Vandalia Coal Co. v. Lawson

• Decision Date: 29 January 1909
• Docket Number: 6,887
• Citation: Vandalia Coal Co. v. Lawson, 43 Ind.App. 226, 87 N.E. 47 (Ind. App. 1909)
• Parties: VANDALIA COAL COMPANY v. LAWSON ET AL
• Court: Indiana Appellate Court

87 N.E. 47

43 Ind.App. 226

VANDALIA COAL COMPANY v. LAWSON ET AL

No. 6,887

Court of Appeals of Indiana

January 29, 1909

From Clay Circuit Court; John M. Rawley, Judge.

Suit by the Vandalia Coal Company against Alexander Lawson and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Lamb Beasley & Sawyer, Barrett & Barrett, Samuel M McGregor, and Smith, Duncan, Hornbrook & Smith, for appellant.

George A. Knight, A. W. Knight, M. C. Hamill and John Hickey, for appellees.

OPINION

ROBY, J.

This is an appeal from the action of the lower court in sustaining appellees' joint demurrer to appellant's complaint. The complaint was a bill in equity against eighteen defendants, each of whom had brought an action at law against appellant to recover damages alleged to have been sustained by them respectively by reason of an explosion in appellant's coal mine. The bill prayed that all the cases be tried as one, for the reason that such action would avoid a multiplicity of actions at law and that an injunction issue against further proceedings in the actions at law.

The first paragraph of the complaint alleges that the plaintiff is a corporation engaged in the business of mining coal in Clay and Vigo counties, Indiana; that on and prior to December 5, 1906, it owned and operated the Rosebud mine in Vigo county, in which were employed more than one hundred men. The method of reaching and working the coal, the driving of entries and the ventilation of the mine is explained, and details are given tending to show the manner in which an explosion which occurred on December 5, 1906, was caused. It is alleged that the mine was a pick mine, worked by "blasting off the solid;" that the miners placed five shots in holes drilled more than five feet into the solid coal, which were put off on December 5, 1906, at the time when the miners were quitting their work and leaving for the day; that said shots so placed in the solid coal did not, by reason of that fact, expend their force in the coal, but the powder contained in said shots was blown out into the entries and rooms, burned and generated a gas, which, when mingled with the air, became highly explosive and dangerous; that said gas was ignited and exploded by other shots put off in said mine by the miners working therein immediately after putting off said "blown out" shots; that the explosion injured a number of miners then in the employ of this plaintiff and working in said mine; that each of the several defendants claims and asserts that he was injured and burned by reason of said explosion; that each has brought an action at law against this plaintiff, seeking to recover damages for the injuries claimed to have been sustained by reason of said explosion, and that each of said defendants claims and asserts in his complaint that said explosion and injuries were the result of negligence on the part of this plaintiff, in that this plaintiff had not regularly and thoroughly sprinkled the roadways of entryways in said mine for a period of many weeks prior to said explosion, by reason of which failure and neglect of duty upon the part of this plaintiff the roadways had become so dry that the air therein was charged with dust, rendering it dangerous and liable at any time to create what is known as a "dust explosion," and that a dust explosion took place in said mine and occasioned the injuries of the several defendants in this suit, as alleged in their several complaints against this plaintiff. It is averred in this suit that the explosion was not a dust explosion, but was brought about in the manner herein set out; that the plaintiff in noway neglected its duty; that the entries did not contain an accumulation of dust, and that the injuries alleged to have been sustained were wholly the result of the wrongful and negligent act of said several miners preparing and putting off said blown out shots; that the plaintiff is in nowise liable to the defendants on account of their alleged injuries; that the claim of each is based upon the same explosion, and that plaintiff will, upon the trial of this cause, fully maintain and establish all the facts herein alleged.

Following these allegations it is averred that separate actions against plaintiff have been brought, and are now pending in the Putnam Circuit Court, by Alexander Lawson, Tom Meeley, Elza Danhour, Lewis Smith, Samuel James, David Morgan, Thomas Travis, Lewis James, Riley Rinehart, Edward Haverkamp, Josef Kowandy, Karl Haverkamp, William Yemm, Samuel Darby and William Travis, and in the Clay Circuit court by George Ambrazatis, Emery Le May, Frank Giezk and Joseph Grizikowski. Plaintiff says that it believes the expense of litigating the several actions separately will aggregate more than $ 30,000, and be ruinous to it; that each of said several defendants is insolvent, and plaintiff will be wholly unable to recover any costs or expenses laid out and expended by it in the defense of said causes; that the trial of all the causes would consume a great amount of the courts' time, and subject the counties wherein the same are pending to an enormous amount of costs, and that time and costs can be saved by requiring all the matters, claims and grievances set up by all of said defendants in their respective complaints against this plaintiff to be set up, heard and determined in this suit. "Wherefore, plaintiff prays the court * * * that all said several defendants herein shall be required to appear in this court, and in this cause set forth their several and separate claims of right of action against this plaintiff, for and on account of the matters stated and alleged in their several and separate complaints in their several actions against this plaintiff, and asks that this court, sitting as a court of equity, hear and determine all said several matters in this cause." A temporary injunction restraining the defendants from taking any further proceedings in their several causes until this cause is heard and determined is asked, and upon final hearing it is prayed that an order and decree perpetually enjoining and restraining each of said defendants from further proceedings at law be issued.

The second paragraph of complaint differs from the first in that the following is inserted in the prayer thereof: "Or if the court believes that it would be unfair to said several defendants to deny them the right of trial by jury, that the court as a court of equity in the hearing and determination of this cause herein, determine the same as a court of equity, referring such matters involved herein to a jury for its advice, as the court in its judgment may deem proper and fair to all said several defendants."

The third paragraph contains the prayer: "Or if, in the opinion and judgment of the court, the several defendants herein should not be denied their right to have their separate and several actions tried by this court or jury as actions at law, then that this court proceed to hear and determine either by the court or a jury, if requested by the parties, all said several claims of said several defendants herein in this cause of action as one consolidated action in a court of law, and that all and singular the respective rights by and between this plaintiff and all said several defendants herein be determined in this proceeding."

Equity will not give relief because of a multiplicity of actions if the cases can be consolidated at law (Mayor, etc., v. Dean [1906], 124 Ga. 750, 53 S.E. 183; Peters v. Provost [1813], 1 Paine's C. C. 64; Lapeer County v. Hart [1857], Harr. [Mich.] *157; 2 High, Injunctions [3d ed.], § 62); hence the third paragraph, which prays that the eighteen cases pending in the Clay and Putnam Circuit Courts be consolidated and tried as one case at law, will be considered first. Statutes in this State enumerate causes of action which may or shall be joined (§§ 279-281 Burns 1908, §§ 278-280 R. S. 1881), and state who are proper parties to actions (§§ 251-278 Burns 1908, §§ 251-277 R. S. 1881). These statutes do not, nor is there any other which does, authorize the courts to consolidate cases; but it was said in Oldfather v. Zent (1894), 11 Ind.App. 430, 39 N.E. 221, that a court, independent of any statute, has the power to consolidate causes in proper cases. That case, which is relied upon by appellant, held that where an appellant in the Appellate Court, after the term at which the judgment appealed from was rendered, files his complaint for a new trial on account of new evidence discovered after the term at which judgment was rendered, to which a demurrer was sustained, from which decision an appeal is also prosecuted to the Appellate Court, the two causes may be consolidated, and it is not authority for the proposition that nondependent causes of action, instituted in different courts by separate plaintiffs, can be joined. Persons having separate causes of action against the same person cannot join as plaintiffs, Tate v. Ohio, etc., R. Co. (1858), 10 Ind. 174, 71 Am. Dec. 309; Shoemaker v. Board, etc., (1871), 36 Ind. 175; Heagy v. Black (1883), 90 Ind. 534; Jones v. Cardwell (1884), 98 Ind. 331; Martin v. Davis (1882), 82 Ind. 38; Elliott v. Pontius (1894), 136 Ind. 641, 652, 35 N.E. 562.

Where the plaintiffs sue jointly, the complaint must show a joint cause of action in favor of all the plaintiffs. If it does not, it is bad on demurrer. Doherty v Holiday (1894), 137 Ind. 282, 32 N.E. 315; Brunson v. Henry (1894), 140 Ind. 455, 39 N.E. 256; Indianapolis Nat. Gas Co. v. Spaugh (1897), 17 Ind.App. 683, 46 N.E. 691; Jones v. Rushville Nat. Bank (1894), 138 Ind. 87, 92, 37 N.E. 338. "Illustrative cases of consolidation," cited by appellant are cases decided in the United States court under § 921 R. S. U.S....