176 Ind. 469 | Ind. | 1911
Lead Opinion
This action is by a widow to recover for the death of her husband. It was brought under the coal-mining act of 1905 (Acts 1905 p. 65, §8569 et seq. Burns 1908), and the amendments by the acts of 1907 (Acts 1907 p. 253, §8597 Burns 1908, and Acts 1907 p. 347, §8602 et seq. Burns 1908).
The complaint, the sufficiency of which is attacked, sets out with great detail the physical outlines of appellant’s coal mine, giving the depth of the main shaft, the location of the main entries, the cross-entries, the rooms, the break-throughs, the air-shafts, and alleges the employment of miners to produce coal at a fixed price per ton, the employment by the miners, with the knowledge and consent of appellant, of shot-firers, of whom appellee’s decedent was one, to whom appellant paid one-fourth of a cent per ton in addition to
This action is predicated upon §8597 Burns 1908, Acts 1907 p. 253, reading as follows: “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 operator shall accrue to the party injured for the direct injury sustained
By §8613 Burns 1908, Acts 1907 p. 347, §12, it is provided that “the inspector of mines shall have power in his discretion to order the sprinkling of any coal mine or part of mine by notice in writing to the operator thereof, or person in charge of the same, and after receiving such notice it shall be unlawful for any person to act in violation thereof and to omit such sprinkling. Copies of any notices given hereunder shall be posted at the mine entrance by the inspector of mines.” The contention of appellant is that the provisions of the act of 1907 (Acts 1907 p. 347) repealed the act of 1905 (Acts 1905 p. 65) on the subject of sprinkling mines, and reposes the subject wholly in the discretion of the inspector; that the failure to sprinkle can only be wilful and a violation of the statute after this discretion has been exercised, and notice has been given by the inspector; that under said act of 1907 no provision is made for action by the widow, unless the omission is wilful; that it can only be a violation after the inspector has given notice, and that in this case no notice is alleged; that the legislature must have had some object and purpose in view in the use of the words in §8597, supra, in “violation of this act, or any wilful failure to comply with any of its provisions, ’ ’ and that under this state of the law, and the allegations of the complaint, only a personal representative can maintain the action. The title of the act of 1907 (Acts 1907 p. 347), is, “An act concerning coal mines, and to pro
By §14 of the act of 1907 (Acts 1907 p. 347, §8615 Burns 1908), “any person violating any provision of this act or wilfully refusing, neglecting or failing to do anything required to be done by any provision hereof by such person, or obstructing or attempting to obstruct or interfere with the inspector of mines or any of his assistants in the discharge of any duty imposed by law, or refusing, failing or neglecting to comply with the proper orders of the inspector of mines or his assistants, shall be guilty of a misdemeanor punishable on conviction by a fine not exceeding $500, to
This is the more true where acts, are passed on the same day. Commontucalth v. Huntley (1892), 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; Solomon v. City of Denver (1898), 12 Col. App. 179, 55 Pac. 199; Territory v. Wingfield, (1887), 2 Ariz. 305, 15 Pac. 139; Lien v. Board, etc. (1900), 80 Minn. 58, 82 N. W. 1094.
The fact that the act is declared to be cumulative is also of great force in evincing the legislative intent. The right of action under §27 is not taken away. Coxichman v. Prather (1904), 162 Ind. 250; Maulé Coal Co. v. Partenheimer, supra.
The acts of 1907 extend the requirements in regard to sprinkling, and embraces not only roadways and entries, but extend the power of the inspector to require “the sprinkling of any coal mine, or part of mine.” It was no less the duty of the operator under the act of 1905, supra, to sprinkle the “roadways and entries,” and no less the duty of the inspector to see that it was done, than it is under the act of 1907 (Acts 1907 p. 347), but as to any other part of a mine, said act of 1905 was silent, and the act of 1907 leaves it to the inspector to determine when and where sprinkling shall be done, and to give notice, before it becomes unlawful on the part of the operator to omit to do so, except as to roadways and entries. It is not difficult to discover the reason for the use of the words “any violation,” and “any wilful failure.” “Violation” as therein used embraces not only acts of omission in failing to do the things that are required to be done, but of commission in doing things that are declared shall not be done, and as applied to the whole statute the instances are numerous. State v. Case (1873), 53 Mo. 246, 256; People v. Fox (1896), 38 N. Y. Supp. 635, 636, 4 App. Div. 38; Odin Coal Co. v. Denman (1900), 185 Ill. 413, 57 N. E. 192, 76 Am. St. 45.
A wilful failure implies more than mere nonconformity, inattention, thoughtlessness or heedlessness, and goes to the intent implied in failing to do the thing after the attention is called to it, or notice given under this statute by the inspector, and implies the intentional and conscious violation and persistent refusal or neglect, not necessarily with evil or malicious intent; it amounts to more than mere passive negligence, it is active refusal, it is wilful or reckless disregard of the safety of the miners, and an intentional failure and refusal to perform a plain statutory duty. Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62; Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 23 L. R. A. 552; Gin
The distinction between wilfulness and gross negligence is well drawn in the case of Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490.
So here, the failure to comply with the statutory requirements as to sprinkling “roadways and entries,” and other express provisions, clearly constitutes a violation of the act, while failure to sprinkle “any coal mine or part of mine,” after notice by the inspector, or to do any thing that he might, under the act, require, would constitute “wilful failure.” Both “violation” and “wilful failure” are made misdemeanors, and for either a civil cause of action is given. Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319.
The statute of Illinois is more restricted than our own upon the subject of giving a right of action. The language there is “wilful violations” or “wilful failure” to comply
In view of the opinion entertained by the court, it is unnecessary that we determine any question as to the constitutionality of the statutes presented by appellee.
No error in the record is made to appear, and the judgment is affirmed.
Rehearing
On Petition for Rehearing.
by the specific finding, under instructions defining proxi
We have again gone over the case in the light of appellant’s petition for a rehearing, but see no reason to change our former opinion. The petition is overruled.