Timson v. Manufacturers' Coal & Coke Co.

• Decision Date: 22 May 1909
• Citation: 220 Mo. 580,119 S.W. 565
• Parties: TIMSON v. MANUFACTURERS' COAL & COKE CO.
• Court: Missouri Supreme Court

119 S.W. 565

220 Mo. 580

TIMSON v. MANUFACTURERS' COAL & COKE CO.

Supreme Court of Missouri.

May 22, 1909.

1. MASTER AND SERVANT (§ 264) — INJURY ACTIONS — ADMISSIBILITY OF EVIDENCE — CONFORMITY WITH PLEADINGS.

In a miner's action for injuries caused by falling rock, defendant coal company could not show, under a general denial and a plea of assumption of risk, that its business was dominated by the miners' union of which plaintiff was a member, and that it virtually compelled the employment of plaintiff as well as other miners employed by defendant.

2. CONTRACTS (§ 338) — ACTIONS — ANSWER — AFFIRMATIVE DEFENSES — DURESS.

Duress is an affirmative defense when relied on to defeat a contract, and must be specially pleaded.

3. STATUTES (§ 231) — CONSTRUCTION — REVISION — CONSTRUCTION OF LAWS BROUGHT INTO CODE.

Act April 9, 1895 (Laws 1895, pp. 228, 229), relating to the operation of mines, embraced six sections, numbered 7064 and 7064a to 7064e, inclusive, which were carried into chapter 133, Rev. St. 1899, as sections 8801-8806, inclusive (Ann. St. 1906, pp. 4083-4085). Four of the six sections referred to coal mines in terms, section 8806 making every operator of any coal mine operating five or more men, who violated the provisions of sections 8801-8805, inclusive, guilty of a misdemeanor, but section 8802 merely provided that all mines generating gas shall be examined every morning to determine whether there were any dangerous accumulations of gas, etc. Held that, as neither article in chapter 133 was brought into the Revised Statutes by a revised bill, section 8802 must be construed in connection with the sections of which it formed a part when enacted, in order to determine the legislative intent; and, even if it had been brought in by a revised bill, under section 4189 (page 2269), providing that the provisions of the Revised Statutes, so far as they are the same as prior laws, shall be construed as a continuation of such laws, and not as new laws, those sections would remain separate laws.

4. MASTER AND SERVANT (§ 124) — INJURY TO SERVANT — STATUTORY PROVISIONS — INSPECTION OF MINES.

Rev. St. 1899, § 8802 (Ann. St. 1906, p. 4084), requiring inspection of mines, construed in connection with the sections of which it was a part when enacted, referred exclusively to coal mines, and the words therein, "all mines generating gas," recognized that there were some coal mines not "generating gas," meaning gas of such kind, and in such quantity, as to imperil life, so that, in a miner's action for injuries caused by a violation of that section, it must appear that the mine in question was one generating gas.

5. EVIDENCE (§ 9*) — JUDICIAL NOTICE — SCIENTIFIC FACTS — COAL MINE GAS.

Where statutes under which an action was brought recognized that there were some coal mines not generating gas, the court could not take judicial notice that all coal mines generated gas.

6. EVIDENCE (§ 5) — JUDICIAL NOTICE — MATTERS OF COMMON KNOWLEDGE.

Courts may take judicial notice of matters commonly known to all persons of ordinary intelligence, but not of facts merely because they may be ascertained by reference to publications, or which the court cannot know without resorting to expert testimony or other proof.

7. EVIDENCE (§ 9) — JUDICIAL NOTICE — SCIENTIFIC FACTS.

Courts may take judicial notice of scientific facts which universal experience has made common knowledge.

8. EVIDENCE (§ 4) — JUDICIAL NOTICE — GROUNDS — UNIVERSAL NOTORIETY.

The judicial recognition of facts without proof should be exercised with caution, and care taken that the requisite notoriety exists, and every reasonable doubt as to whether sufficient notoriety exists should be resolved in the negative.

9. EVIDENCE (§ 52) — JUDICIAL NOTICE — NATURE.

Judicial notice is merely a rule of evidence; and, if facts judicially noticed are disputable, the other party may rebut them.

10. EVIDENCE (§ 9) — JUDICIAL NOTICE — SCIENTIFIC FACTS — GENERATION OF MINE GAS.

Since the question of whether a coal mine generates injurious gas depends upon various circumstances and local conditions, the court could not take judicial notice that all coal mines generate deleterious gas; it not being a matter of common knowledge.

Valliant, C. J., dissenting, and Woodson and Lamm, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

Action by Jane Timson against the Manufacturers' Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

William Frank, Higbee & Mills, and Whiteside & Yant, for appellant. Campbell & Ellison and Percy Werner, for appellee.

GRAVES, J.

Plaintiff is the widow of George Timson, deceased, who was a coal miner in the employ of defendant in its coal mine at or near Connelsville, Mo. In this mine were employed a large number of men. Deceased came to his death by a rock falling from the roof of the mine upon him. The date of the accident was July 19, 1905. The petition was in two counts, the first being bottomed upon sections 8802, 8820, Rev. St. 1899 (Ann. St. 1906, pp. 4084, 4096) and the second under sections 2865, 2866, Rev. St. 1899 (Ann. St. 1906, pp. 1644, 1646). The second count need not be considered here, as the recovery was had under the first count. Section 8802 is the foundation of the action in the first count, and, following the tenor of the statute, the petition charges "that it became and was the duty of the defendant to have said mine examined every morning by a practical and duly authorized agent of defendant, to determine whether there were any obstructions to roadways and entries, or any other dangerous conditions, in said mine, and not to permit any one to enter said mine until the examiner should report all the conditions safe for beginning work," and then in appropriate language avers a failure upon the part of the defendant to perform the duty thus required by the statute, and that by such neglect of duty the deceased came to his death, and prayed for damages in the sum of $10,000. The answer was a general denial, to which was coupled a plea of assumption of risk. The petition does not aver that the coal mine in question was a mine in which gas was generated, but said first count is a clear attempt to state a cause of action under the statute, supra. For the purpose of this opinion, in the view we take of the law, full details of the evidence is not required. Verdict and judgment was for plaintiff in the sum of $7,000, and from this judgment, after a timely but futile motion for a new trial, the defendant appealed. Plaintiff offered no proof of the fact that the mine in question generated gas. Otherwise the proof offered by plaintiff tended to show a failure upon the part of the defendant to perform the duties required of it by this statute, and that the death of the deceased was occasioned by such failure. It will not be necessary to avert to defendant's evidence further than it bears upon disputed questions of law here. This evidence will be noted in the course of the opinion when discussing such disputed questions.

1. Upon the cross-examination of some of the witnesses for the plaintiff the defendant sought to elicit the fact that the miner's union, of which deceased was a member, dominated the business of the defendant in the employment of men to operate its mine. The plaintiff objected to the introduction of this evidence upon the ground that no such issue was tendered by the pleadings, and this objection was by the court sustained. After this defendant offered to prove that said miners' union of which deceased was a member dictated to defendant whom it should employ, and whom it should not employ; what wages it should pay; what hours the men should work; that without the consent of such miners' union the defendant did not dare to discharge an employé or employ a man; that the men (including deceased) in the mine of defendant were virtually employed by this union of which deceased was a member, and for that reason deceased was not, in law or fact, in the employ of defendant when killed. This offer of proof was rejected for the same reason by the court, and all this is urged as error by defendant. Under the pleadings there was no error in this action of the court. If it was the purpose of the defendant to show that by some species of duress it had been forced to employ the deceased, and that the deceased individually, or by and through his fellow members of the miners' union, had coerced his employment, then this question should have been raised by appropriate pleading. If the employment was not made by the defendant voluntarily, but by duress, and the defendant seeks to avail itself of such matter, it should have raised it upon proper plea. A general denial is not sufficient to raise this kind of an issue. Duress, when relied upon to defeat a contract, is an affirmative defense, and must be specially pleaded. 7 Ency. Plead. & Prac. 247; Pomeroy's Code Pleading (4th Ed.) 990; Chitty on Pleadings (16th Ed.) § 511; Richardson v. Hittle, 31 Ind. 119; Ins. Co. v. McCormick, 45 Cal. 580; Lord v. Lindsay, 18 Hun (N. Y.) 484. So, too, we take it that, if the defendant relies upon the fact that the relationship of master and servant had been created by duress, the same rule of pleading would apply. As to whether or not this pleading and this proof would be a proper defense to the action, we are not now called upon to determine. It is sufficient to say that in the present shape of the pleadings there can be no question as to the correctness of the ruling. The other exceedingly interesting question we reserve for a time when it becomes a live issue in a concrete case.

2. By questions to witnesses, and otherwise in the course of the trial, the defendant tried to prove that the mine in question did not, as a matter of fact, generate gas. This evidence was rejected by the trial court on the ground that the court would take judicial notice...