing Denied November 17, 1911, Reported at: 176 Ind. 469 at 483.
From Gibson Circuit Court; O. M. Welborn, Judge.
Action by Josie Lawrence, as administratrix of the estate of Solomon Lawrence, deceased, against the Princeton Coal Mining Company. From a judgment for plaintiff for $ 1,000, defendant appeals. Transferred from the Appellate Court (see 47 Ind.App. 217) under § 1392 Burns 1908, Acts 1907 p. 237 § 1.
Affirmed.
Embree & Embree, for appellant.
J. M & S. L. Vandeveer and J. W. Brady, for appellee.
This action is by a widow to recover for the death of her husband. It was brought under the coal-mining act of 1905 , and the amendments by the acts of 1907 .
The complaint, the sufficiency of which is attacked, sets out with great detail the physical outlines of appellant's coal mine, giving the depth of the main shaft, the location of the main entries, the cross-entries, the rooms, the break-throughs, the air-shafts, and alleges the employment of miners 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 January 8, 1908, and for more than six months immediately prior thereto, as the defendant on said day well knew, said entries of said mine were so dry that the air became charged with coal dust, that the defendant carelessly and negligently, and with full knowledge thereof, permitted in all of the aforesaid entries large quantities of fine, dry, dangerous and explosive coal dust to accumulate, remain, permeate and pervade the air, and wilfully and negligently omitted regularly and thoroughly to sprinkle said entries; that on said January 8, 1908, and for more than twenty days prior thereto, said Solomon Lawrence and McClellan 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 defendant; that on January 8, 1908, said Solomon Lawrence and McClellan 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 in 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; that because defendant negligently failed and omitted regularly to sprinkle said entries, that were so dry as aforesaid, said blasting powder when discharged ignited said coal dust, which exploded with great force and violence, and blew with great force and violence timbers, cars, slate and debris along said entries and said air courses, and filled all said entries and air courses with flames and fire; that said timbers, cars and slate struck 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. The first is, Has the widow of Solomon Lawrence the capacity to sue in her individual name under the provisions of the act of 1905, supra, or did the amendment of 1907, supra, so far embrace the subject of said 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? 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. Fort Wayne Iron, etc., Co. v. Parsell (1907), 168 Ind. 223, 79 N.E. 439; Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 73 N.E. 91; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 102 Am. St. 185, 69 N.E. 669; American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 67 N.E. 986; Hodges v. Standard Wheel Co. (1899), 152 Ind. 680, 52 N.E. 391; Hilliker v. Citizens St. R. Co. (1899), 152 Ind. 86, 52 N.E. 607; Harrison v. Stanton (1896), 146 Ind. 366, 45 N.E. 582; Porter v. State, ex rel. (1895), 141 Ind. 488, 40 N.E. 1061; Thornburg v. American Strawboard Co. (1895), 141 Ind. 443, 50 Am. St. 334, 40 N.E. 1062; Burns v. Grand Rapids, etc., R. Co. (1888), 113 Ind. 169, 15 N.E. 230; Wabash R. Co. v. Cregan (1899), 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 (1908), 170 Ind. 370, 83 N.E. 705; Thornburg v. American Strawboard Co., supra; Jackson v. Pittsburgh, etc., R. Co. (1895), 140 Ind. 241, 49 Am. St. 192, 39 N.E. 663; Burns v. Grand Rapids, etc., R. Co., supra; Mayhew v. Burns (1885), 103 Ind. 328, 2 N.E. 793; Stewart v. Terre Haute, etc., R. Co. (1885), 103 Ind. 44, 2 N.E. 208.
Also, that the general statute (§ 285 Burns 1908, Acts 1899 p. 405), giving a right of action to personal representatives for death by wrongful act, 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 Coal Co. v. Partenheimer (1900), 155 Ind. 100, 55 N.E. 751; Collins Coal Co. v. Hadley (1906), 38 Ind.App. 637, 75 N.E. 832. Boyd v. Brazil Block Coal Co. (1900), 25 Ind.App. 157.
By the act of 1905, supra, the regulations for mining coal, the manner of doing it and the means and appliances to be used, are prescribed in detail. Under § 11 of said act, the subject of ventilation is presented, and at the close of that section is the following provision: This act was the culmination of a series of acts upon the subject of the protection of the health and the safety of coal miners, beginning in 1879 (Acts 1879 p. 19), amended in 1881 (Acts 1881 p. 8), enlarged in 1885 (Acts 1885 p. 65), and 1891 (Acts 1891 p. 57), amended in 1897 (Acts 1897 p. 226 and p. 268), and in 1901 (Acts 1901 p. 540), and which have since been supplemented by the acts of 1907, supra, 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 has 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 § 8597 Burns 1908, Acts 1907 p. 253, reading as follows: "For any injury to person or persons or property occasioned by any violation of this act, or any wilful 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 § 8613 Burns 1908, Acts 1907 p. 347, § 12, it is provided that The contention of appellant is that the provisions of the act of 1907 (Acts 1907 p. 347) repealed the act of 1905 (Acts 1905 p. 65) on the subject of sprinkling mines, and reposes the subject wholly in the discretion of the inspector; that the failure to sprinkle can only be wilful and a violation of the statute after this discretion has been exercised, and notice has been given by the inspector; that under said act of 1907 no provision is made for action by the widow, unless the omission is wilful that it can only be a violation after the inspector has given notice, and that in this case no notice is alleged; that the legislature must have had some object and purpose in view in the use of the words in § 8597, supra, in "violation of this act, or any wilful 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...
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