DeBoth v. Rich Hill Coal & Mining Co.

141 Mo. 497 | Mo. | 1897

Burgess, J.

— This is an action by plaintiff, a coal miner, against the defendant for damages for personal injuries sustained by him while in the service of defendant. The action was begun on. the twelfth day of December, 1894, in the circuit court of Bates county, but thereafter the venue was changed to the circuit court of Cass county. The petition, leaving off the formal parts, is as follows:

“The plaintiff, Prank DeBoth, for his cause of action and in this his third amended petition, says that the defendant, the Rich Hill Coal Mining Company, is and at all times hereinafter named was a mining corporation duly organized and doing business under the laws of the State of Missouri. That as such corporation, in and during the month of June, 1893, defendant was operating a coal mine near Rich Hill, Missouri, known as mine No.-. That the roof of a said mine in a room therein worked by one Ed. Getterro was in a dangerous and unsafe condition, and props and timbers were much needed and required in said room to properly secure the working and the roof therein from caving in. That props and timbers for the purpose of properly securing said workings and roof had by said Ed. Getterro been demanded and requested of this, defendant through its agent, the then acting pit boss of said mine, who had the immediate charge and supervision of said mine and of said room, and who was required and demanded and requested by the said Ed. Getterro to send down and furnish props and timber to make said roof secure and safe and to prevent it from caving in. That under the mining laws of the State of Missouri it was the duty of the said defendant, when requested as aforesaid, to furnish and keep on hand the necessary props and timbers with which to secure the roof and working places of said room, and under said law it was the further duty of said company to send props and timbers for such purpose to said room when the same were needed and demanded as aforesaid. That notwithstanding the fact that the said props and timbers were sorely needed and had been requested and demanded, the said defendant willfully, negligently and wrongfully failed and refused to send the same down to said room as was required and demanded, thereby leaving said roof of said room in a very dangerous condition. That it was the custom, at the time of the injury hereinafter mentioned, recognized by this defendant in said mine, when a car got off the track for the miners in the neighboring room, when called upon, to assist in putting the same back upon the track, and they were bound by their employment in said mine as miners to do so. That this plaintiff on the-day of June, 1893, was working as a coal miner for the defendant in said mine, in a room adjacent to the room aforesaid. That a car in said room got off the track and'this plaintiff being called into said room for that purpose by the said Ed. Gretterro went into said room to assist in putting said car upon the track; and while he was lifting on said ear in said room for the purpose of putting it upon the track, a large piece of slate fell. from the roof of said room upon him, striking him on the back, hips and legs, and mashing his hips, fracturing his back, and injuring his spinal nerve and nerves so as to deprive him entirely of the power to move his legs or any part of his body below the small of the back, or to feel any sensation in his hips or legs. That plaintiff is. a coal miner by occupation, and said injury has rendered him unfit to follow his occupation, or to do any other work. That he is permanently injured and disabled; that he has already suffered and will suffer great bodily pain and mental anguish from said injury; that he has lost and will continue to lose much time therefrom; that he has been put to great expense for medicines and medical attendance, .to wit, the sum of two hundred dollars; that he will be put to further expense for doctors and nurses, and that his said injuries are permanent and incurable, and that by said injuries received as aforesaid he has been damaged in the sum of fifty thousand dollars. That said piece of slate would not have fallen if said room had been properly propped and secured with timbers and props and that the said injury of plaintiff was and is wholly the result of the willful, negligent, and wrongful failure of the defendant to keep a sufficient supply of timbers and props to be used in the rooms of said mines, and to send the same down to the said room in which plaintiff was injured, to the workmen therein, to enable the said workmen therein to properly secure the roof and working place so as to keep it from caving in and falling down.

“That on the seventh day of May, 1894, he filed his petition in the circuit court of Bates county, Missouri, in substance and in form as herein filed, suing for his said damages herein, which said cause was taken on change of venue by the defendant to the circuit court of Yernon county, Missouri, where it remained pending until the 6th day of December, 1894, when this plaintiff, owing to an adverse ruling of that court upon the question of evidence, took a nonsuit in said case, but in a few days thereafter filed the original petition in this pending cause.

“Wherefore plaintiff prays judgment for the said sum of fifty thousand dollars, and for his costs.”

Defendant demurred to the petition for the following grounds of objections:

“1. Because said petition does not state facts sufficient to constitute a cause of action against this defendant.

“2. Because it appears upon the face of plaintiff’s petition that the injury complained of occurred in June, 1893, and the present action was not commenced until the 12th day of December, 1894, under the mining act, or more than one year subsequent to the date of said injury.”

The demurrer was sustained and final judgment rendered in favor of defendant.

Plaintiff then sued out writ of error and brings the case to this court for review.

The first question with which we are confronted is with respect to the constitutionality of the act of the legislature entitled “An act to amend section 7074, chapter 115, article 2 of the Revised Statutes of the State of Missouri, relating to safety and inspection of mines.” Laws 1891, p. 182. It is contended by plaintiff that the proviso in said section limiting the time in which actions shall be brought under said' act is unconstitutional and void for the^eason that such proviso is not within the purview of the title of the act. We are unable to see the force of this contention. The •action is founded in part upon the section of the .statute in question; and the proviso therein, that all .suits brought under the article of the statute, of which that section forms a part, “shall be commenced within •one year after any cause of action shall have accrued under this article and not afterwards,” is not incongruous with the title to the amendatory act, but in harmony therewith. The words ‘ ‘safety and inspection of mines” used in the title to the act, are broad enough in their scope and 'meaning to embrace everything having natural connection therewith, and the time in which an action must be brought after the right to do so accrues, is as germane to the title of the act as the right to sue, which is unquestionably germane to the title. In State ex rel. v. Mead, 71 Mo. 266, it was said that “a provision in an act concerning popular elections authorizing the Governor to fill vacancies in elective ■offices is germane to the general subject and is valid,” •and in this case it seems to us that the proviso limiting the time in which actions shall be brought under the act in question is more directly connected with the general subject of the act than the authority conferred upon the Governor to fill vacancies in election officers ■in the Mead case. Nor do we think the title of the act misleading as to the proviso which limits the time in which actions must be begun thereunder. Such provisions are not unusual in statutes conferring the right to sue for damages for injuries sustained. Butin passing upon the constitutionality of the act we are not restricted to its title, but may consider the act in1 its entirety. Ins. Co. v. Albert, 39 Mo. 183; City v. Weitzel, 130 Mo. 600; Dart v. Bagley, 110 Mo. 42; State ex rel. v. Slover, 134 Mo. 10. And when this is done there can not, we think, be any question as to the validity of the act under consideration.

Plaintiff further insists that even though the act of 1891 be held tó be constitutional, that his Gause of action was not barred by the statute of limitations at the time of the commencement of this suit. The injury was sustained in June, 1893, at which time the cause of action accrued, and this action was brought on December 12, 1894. Therefore more than one year had elapsed from the time of the injury to the institution of this suit, and the action was then barred by the statute of 1891, unless the time that the former suit between -the same parties upon the same cause of action was pending be not taken into account. A similar question was before this court in Gerren v. Railroad, 60 Mo. 405, and it was then held that a new suit brought against a railroad, after nonsuit, must be commenced within one year after the cause of action accrued. In that case suit had been brought and nonsuit taken as in this case, and if the time during which the suit was pending had not been taken into account, the action would not have been barred at the time of the commencement of the new suit, but it was ruled that the action must be brought within one year from the time of the injury, notwithstanding another action may have been pending during a part of that time between the same parties, and for the same cause of action in which a nonsuit was taken and a new suit brought within one year next thereafter. The same doctrine was announced in Revelle v. Railroad, 74 Mo. 441; Kennedy v. Burrier, 36 Mo. 128.

The time in which such actions must be brought is prescribed by the act of 1891, and not by the general statute of limitations.

As from the conclusion reached the judgment must be affirmed, we deem it unnecessary to pass upon the first ground of demurrer.

The judgment is affirmed.

Gantt, P. J., and Sherw.ood, J., concur.