Price v. Clover Leaf Coal Mining Co. ( 1914 )

Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Appeal and error, § 800*—when ruling on motion to require electioñ of count in declaration not saved for review. A ruling of the court on a motion to require plaintiff to elect on which count of the declaration he would ask recovery is not saved for review where neither the motion, the ruling of the court nor any exception thereto are preserved in the bill of exceptions. 4. Appeal and error, § 565*—necessity of exceptions to save ruling on motions made preliminary to trial. Section 81 of the Practice Act, J. & A. If 8618, providing that a formal exception is not necessary to save for review rulings on questions during the progress of the trial, has no application to motions made preliminary to the trial, such as motions for a continuance or motions to require plaintiff to elect on which count in the declaration he will ask recovery. 5. Appeal and error, § 800*—when rulings on motion must be preserved by bill of exceptions. Rulings on motions preliminary to a trial, which are not a part of a common-law record, must be preserved by a bill of exceptions. 6. Pleadings, § 58*—when plaintiff not required to elect between counts. Denial of a motion to require plaintiff to elect on which count in the declaration he will ask recovery, held not error where all the counts are based on the same state of facts. 7. Action, § 41*—when not a misjoiner of causes of action. There is no misjoinder of causes of action in several counts of the declaration where all the counts are based on the same state of facts. 8. Action, § 44*—when plaintiff not required to bring separate actions. Where a defendant is liable to plaintiff for personal injuries in an action at law either under section 21 of the Miners’ Act, J. & A. If 7495, or in an action at law as modified by other provisions of the statute, the plaintiff should not be required to bring separate actions based on the same facts. 9. Workmen’s Compensation Act, § 5*—when count in declarar tion ,based on Workmen’s Compensation Act defective. A count in a declaration to recover for personal injuries which pleads the Compensation Act of 1911, J. & A. fjf 5449 et seq., and avers simply that plaintiff was injured in the course of his employment without averring the failure to perform any duty which defendant owed to plaintiff, or any negligence or carelessness on the part of the defendant, held not to be a good count where the defendant had elected not to come under the act. 10. Workmen’s Compensation Act, § 2^*—Workmen’s Compensar tion Act construed. Sections 3 and 10 of the Workmen’s Compensation Act of 1911, J. & A. 5451, 5459, apply only to cases where both parties have accepted the provisions of the act. 11. Workmen’s Compensation Act, § 2*—right of employee to recover under Workmen’s Compensation Act where employer refused to accept provisions of act. Where an employer has refused to accept the provisions of the Workmen’s Compensation Act of 1911, he thereby waives his defenses of assumed risk, fellow-servant and contributory negligence, and an employee who has not refused to accept its provisions may maintain an action against his employer for injuries received by him freed from said defense, if it is averred that the injuries were caused by the negligence of the employer and the evidence sustains the declaration subject only to the provision that contributory negligence shall be considered in reducing the amount of damages. 12. Mines and minerals, § 182*—when question relating to examination of mine is for jury. In an action to recover for injuries sustained by a miner from the fall of a stone from the roof of the mine, where it was alleged that the mine examiner failed to mark the dangerous condition of the roof, held, under the evidence it was a question for the jury whether the examination was of the kind contemplated by statute and whether' the roof at that time was safe or was in fact dangerous. 13. Mines and minerals, § 187*—when instruction based on counts in declaration erroneous. In an action to recover for personal injuries received by plaintiff in defendant’s mine, an instruction telling the jury that if they find that the evidence bearing on plaintiff’s case, as alleged in his declaration or in either count thereof, preponderates in his favor although but slightly it will be sufficient to warrant a finding for plaintiff, held erroneous where one of the counts was defective in failing to aver any negligence. 14. Workmen’s Compensation Act, § 2*—when instruction stating language of Compensation Act misleading. An instruction stating the provisions of section 1 of the Workmen’s Compensation Act, J. & A. 1f 5449, held misleading in so far as it states that part of the section preceding the portion which states the penalties imposed for refusal of employer to accept the provisions of the act. 15. Mines and minerals, § 189^*—when instruction in language of Miners’ Act not misleading. The giving of an instruction in the language of paragraph “b” of section 21 of the Miners’ Act, J. & A. ^ 7495, held not misleading though parts of it had no application to the case.