Durkin v. Kingston Coal Co.
33 A. 237
Pa.
1895
Check Treatment

Opinion by

Mb. Justice Williams,

The first article of the constitution of this state, known as the bill of rights, declares that all men are possessed of certain inherent and inalienable rights. One of these is the right to acquire, possess, and protect property. The preservation of this right requires both that every man should be answerable for his own acts and engagements, and that no man should be required to answer for the acts and engagements of strangers over whom he has no control. A statute that should impose such a liability, or that should take the property of one person and give it to another, or to the public, without making just compensation therefor, would violate the bill of rights, and would be for that reason unconstitutional and void: Harvey v. Thomas, 10 Watts, 66; Ervine’s Appeal, 16 Pa. 265; Kneass’s Appeal, 31 Pa. 87; Wolford v. Morgenthal, 91 Pa. 30 ; Godcharles & Co. v. Wigeman, 113 Pa. 431. It is in furtherance of the right to acquire, possess and protect property that sec. 18, of the bill of rights prohibits the enactment of laws that shall interfere with or impair the obligation of contracts. The tendency toward class legislation for the protection of particular sorts of labor has been so strong, however, that several statutes have recently been passed that could not he sustained under the provisions of the bill of rights. Such was the case in Godcharles v. Wigeman, supra. Such was the case with some recent provisions relating to mechanic’s liens, and such is alleged by the appellant to be the ease with some of the provisions of the act of 1891, P. L. 176, under which this action was brought.

*200The title of the act of 1891 is “An act to provide for the health and safety of persons employed in and about the anthracite coal mines,of Pennsylvania and for the protection and preservation of property connected therewith.” It divides the anthracite region into eight districts, and provides for the appointment by the governor of a competent mine inspector in each district who shall have a general oversight of mining operations within his district. It creates an examining board for each district with power to examine candidates and recommend such as they shall deem qualified for the position of mine foreman to the secretary of internal affairs. It is made the duty of this officer to issue certificates to those who apply therefor, and have been recommended by the board of examiners. Article 8, sec. 1, declares that no person “shall be permitted to act as mine foreman or assistant mine foreman of any coal mines or colliery ” who has not been examined by the board of examiners, recommended to the secretary of internal Affairs, and provided by that officer with a certificate. The (.employment of a certified mine foreman is made obligatory Apon all mine owners and operators, and a failure to do so is punished by a fine of twenty dollars per day, which may be collected from the owner, the operator, or the superintendent in charge of the mine. The duties of the mine foreman are prescribed by the act, and the owner or operator of the mines cannot interfere with them. He is especially to “visit and examine every working place in the mine at least once every alternate day while the men of such place are or should be at work, and direct that each and every working place is properly secured by props or timber, and that safety in all respects is assured by directing that all loose coal or rock shall be pulled down or secured, and that no person shall be permitted to work in an unsafe place unless it be for the purpose of making it secure.”

The mine foreman is also required to examine at least once every day “ all slopes, shafts, main roads, ways, signal apparatus, pulleys, and timbering, and see that they are in safe and efficient working condition.” After having thus most effectually taken the management of his mining operations out of his hands and committed it to officers of its own creation, whose employment is made compulsory upon him, the statute in sec. 8, of art. 17 imposes upon the mine owner a liability for the neg*201lect or incompetency o£ the men whom he is compelled to employ in these words: “ That for any injury to person or property occasioned by any violation of this act or any failure to j comply with its provisions by any .... mine foreman a right I of aotion shall accrue to the party injured against said owner , or operator for any direct damages he may have sustained thereby; and in case of loss of life by reason of such neglect i •or failure aforesaid a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost for like recovery of damages for the injury they shall have sustained.” This statute regarded as a whole is an 'extraordinary piece of legislation. Through it the lawmakers say to the mine owner “You cannot be trusted to manage your own business. Left to yourself you will not properly care for your own employees. We will determine what you shall do. In order to make it certain that our directions are obeyed we will set a mine foreman over your mines with authority to direct the manner in which your operations shall be conducted, and what precautions shall be taken for the safety of your employees. You shall take for this position a man whom we certify to as competent. You shall pay him his salary. What he orders done in your mines you shall pay for. If notwithstanding our certificate he turns out to be incompetent or untrustworthy you shall be responsible for his ignorance or negligence.” Under the operation of this statute the mine foreman represents the commonwealth. The state insists on his employment by the mine owner, and in the name of the police power turns over to him the determination of all questions relating to the comfort and the security of the miners, and invests him with the power to compel compliance with his directions. Incredible as it may seem, obedience on the part of the mine owner does not protect him, but if the mine foreman fails to do properly what the statute directs him to do the mine owner is declared to be responsible for all the consequences of the incompetency of the representative of the state. This is a strong case of binding the consequences of the fault or folly of one man upon the shoulders of another. This is worse than taxation without representation. It is civil responsibility'without blame and for the fault of another. The same conclusion may be reached by another road. It has been long settled that a mining boss or foreman is a fellow servant with *202the other employees of the same master engaged in a common business, and that the master is not liable for an injury caused by the negligence of such mining boss:. Lehigh Valley Coal Company v. Jones, 86 Pa. 432; Delaware & Hudson Canal Co. v. Carroll, 89 Pa. 374; Waddell et al. v. Simoson and Wife, 112 Pa. 567.

The duty of the mine owner is to employ competent bosses or foremen to direct his operations. When he does this he discharges the full measure of his duty to his employees and he is not liable for an injury arising from the negligence of the foreman : Waddell et al. v.’Simoson and Wife, supra. A vice principal is one to whom an employer delegates the performance of duties which the law imposes on him, and the employer is responsible because the duty is his own. As to the acts of the workmen and the manner in which they do their work, the duty of the employer is to employ persons who are reasonably competent to do the work assigned them, and if he finds himself mistaken in regard to their competency, to discharge them when the mistake is discovered. But he is nob responsible for the consequences of their negligence as these may affect each other: Ross v. Walker, 139 Pa. 42. Now the act of 1891 undertakes to reverse the settled law upon this subject and declare that the employer shall be responsible for an injury to an employee resulting from the negligence of a fellow workman. Prior to the act of 1891 the man whose negligence caused the injury was alone liable to'respond in damages. He might not always have property out of which a judgment could be collected, but the plaintiff must in any case take his chances-of the solvency of the defendant against whom his cause of action lies. ^The act of 1891 undertakes to furnish a responsible defendant for the injured person to pursue. Passing over the head of the fellow servant at whose hands the injury was received, it fastens on the owner of the property on which the-accident happened, and declares him to be the guilty person on whose head the consequences of the accident shall fall. To see the true character of this legislation we must keep both lines of objection in mind. We must remember that the injury complained of is due to the negligence of a fellow workman for which the master is responsible neither in law nor morals. We must also remember that this felíow workman has been. *203designated by the state, his duties defined and his powers conferred by statute, and his employment made compulsory under heavy penalties by the same statute. Finally we must remember that it is the negligence of this fellow servant whose competency the state has certified, and whose employment the state has compelled, for which the employer is made liable. The State says : “ He is competent. You must employ him. You shall surrender to his control the arrangements for the security of your employees.” It then says in effect, “ If we impose upon you by certifying to the competency of an incompetent man, or if the man to whom we commit the conduct of your mines neglects his duty you shall pay for our mistake and for his negligence.” We have no doubt that so much, at least, of sec. 8 of art. 17 of the act of 1891 as imposes liability on the mine owner for the failure of the foreman to comply with the provisions of the act which compels his employment and defines his duties is unconstitutional and void.

This disposes of this appeal so far as the Kingston Goal Company is concerned. But why should the certified mine foreman be relieved from the consequences of his negligence ? The jury have found that the injury was duo to his want of attention to his proper duties, and his liability is clear without regard to our mining laws. But the statute required him to examine the roads and ways in use in the mine each day. He knew the film of rock separating the upper from the lower working was but eight feet thick at best. He knew that the supports for this film were not in line with each other in the upper and lower workings. He knew that layers of the rock were falling off, that the thickness of the floor was reduced under the way on which the accident occurred to about five feet, and that not far away it had fallen down into the lower working; yet with all this knowledge he did nothing, so far as we can learn, to increase the security of the way. Whether his conduct be considered with reference to the statute, or regardless of it, his failure to do what ho must have known to be necessary was a neglect of duty such as should render him liable to his fellow servant who has suffered from it. Some difficulty has been suggested growing out of the pleadings, but the declaration is not before us. We cannot determine therefore whether an amendment is necessary in order to sustain the judgment against him.

*204We are not prepared to hold the act of 1891 to be unconstitutional as a whole. It relates to all anthracite coal mines and defines what shall be regarded as such mines. Coal may be taken out of the ground by farm owners for their own use, or it may be taken in such small quantities and for such local purposes as to make the application of the mining laws to the ■operations so conducted not only unnecessary but burdensome to the extent of absolute prohibition. Such limited or incipient operations are not within the mischief to remedy which the mining laws were devised. They are ordinarily conducted for purposes of exploration or for family supply, and ought not to be classed with operations conducted for the supply of the public. The business of coal mining like that of insurance or banking may be defined by the legislature. The definition found in the act of 1891 seems to us reasonable, to be within the fair limits of a legislative definition, and to exclude only •such operations as are too small to make the general regulations provided by the act applicable to them. The ground on which we place our judgment is not therefore that the act is local, but that the provisions of it which we have considered are in violation of the bill of rights. The judgment against Kingston Coal Company is reversed for reasons that are fatal to a recovery against it.

The judgment against Wm. Jones is affirmed.