State, for Use of Lay v. Clymer
| Decision Date | 10 March 1943 |
| Citation | 182 S.W.2d 425,27 Tenn.App. 518 |
| Parties | STATE, for Use of LAY et al., v. CLYMER et al. (three cases). |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court October 16, 1943.
Appeal in Error from Circuit Court, Knox County; L. H. Carlock Judge.
Three separate actions by the State of Tennessee, for the use of William Foster Lay, John Bullard, administrator of the estate of Thomas Bullard, deceased, and Clarence William Hill against W. W. Clymer, District Mine Inspector, and Joseph Allison Welch, Chief Mine Inspector, and the sureties on their bonds, to recover for personal injuries sustained by Lay and Hill and for the alleged wrongful death of Thomas Bullard resulting from an explosion in a mine. Judgment for defendants, and plaintiffs appeal in error.
Affirmed as to defendant Welch and his surety and reversed and remanded as to defendant Clymer and his surety.
Jennings, O'Neil & Jarvis, of Knoxville for plaintiffs in error.
Ernest F. Smith, of Nashville, for Clymer and Welch.
Trabue, Hume, Davis & Gale, of Nashville, for Western Casualty & Surety Co.
Poore, Kramer & Overton, of Knoxville, for Fidelity & Casualty Co., of New York.
These are three separate actions brought by the state for the use of William Foster Lay, John Bullard, administrator of the estate of Thomas Bullard, deceased, and Clarence William Hill, against W. W. Clymer, District Mine Inspector, and Joseph Allison Welch, Chief Mine Inspector, and the sureties on their official bonds, to recover for personal injuries sustained by the said William Foster Lay and Clarence William Hill, and for the alleged wrongful death of Thomas Bullard, in an explosion in Peabody Mine No. 4, in Campbell County Tennessee, on May 4, 1940. All three cases grew out of the same explosion, and for convenience were tried before the same jury. At the close of the plaintiffs' proof a motion was made for a peremptory instruction in behalf of the defendants, which motion was denied and exceptions taken; the defendants then rested and introduced no proof in their behalf, but renewed their motion for a peremptory instruction, which was granted, and the plaintiffs' suits dismissed. The plaintiffs then seasonably filed their motions for a new trial, which motions were overruled and they have appealed in error to this court.
The declarations are in single count and are substantially identical in form. It was alleged that the plaintiffs William Foster Lay and Clarence William Hill were injured, and that Thomas Bullard was killed, by said explosion; that the explosion was caused 'from a combination of bad ventilation and accumulation of dust, and the general dilapidated condition of the mine, the lack of brattices, the lack of ventilating fans, the lack of an airway, and due to the presence of poisonous and noxious gases.'
It was alleged that the defendant Clymer was the District Mine Inspector of the district in which said mine was located, and the defendant Thomas Allison Welch was the Chief Mine Inspector, duly appointed and qualified as such in the manner required by the statute, and that the two surety company defendants were the sureties on their official bonds; that the condition of said bonds was that the said principals 'well and truly discharge the duties of the office or employment to which he (they) had been appointed.' The duties of said Clymer as District Mine Inspector, and Welch as Chief Mine Inspector, respectively, as fixed by the statutes, were set out at length and in detail, and it was alleged that they had breached the condition of their bonds in failing to inspect said mine at least once in every sixty days, and in failing to put notices at the entrance to said mine warning the workers of the unsafe condition thereof, and in failing to require the owners or operators of said mine to repair and place it in safe condition, all as required by the statutes which are referred to at length and in detail; and that but for their neglect of their duties in this regard said mine would not have become unsafe and dangerous for the workers therein and said explosion would not have occurred; and that under the statute referred to they and their sureties on their official bonds were liable to the plaintiffs for the injuries sustained by Lay and Hill and for the death of Bullard.
The defendants filed pleas of not guilty, nil debet and non assumpsit.
The statutory provisions with which we are here concerned are found in chapter 24 of Title 12 of the Code. Title 12 relates to the police powers, and chapter 24 of said title relates to the regulation and inspection of mines; there are 100 sections in this chapter, beginning with section 5539 and ending with section 5638, and all of said sections were enacted 'for the purpose of greater protection to the life and health of persons, employed in and around the mines,' etc. The pertinent sections are referred to in the declaration and will be referred to herein as we deem necessary.
Section 5539 provides that the governor shall appoint one chief mine inspector 'who, with the approval of the governor, shall appoint district mine inspectors.'
Section 5544 provides that the chief mine inspector and the district inspectors shall give bonds, to be approved by the governor, conditioned 'that they will faithfully discharge the duties of their offices'; and make oath that they will faithfully and impartially discharge the duties of their respective offices, etc.
Section 5547 makes it the duty of the district inspectors 'throughly and carefully to examine and inspect each mine in their respective districts * * * and see that every provision of this chapter is strictly observed, by the owner, agent and employee.'
Section 5549 provides that the (district) inspectors shall make an accurate report of the mines inspected, setting out the details of their inspection and forward said reports to the chief mine inspector, monthly.
Section 5550 requires the chief mine inspector to make a complete record of such inspections and include them in his annual report to the governor.
Sections 5551 and 5552 require the district inspectors immediately to 'notify the chief inspector, the owner, agent, or superintendent of any mine found to be in a dangerous condition,' etc., and 'on receipt of same, the chief inspector shall make a thorough personal examination of the mines at the earliest practicable time,' etc.; and if the chief inspector then finds 'dangerous conditions to exist in the mines, he shall notify the employees of the mine by posting notice near the entrance to the mine * * * and also notify the operator, agent, foreman, or superintendent of such mine as to the dangerous conditions found in the mine.'
Section 5553 provides that if deemed necessary the chief inspector shall apply to a court of equity for an injunction, etc.
Section 5554 provides that if the said chief or district inspector in examining said mines find them to be unsafe or dangerous, 'or in their opinion to threaten or tend to the bodily injury of any person,' then they shall notify such person, and shall notify the owner or operator of the same to rectify such dangerous conditions.
Section 5555 makes it the duty of the chief inspector to bring suits when necessary to enforce the observance of the provisions of these statutes.
By section 5558 the chief inspector is authorized Section 5559 makes it the duty of the chief inspector to render such assistance to the district inspectors as the circumstances may require, and to make such personal inspections as he may deem necessary, etc.
Other sections relate to keeping of records, the classification of the various types of mines, and when and how they shall be inspected. Class B mines, such as Peabody No. 4, are those that are liable to dust explosions, and are required to be examined every sixty days or oftener. Sec. 5569.
There was evidence to show the following facts, from which it is very earnestly argued that the trial judge erred in granting the peremptory instruction in favor of the defendants:
(1) That the Peabody No. 4 mine in which the explosion occurred was in bad condition, that it was dusty, poorly ventilated, and in bad condition generally; and that Jeff Gothard, the mine foreman, quit his job there in November, 1939, on account of the unsafe condition of the mine, and notified the operators that this was the reason he was leaving.
(2) That the explosion was caused by the accumulation of dust, the lack of ventilation and bad air in the working places in the mine.
(3) That the plaintiffs were miners working in the mines and therefore entitled to the protection of the laws relating to the inspection and regulation of mines.
(4) That Clymer, the district inspector, had made no inspection of this mine for many months, and certainly not within the sixty day period immediately preceding the date of the explosion. The finding upon this feature of the case is based upon the testimony of witnesses who worked in and about the mine and who said they had not seen him there, and of one witness, Gothard, who rode down the hill with him from the Log Mountain mine and called his attention to the bad condition of the No. 4 mine, to which Clymer replied that he had a good man up there and would have it straightened up. It is insisted by the defendants that this is evidence of a purely negative character, and was not positive proof that he did not inspect the mine within the sixty day period; but we think it was evidence sufficient to have...
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...to operate under workers' compensation and two of its foremen. In yet another case cited by the Reporter, State for use of Lay v. Clymer, 27 Tenn.App. 518, 182 S.W.2d 425 (1943), plaintiffs alleged that a district mine inspector and a chief mine inspector employed by the state had failed to......
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