Collins Coal Co. v. Hadley , 38 Ind. App. 637 ( 1905 )

Wiley, C. J.

Appellee brought this action to recover damages resulting from the death of the decedent caused by the alleged negligent acts of appellant. The complaint is in a single paragraph, to which a demurrer for want of facts was overruled. Answer in general denial. Trial by jury, resulting in a general verdict for appellee. Appellant’s motion for a new trial overruled, and judgment upon the verdict.

By the assignment of errors, appellant is entitled to have considered the action of the court in overruling the demurrer to the complaint and its motion for a new trial.

The complaint alleges that the appellee was the duly appointed, qualified and acting administratrix of the estate of the decedent; that appellant was a corporation existing under the laws of Indiana, and engaged in mining and shipping coal; that appellant was the owner of a certain coal mine in Olay county, Indiana, and was engaged in working and operating the same; that the coal was reached and worked by means of a shaft sunk from the surface of the earth, and by driving ^ entries through the same, and turning workrooms off from said entries; that on January 5, 1903, appellant had working in said mine 100 men; that the decedent was in its employ as a coal miner, and was engaged in mining coal in one of the rooms in said mine; that it was the duty of appellant to use reasonable care to furnish the deceased with a reasonably safe place to work, and to protect him therein, and to that end it-was the duty of appellant to keep constantly on hand at its said mine a sufficient supply of timbers, and to deliver at the working place all props, caps, and timbers, so that decedent might be able properly to secure his room from caving in; that it was the further duty of appellant’s bank boss to visit and examine each and every working place in the mine at least every alternate day when the miners were at work, and to examine and see that each and every working place was properly secured by props or timbers, and that safety was in all respects assured, and to see that a sufficient supply of props, caps, and timbers was always on hand at decedent’s said room or working place, in order that the same might be propped and made secure and safe; that it was the further duty of appellant to place a blackboard, sufficiently large, with the number thereon of every workman employed in the mine, at the most convenient place near the entries, to be used by the workmen in registering thereon such timber as might be required from day to day to make secure their working places.

It is further averred that appellant did not perform its duty in the particulars set forth, but wholly failed and neglected so to do in this, to wit, that it did not keep constantly on hand a sufficient supply of timber of proper length, and deliver to said working place of decedent props, caps, and timbers of proper length when needed and required by decedent, so that he might properly secure said room and working place from caving in; but, on the contrary, it negligently and carelessly refused and neglected to deliver the necessary caps, props and timbers, although requested often by him so to do. It is next alleged that appellant carelessly failed, by its bank boss, to visit and examine the working place at least every alternate day, to see that the same was properly secured by props, etc., and that safety to the miners was in all respects assured, and to see that a sufficient supply of props, etc., was always on hand; that, on the contrary, it did not, by its said bank boss, visit said working place more than once a week, and negligently and carelessly permitted the same to remain without props, caps, and timbers, so that by reason thereof the decedent was unable properly to prop and secure tbe room and working place in which he was engaged.

It is further averred that appellant negligently and carelessly failed to have and place a blackboard of any kind or character at the most convenient place near the mine entries, whereon the workmen could register their wants for timbers, and that decedent was compelled orally to make such requisition for said timbers that he needed or required; that by reason of such failures, all of which were well known to appellant, or might have been by the use of reasonable diligence, said roof of the room in which decedent was working suddenly gave way, caved in, and fell upon him, thereby inflicting injuries which re-.suited in his death; that decedent’s death occurred wholly by the fault and negligence of the appellant, as herein alleged, and while the decedent was in the exercise of due care and caution, and without any fault or negligence on his part, or the part of appellee.

It is then averred that prior to said accident there was nothing in the appearance of said roof to indicate immediate danger, and no evidence thereof was discoverable by the usual and ordinary tests, which had been made from time to time, and that said roof could and would have been made perfectly safe by decedent but for the negligence of appellant, as herein alleged. It is then alleged that if appellant had performed its duty and had, by its bank boss, visited said working place of decedent, and had seen that safety - was in all respects assured, and that timber, props, and caps were always on hand when needed and required, said injury would not have occurred; that had appellant furnished the decedent with timber, caps, and props, as was'its duty, decedent could and would have propped and secured the roof so that the same would not have caved in and fallen upon him. It is then averred that the decedent left surviving him the appellee, who is his widow, and two minor children, and that this action is prosecuted for their benefit.

1. The first question discussed by counsel is the sufficiency of the complaint, and it is most earnestly contended that it is apparent upon the face of the complaint that the appellee, as administratrix, cannot maintain this action. Appellee bases her right of action upon the failure of appellant to perform certain duties specifically enjoined upon it by statute. This statute, commonly known as the “mining act,” requires a mine operator, where more than ten men are employed, to keep on hand constantly a sufficient supply of props, caps and timbers, so that workmen may at all times properly secure the roofs of the mining rooms from caving in; also that the mining boss shall visit and examine each working place in the mine at least every alternate day to see that such places are securély propped and safe for workmen, and to see that a sufficient supply of props, caps, and timbers is on hands, etc. And it further requires that such operator, etc., shall have and place a blackboard at the most convenient place near the mine entrance, upon which workmen may register requests for such timber as may be required to secure their working places. §§7466, 7472 Burns 1901, Acts 1893, p. 147, Acts 1897, p. 168, §4. The complaint charges in definite terms the violation on the part of appellant of all these four requirements of the statute, and if appellee, as administratrix, can maintain the action, the complaint is not subject to a successful attack of the demurrer.

2. Section thirteen of the act of June 3, 1891 (Acts 1891, p. 57, §7473 Burns 1901), is as follows: “That for any injury to person or persons or property occasioned by any violation of this act, or any wilful failure to comply with any of its provisions, a right of action against the owner, operator, agent or lessee shall accrue to the party injured for the direct injury sustained thereby, and in case of loss of life by reason of such violation, a right of action shall accrue to the widow, children, or adopted children, or to the parents or parent, or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed, for like recovery for damages for the injury sustained by reason of such loss of life or lives.” This statute, in case of death of an employe in a coal mine, vests the right of action in the surviving widow or children of the decedent, and not in his administrator or administratrix, and it has been held both by the Supreme Court and this Court that a personal representative of the decedent cannot maintain the action.

Maule Coal Co. v. Partenheimer (1900), 155 Ind. 100, and authorities there cited. See, also, Boyd v. Brazil Block Coal Co. (1900), 25 Ind. App. 157; L. T. Dickason Coal Co. v. Unverferth (1903), 30 Ind. App. 546.

The case of Couchman v. Prather (1904), 162 Ind. 250, is instructive here. There, appellant, as administrator, brought an action against a saloon-keeper and his bondsmen for a violation of the liquor law prohibiting sales of liquor to a person in an intoxicated state, and the complaint alleged such sales, and that, as a result thereof, the decedent became so intoxicated as to be unconscious of his condition, and while in that condition attempted to drive in a buggy to his home, and while so doing he fell out of the buggy, breaking his neck, etc.

Section 7288 Burns 1901, §5223 E. S. 1881, provides: “Every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act shall be personally liable, and also liable on his bond filed in the auditor’s office, * * * to any person who shall sustain any injury or damage to his person or property or means of support on account of the use of such intoxicating liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.”

3. It was urged by appellant in that case that the action was prosecuted under §285 Burns 1901, Acts 1899, p. 405, ■which confers upon the personal representative of a decedent, whose death was caused hy the wrongful act or omission of another, to prosecute an action to recover damages for causing such death. In deciding the case the Supreme Court used the following language: “A statute giving a remedy which did not exist at common law, not only speaks affirmatively, but it also speaks negatively. In such circumstances the maxim expressio unius est ex-clusio alterius has a particular application. Sutherland, Stat. Constr., §325. So far as a remedy by way of damages is concerned, the rule is that when a new right is conferred hy statute, and an adequate provision for its enforcement is therein made, the statutory remedy is exclusive. Storms v. Stevens [1885], 104 Ind. 46; Sedgwick, Stat. and Const. Law, 94; Endlich, Interp. of Stat., §465; Sutherland, Stat. Constr., §399.”

In Storms v. Stevens, supra, it was said: “Where a statute creates a new right and prescribes a mode of enforcing it, that mode must be pursued to the exclusion of all other remedies. Such has been the settled law in this State for more than sixty years, and such is the law elsewhere.”

In Couchman v. Prather, supra, it was said: “Complications would arise from the holding that, in the circumstances of a case like this, suit could he maintained under §285, supra. It would result in the action’s being instituted and controlled hy a statutory trustee, instead of hy the person injured in his means of support, in his individual capacity, as contemplated hy §1288, supra.” In this State it is no longer a question of legitimate debate that where a special statute gives a right of action to a designated class or classes of persons, they, and they alone, can maintain such action.

4. The demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action properly questions the right of the plaintiff therein to maintain such action. Boyd v. Brazil Block Coal Co., supra.

5. Counsel for appellee seek to avoid the rule established by the eases cited, upon the ground that §285, supra, repeals §7473, supra, “as to the person who sháll bring the action.”. Without entering into a discussion of the question thus raised, we are clearly of the opinion that the position assumed by counsel is not tenable. As the personal representative of the decedent in this case has no right under the statute to prosecute the action, the demurrer to the complaint should have been sustained.

The judgment is reversed, with directions to the trial court to sustain appellant’s demurrer to the complaint.