Gallagher v. Silver Brook Coal Co.

Opinion by

Kepiiart, J.,

The plaintiffs brought suit on August 17, 1908, to recover from the defendant company for coal they had mined for it prior to May, 1902. With other pleas, that of the statute of limitations was filed, and on the trial the court on motion of defendant, entered a compulsory nonsuit, which it subsequently refused to lift.

Several questions of law and fact were involved at the trial, but the court’s entry of judgment of nonsuit is largely based on the construction placed on the evidence in regard to the statute of limitations. It is urged that Section 7 of the Act of April 25, 1850, P. L. 570, which is as follows : “The provisions of the act passed the 27th of March, 1713, entitled 'An Act for the Limitations of Actions’ shall not hereafter extend to any suit against any corporation or body politic which may have suspended business, or made any transfer or assignment in trust for creditors, or who may have at the time and after the accruing of the cause of action, in any manner ceased from or suspended the ordinary business for which said corporation was created” prevents the use of the plea of the statute of limitations, as it is directly shown by the record that while the coal was all mined by the plaintiffs prior to May, 1902, the defendants ceased all operations, at the colliery where the plaintiffs performed their labor, in 1906, at which, time the statute was not a bar, and by the terms of the act it could not be successfully pleaded in this case.

Standing alone this act would prevent a recovery, but its efficacy as such bar is entirely overthrown by Section 21, of Article III, of the Constitution of 1874, which declares as follows, inter alia, “No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.”

This section was under consideration by the Supreme Court in Re Grape Street, 103 Pa. 121, decided in 1883, in which it is said: “An attempt has been made to limit the effect of this provision by confining it to such suits or actions as are mentioned in the limitation act of March 27, 1713. But for this there is no warrant. It will be seen by consulting the first part of the section cited, that it is general; operative alike on natural and artificial persons, and the second is evidently designed to accord with the first; the intention is to prevent discriminations between these two classes of persons, and to put them on an equality in courts of justice. So, to prevent mistake, this, like the previous part of the section, uses language that is as general and all-embracing as possible. There are to be no limitations of time, in suits against corporations, for injuries to persons or property, or for ‘other causes,’ different from those which govern suits of private persons.” This interpretation has been adopted as the proper one by the courts since that time, and upheld in Seipel v. Cumberland Val., Etc., Railroad Co., 129 Pa. 425; Grugan v. Philadelphia, 158 Pa. 337; Bachman v. Philadelphia & Reading Railroad, 185 Pa. 95; Butler St., 25 Pa. Superior Ct. 357.

The appellant urges that the force of the Act of 1850 is preserved by virtue of the second section of the schedule to the Constitution, viz: “All laws in force in this Commonwealth at the time of the adoption of this Constitution not inconsistent therewith, and all right, actions, prosecutions and contracts shall continue as if this Constitution had not been adopted.” The manifest purpose of the constitutional provision was to avoid discrimination between corporations and individuals and against corporations so far as statutes of limitations were concerned. The conclusion reached by the trial judge on this branch of the case was fully sustained by the authorities cited.

‘ The other question raised is: When did the statute of limitations begin to run in this case? Such statutes are universally regarded with favor as statutes of repose, and are to be liberally construed with reference to their object and purpose. It begins to run from the time when the plaintiffs’ cause of action accrues, and the difficulty in such a case as is here presented lies in determining when the cause of action is to be deemed as having accrued.

The right of action on a claim depending on a con-tingency or condition, does not accrue until the happening of the contingency or the fulfillment of the conditions, and the statute does not begin to run until then. Where, however, it is the right or duty of the claimant to comply with certain conditions in order to render his right of action absolute, or where the performance of the condition is within his power, such performance must be accomplished within a reasonable time and the statute will begin to run, not from the time of actual performance, but from the time when it was reasonably practicable: 19 A. & Eng. of L., Line of Actions; Cook v. Carpenter, 212 Pa. 165. And whether a claim is barred by a statute of limitations applicable to it, is or-' dinarily for the jury, upon the evidence under instructions from the court: Seipel v. Cumberland Val., Etc., Railroad, 129 Pa. 425; Van Horn v. Scott, 28 Pa. 316; 25 Cyc. 1079.

In Tonkin v. Baum, 114 Pa. 414, it is stated: The contract as proved was a conditional one. The defendant was to pay when he sold the timber and got the money. The timber was settled for on June 4, 1880, until that time the plaintiff could not have sued upon the promise: 27 Cyc. 1082, 1274.

The plaintiffs were practical-coal miners and made a contract to mine coal and load it on cars to be furnished by the defendant in its mine, at a stipulated price for mining the coal, and' an additional price for loading it on the cars. It does not clearly appear when they began work, but it is shown that they stopped working in the fall of 1901, on account of the flooded condition of the property, at which time there was in the mine about 2,500 car loads of coal which they had mined, but they were prevented from loading because no cars were furnished by the defendant. The situation remained unchanged until in 1906, when all work was suspended, and the breaker, trestles and rails were removed by the defendant company. That the plaintiffs had a right of action independent of whether or not the coal was loaded on the cars, is evidenced by the fact that a fixed price was made for the coal cut and an additional price for coal loaded. It was not necessary for plaintiffs to await defendant’s convenience as to furnishing cars or putting the mine in condition to run before they could demand payment for the coal cut.

Plaintiffs’ right to demand payment arose within a reasonable time after the coal had been cut. Such reasonable time would be fixed by the time they customarily received pay for their labor in the mines. When the first pay day passed after any certain quantity of coal had been cut and no payment received that should have been made on account of the coal cut, the plaintiff’s right to sue was complete. When the defendant ceased to furnish cars on which to load the coal, this was an unequivocal breach of contract, and had this been an entire contract, it would have permitted an immediate right of action for the coal cut. Without this, however, and in the enforcement of the contract as we view it, the plaintiff had a right to be paid for the coal within a reasonable time after it was cut, and to enforce that right by suit. It is definitely fixed that they stopped working in the fall of 1901. Without discussing how long before that the right accrued, to sue for the coal cut, this would unquestionably fix the time when the statute of limitations began to run and being without the statutory period the court did not err in directing a compulsory nonsuit.

The judgment is affirmed.