Zeller, McClellan & Co. v. Vinardi
| Decision Date | 01 July 1908 |
| Docket Number | No. 6,211.,6,211. |
| Court | Indiana Appellate Court |
| Parties | ZELLER, McCLELLAN & CO. v. VINARDI. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vermillion County; Gould G. Rheuby, Judge.
Action by Joseph Vinardi against Zeller, McClellan & Co. From a judgment for plaintiff, defendant appeals. Reversed.
Elmer E. Stevenson and Edward H. Knight, for appellant. S. D. Puett, J. S. McFaddin, B. S. Aikman, and H. B. Aikman, for appellee.
The appellee brought this action against the appellant to recover damages for a personal injury. A demurrer to each paragraph of the complaint for want of sufficient facts was overruled. Afterward the first paragraph of the complaint was amended, and there was no demurrer to the amended paragraph. The appellant has assigned as errors the rulings upon demurrer to each paragraph of the complaint. The assignments relating to the demurrer are unavailing as to the first paragraph, it having been amended afterward; but the appellant has also assigned that the appellee's complaint does not state facts sufficient to constitute a cause of action. The appellant therefore has presented by the assignment of errors the question whether the second paragraph is sufficient on demurrer, and the question whether both paragraphs are insufficient after verdict. In the first paragraph, in subtance, it was alleged: That the appellant was a corporation organized under the laws of this state and engaged in the business of mining and selling coal; that on August 30, 1905, it was the owner and engaged in the operation of a coal mine in Southern Park county, Ind., known as Superior Mine No. 2; and that this mine at that time had an entry leading from the shaft in a northerly direction, known as the “Main Entry North.” The complaint also minutely describes the entry ways and their purposes and for what used, as also the air passageways, and further alleges that on August 30, 1905, the appellee was in the employ of the appellant, working for it in one of said passageways for air, keeping the same clear and open to the required depth for use in the mine; that while thus engaged in the mine, and at a point about 25 yards from the entrance to said passageway, and without notice or warning to him or without any fault or negligence on his part, a large block of loose slate or rock, weighing several tons, fell from the roof of said passageway onto and injuring him, describing his injuries. It is also shown that the roof in the passageway at the point where the slate or rock fell was improperly braced, and that appellant had carelessly and negligently failed to brace the same stating wherein such failure occurred, and by reason of such failure to brace said roof said rock fell, and alleging damages. It is pointed out by both parties that the second paragraph differs from the first only in that, instead of alleging, as in the first paragraph, that the injury occurred at a place where the appellee was at work, it was stated that in going to and from his work at the face of the coal in said passageway for air, wherein he was working, it was the usual and proper way, and the only way to pass along said passageway from the face of the coal to the main passageway for air and thence to the shaft of the mine; that on said day, while passing along said passageway in the performance of his duties in said mine for appellant, when at a point in said way, about 25 yards from the main way for air or entrance to such air course, without notice or warning, and without any fault or negligence on his part, a large block of loose slate fell from the roof of said passageway, etc.
It appears to have been intended to proceed under Acts of 1905, p. 65, c. 50 (section 8569 et seq., Burns' Ann. St. 1908), which purports by its title as well as by its provisions to be “an act to revise the laws in relation to coal mines,” etc. By the last section of the act all laws or parts of laws conflicting with the provisions of this act are repealed. In section 11 of the act it is provided: “The operator shall employ a competent mine boss, who shall be an experienced coal miner, and shall keep careful watch over the ventilating apparatus and the airways, and shall see that, as the miners advance their excavations, all loose coal, slate and rock overhead are taken down or carefully secured against falling therein on the traveling and air ways,” etc. In section 12 it is provided: etc. It is contended that each paragraph of the complaint is insufficient, whether regarded as a complaint under this act or considered as a complaint at common law. Upon the trial, the cause was treated by the court and by counsel as an action under the statute, and the appellee cannot be heard to claim that his pleading was sufficient upon a theory wholly different from that upon which his judgment was recovered. In instructions to the jury asked by appellee, to which the appellant excepted, and which were assigned as reasons in the appellant's motion for a new trial, the overruling of which is assigned as error, express reference to the statute was made. The case was submitted to the jury as one arising under the statute. “Where a pleading is susceptible of being construed upon various consistent theories, or the predominating theory is dubious or uncertain, the theory adopted by the trial court, and upon which the cause proceeded and was tried, should be followed by this court.” Cleveland, etc., R. Co. v. De Bolt, 10 Ind. App. 174, 176, 37 N. E. 737, 738. Where it appears, upon an examination of the record, that the trial court, in its instructions and in its rulings throughout the trial, treated the complaint as based upon ...
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