38 Ind. App. 637 | Ind. Ct. App. | 1905
Lead Opinion
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;
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
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 appel
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.”
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.
The judgment is reversed, with directions to the trial court to sustain appellant’s demurrer to the complaint.
Rehearing
On Petition eor Rehearing.
Appellee has asked for a rehearing and has supported her petition therefor by an able and ingenious brief. While several reasons are assigned, they are all included in the single question decided in the original opinion, viz: That under the facts stated in the complaint the right of action was in the widow of decedent and not in his personal representative.
It is insisted that under the amended act of 1899, supra, a right of action where death results from the “wrongful act or omission” of one, is lodged solely in the personal representative of the decedent. If this is true, the amended act repeals, by implication, §7473, supra, which gives the
If the latter section is repealed, then we were in error in holding that the administratrix could not maintain this action. Prior to the reenactment in 1899 of the general statute giving a right of action for the death of a person caused by the wrongful act or omission of another, the damages recoverable inured “to the exclusive benefit of the widow and children, if any, or next of kin,” etc. The only change made by the amendatory act of 1899, supra, was by adding the words “or widower (as the case may be).”
In Board, etc., v. Garty (1903), 161 Ind. 464, it was said: “It is a familiar rule, and one universally affirmed by the authorities, that a repeal by implication is not favored. In accordance with this rule, two or more acts on the same subject must, if possible, be so construed that both may be permitted to stand. It has been repeatedly affirmed by decisions of this court that implied repeals are only recognized and upheld when the later act is so repugnant to the earlier as to render the repugnancy or conflict between them irreconcilable. A court will always, if possible, adopt that construction which, under the particular circumstances in a given case, will permit both laws to stand and be operative.”
In 1 Lewis’s Sutherland, Stat. Constr. (2d ed.), §247, it is said: “ ‘When some office or function can by fair construction be assigned to both acts, and they confer different
In the last case cited it was insisted that section seventeen of the act approved March 7, 1883 (Acts 1883, p. 151, §2484 Burns 1901), amending the decedent’s act, repealed §802 Burns 1901, §790 R. S. 1881, of the civil
In 1852 the legislature passed two laws, one of' which was special, exempting farm lands lying within the corporate limits of cities from municipal taxation, and the other general, giving cities power to collect an ad valorem tax on all property within their corporate limits. In 1857 the latter act was amended, but the section conferring power upon cities to collect taxes on “all property within such city” was reenacted in precisely the same language.
In Blain v. Bailey, supra, the question involved was whether the act of 1857 repealed by implication the special act of 1852, exempting farm lands within the corporate limits of a city from taxation. It was held that the special act was not repealed, and in the decision the court employed the following language: “While these two acts continued in force they were, by the settled rules of construction, to be so interpreted that both could have effect. This could be done by holding the particular cases mentioned in the exempting act to constitute exceptions to the general provisions of the other act, and we are not aware that any doubt was entertained upon that subject at that time. How we cannot suppose that the legislature, by reenacting a provision in the same language which was employed in a repealed statute, intended to impart to it a wider scope, or other meaning, than that which the same words were previously intended to import, especially when the effect would be to accomplish what is not favored in the law — the repeal of another statute by implication. It is more reasonable to hold that the words have been employed in the same sense in which they had been used in the act repealed. * * * The position that it was not intended to repeal
Endlich, Interp. of Stat., §370, says: “It is scarcely necessary to remark, that, where the same language, which has received a certain judicial construction in an act, is used in an act amendatory of the same, it is to be presumed to have been used there in the same sense, and intended to be subject to the same construction.”
It is past understanding that the words “wrongful act or omission of another” in the act of 1899, supra, should have a wider scope, or a different meaning than they were construed to have had in the repealed statute. As we have seen, the .amendatory act is a reenactment of the old statute, in precisely the same language, adding thereto the words, “or widower (as the case may be).”
In 1852 the Illinois legislature passed a law giving a right of action for the death of a person by “wrongful act,” etc., and provided that the action should be brought by the personal representative “of such deceased person.” This statute is substantially like §285 Burns 1901, Acts 1899, p. 405, except it does not include the widower, as a beneficiary. In 1874 the statute in its original form was reenacted. R. L. of Illinois (1874), Chap. 70, p. 582.
In Litchfield Coal Co. v. Taylor (1876), 81 Ill. 590, the, identical question involved here was presented for decision.. In that case the action was commenced in the name of the administrator of the decedent. Subsequently the court permitted the declaration and summons to be amended by substituting the widow as plaintiff. There, as here, it was contended that the reenactment of the general statute in 1874 repealed by implication section fourteen of the mining act, and hence the action could only be prosecuted in the name of the personal representative. In the course of the decision the court said: “We are satisfied the widow was the proper person to bring the action. The fourteenth section of the act expressly authorizes her to bring the suit. Chapter 70, entitled ‘Injuries,’ R. L. 1874, p. 582, which authorizes an action in the name of the personal representatives, did not repeal the fourteenth section of the act entitled ‘Miners.’ The former act is general, while the act in relation to miners may he regarded as special, and the latter must control as to all cases specially enumerated in the act itself, while the other act, being general, would embrace all other cases.” Citing Town of Ottawa v. County of La Salle (1851), 12 Ill. 339.
While decided cases in other jurisdictions are not authorities binding upon courts in this jurisdiction, they are worthy of our consideration, and we are at liberty to follow them if we believe they properly declare ithe law. The case, last cited is, we believe, a correct declaration of the law, and is in harmony with the general rule announced in the
Counsel for appellee seek to parry the force of the decision in Couchman v. Prather (1904), 162 Ind. 250, cited in the original opinion, by saying that “it is not in point.” We cannot agree with counsel, but on the contrary regard the question there involved and decided directly in point. The facts upon which that case rested are so fully stated in the original opinion that we will not advert to them farther.
In the case of President, etc., v. Bradshaw, supra, two statutes passed at the same session of the legislature were involved. These two statutes were upon the same subject-matter, and the question was: Did the latter repeal, by implication, the former ? The substance of the first statute was that whenever any person should die from injuries happening through the negligence of a railroad company, a right of action for damages should exist in favor of certain specified persons against such company. One of the beneficiaries named in this statute was the wife of the person so killed. 1 R. S. 1852, p. 426, §3. Such right of action was limited by this statute against railroad companies. Thirty-eight days later the legislature extended this right, making it general against all persons, natural and artificial, annexing, however, some modifications and limitations upon its exercise. 2 R. S. 1852, p. 205, §784.
This later act is identical with §285, supra, except that it limited the recovery to $5,000, and the “widower” was
Counsel for appellee say that “no distinction can be drawn between the above case and the one at bar.” There is a clear and marked distinction. In the ease of President, etc., v. Bradshaw, supra, the court had under consideration two statutes passed at the same session of the legislature, and both acts related to the same subject-matter. In the case we are considering the two statutes are essentially different.
The amendatory act of 1899, supra, supplies a general procedure, by vesting in the personal representative of a decedent, who died from the wrongful act or omission of another, where such act or omission is made wrongful by statute, provided such statute makes no provision for its enforcement, or where an action is founded upon an act which created a common-law right of action.
Neither is the case of Pittsburgh, etc., R. Co. v. Burton, supra, in point, which will readily appear from a reference to the question there involved.
In 1879 the legislature passed a law requiring that engine whistles on locomotives should be sounded distinctly three times, not less than eighty rods from any highway crossing, and bells be rung continuously, etc. The same act provided that damages might be recovered for injuries or death resulting from a violation of the duties imposed, and provided that in case of death the recovery should be limited to $5,000. Acts 1879, p. 173, §4020 et seq. E. S. 1881. In 1881 the general act providing for the recovery of damages for “the wrongful act or omission of another” was amended, fixing the amount of recovery at $10,000, instead of $5,000. Acts 1881, p. 240, §284 E. S. 1881. It was held that the limiting clause of section four of the act of 1879, supra, fixing the amount of recovery at $5,000, was repealed by the amendatory act of 1881, supra..
It is our conclusion that the original opinion is not in conflict with the rules declared in the two cases we have just reviewed, but, on the contrary, is in harmony with the great weight of authority.
Petition for rehearing overruled.