63 So. 1012 | Ala. | 1913
Lead Opinion
— Section 1016 of the Code of 1907 says: “The operator or superintendent of every coal mine, whether shaft, slope, or drift shall provide and hereafter maintain, ample means of ventilation for the circulation of air through the main entries and all other working places to an extent that will dilute, carry off, and render harmless the noxious gases generated in the mines. It shall be the special duty of the inspector and his assistants to carry out the provisions of this section; and it shall also be the duty of each and every mine operator and mine boss to assist the inspector and his assistants in carrying into- effect said provisions.” This statute is not as terse and clear as it might be, but it was evidently the intention of the Legislature to require mine operators and superintendents to< keep their mines ventilated to the extent of rendering them harmless from noxious gases generated therein. The Legislature meant more than merely requiring the nondelegable duty of furnishing the means for ventilation, but made it the imperative duty of the operator or superintendent to so ventilate the mine as to render it harmless from noxious gases generated therein. This seems to be the view taken of the statute in the case of Foley v. Pioneer Co., 144 Ala. 178, 40 South. 273, and which case was decided before the re-enactment of the statute in the present Code. It is true that the said statute is not discussed at length in said case; but the opinion indicates very strongly that it was the imperative duty of the operator or superintendent, under said statute, to keep the mine ventilated for the purpose of carrying off and rendering harmless noxious gases generated therein. The statute was again so treated in the case of Sloss
Statutes of this character are designed for the purpose of protecting human life and should be so construed as to effectuate the legislative intent, and this section should not be so whittled down as to make it the imperative dnty of the operator to supply only the means, but so as to require that he keep his mine harmless from noxious gases generated therein.
The trial court in ruling upon the evidence and in giving certain charges, requested by the defendant, proceeded upon the idea that the statute did not require the defendant to keep the mine ventilated, but merely required it to furnish and keep the means and appliances for ventilation, and in this there was error.
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.
Rehearing
ON REHEARING.
As stated in the original opinion, this statute (section 1016 of the Code of 1907) is not as clear as it might be, but it is reasonably susceptible of the construction given it, and which was given thereto' in the Foley Case, supra, and, like all statutes designed for-the protection of human life, should be so construed as to effectuate the beneficent purpose of the Legislature in passing same. This statute applies only to noxious gas generated in the mine and was intended to require the mineowner to fan it out, or to so ventilate his mine as
It may be that the act of 1911 (page 515, § 40) recognizes a distinction between noxious and explosive gas and includes both, and, as it prescribes the amount of air to be supplied, the OAvner may meet the requirement of same when he supplies the requisite amount of air, but, as this case arose prior to said last act, it must be governed by the Code of 1907, and we will construe said last act when the occasion may arise for us to do so.
The Legislature, in adopting section 1016, was exercising a police poAver for the protection of human life and health, and we do not think that the said statute is so arbitrary or oppressive as to render it repugnant to the federal Constitution. — Barrett v. State of Indiana, 229 U. S. 26, 33 Sup. Ct. 692, 57 L. Ed. 1050.
The application for a rehearing is overruled.
Dissenting Opinion
— (dissenting).—The opinion says, and the decision decides, that a mine-operator is imperatively required by the statute quoted and construed,
If this is true, then the court ought to go further and declare the statute to be unconstitutional. The Legislature has no power to require a man to do that which he and no one else can do. Human genius, so far, has not been able to learn or devise any means to this end. If it be possible, no human being has yet discovered the mode or process of so doing. Science may hold it in store, but, so far, she has not revealed it to man — it is still a sealed book. If the Legislature can make a man do that which he cannot do, then the statute is all right; if it cannot, then it is all wrong. That is all there is, or can be, in the decision.
I say: First, the Legislature has not so provided; and, second, if it has, it is of no avail. It is both conceded and decided in thé opinion that the statute is not clear to this end. It is apparent and unquestionable that the statute does not say what the court says it means, but the construction placed on it by what is said in the opinion is, that it is the imperative duty of the mineowner, and a nondelegable duty, to “keep h'is mine harmless from noxious gases- generated therein.” It is admitted that this was not the law before the passage of statute; and I suppose it will be conceded that it was never heretofore expressly so decided, though cases are cited as inferentially so deciding, and these cases this decision purports to follow. I think my Brothers are in error, as to what the cited cases decided as well as to the construction placed upon this statute.
It was expressly said by this court, speaking through the same judge and concurred in by the same judges that announced and concurred in the decision of this
On the first hearing in this case it was said: “The duty of operating the ventilating appliances is delegable^ and if the master provides and maintains sufficient appliances to dilute, carry off, and render harmless the noxious gases, he complies with the statute. The word ‘maintain,’ as used in this section, does not mean ‘operate,’ and the statute cannot be properly construed so as to make the master an absolute insurer against harmful, noxious gases generated in the mine, by giving this word such a meaning. Had it been the intention of the Legislature to make the mineowner an absolute insurer, they would have said so in plainer and fewer words.” I confess my inability to show the error of the present holding in stronger or plainer terms than those quoted above,- and another case has been put out by this court, at this term, deciding the same thing, which I suppose will be recalled and corrected if the present decision and opinion is allowed to stand. The only thing I desire to add to the above is that it is admitted in this opinion that the statute changes the common law in this respect, and it is admitted that the statute is not clear and that it is doubtful. This being true, why does not the second canon of construction apply, that a statute will not be construed to change the common law, but to be declaratory thereof, unless the change clearly and unmistakably appears? The pres
So much for the proper construction of the statute; but if the statute means what the court says it means, and is a valid law, what is the effect and result? Many other states, and England, have similar statutes, and they have never been so construed, but, on the contrary, have been construed by the respective courts of such countries as the first opinion quoted construed them. Why should the courts of this state decide differently from all other courts ? It seems to me too plain for controversy or doubt that, if this is the law, no solvent man or corporation can afford to operate a coal mine, could afford to assume the responsibility; that coal will have to be mined by insolvent persons or corporations, or by .the state, which is probably not within the statute. No insurance company would insure a mine against such risk.
It is an acknowledged and well-known fact that thus far no means or device has been discovered which, even under the most careful operation, will prevent injuries and accidents in coal mines as the result of bad air and explosions. I suggest, for the consideration of any one who desires to consider the suggestion, that this particular section was not specially provided, nor intended, .to prevent explosions, but primarily to afford pure air for the miners to breathe while at work. An explosion might occur, when no one would be able to detect any impurity so far as air to breathe is concerned. I desire further to call attention to the fact — which the opinion does not notice — that, if the statute means what this decision says it means, the superintendent, as well as the operator, is liable as to ventilation and explosions in coal mines. Would any prudent and solvent man ac
If the statute expressly and unmistakably imposed civil liability merely upon the showing of injury resulting from or proximately caused by noxious gases in the mine, then, as I understand this decision, and others of this court, the statute would clearly be unconstitutional. — Zeigler's Case, 58 Ala. 594. In that case, speaking of a statute against railroads, similar to this, which expressly provided what the court holds that this statute, by implication, provides, this court, speaking by Stone, J., said: “We have heretofore declared a rule which exacts from railroad corporations a high degree of skill and diligence, to prevent injury to persons and property. See Tanner v. Louisville & Nashville R. Co. [60 Ala. 621], Sav. & Memph. R. R. Co. v. Shearer [58 Ala. 672], and S. & N. R. R. Co. v. Sullivan [59 Ala. 272], at the present term. We have no wish to modify that rule. But when these very useful corporations conform to this strict rule of diligence, we can perceive no reason, in law or morals, for holding them to a stricter measure of accountability for inevitable misfortunes than would be exacted from natural persons for injuries
This doctrine was reaffirmed in Morris’ Case, 65 Ala. 193, in the following language. “In Zeigler v. S. & N. R. R. Co., 58 Ala. 594, this court pronounced the first section of this act, now comprised in section 1710 of the Code, to be unconstitutional, on the ground that it sought to impose an absolute and unconditional liability upon railroad companies, without regard to any question of legal wrong, fault, or negligence on their part, and thus operating to deprive them of a hearing in court by that ‘due process of law’ guaranteed to all persons under section 7 of the Bill of Bights.”
The rule as stated by Mr. Labatt, as to the duty of the master to supervise the mere executive details of the work, is (Master and Servant, vol. 2, p. 1719, text and notes) : “The most general form in which the limits of a master’s obligations are susceptible of being stated is that he is not bound to supervise the merely executive details of the work to be done by his servants.” “ £It would be extending the liability of the master beyond any established rule, to require him to oversee and supervise the executive detail of mechanical Avork carried on under his employment, and there is no rule of law which authorizes it.’ — Hussey v. Coger (1889) 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559 [8 Am. St. Rep. 787].” “The master does not insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them; they must use their oAvn judgment as to the manner of handling it. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each and all of his employees.”
I concede the rule is well stated by that clearest of all judicial writers of my acquaintance, Mr. Justice Field, in Mather v. Rillstone, 156 U. S. 39, 15 Sup. Ct. 464, 39 L. Ed. 464, where he says: “Occupations, however important, which cannot be conducted without necessary danger to life, body, or limb, should not be prosecuted
Yet, in agreeing to all this, I am not willing to agree to a construction of a statute which will make one man liable for the death of another when the living one could' not have prevented the death or injury to such person, unless that construction is undoubted and unavoidable; • and if it did so provide I should say that without doubt, such statute was unconstitutional.
A number of statutes in Pennsylvania, which attempted to make the operator liable for injuries which he-could not prevent, were held to be unconstitutional and in violation of the Bill of Rights, and to deny due process of law. It seems to- me too plain for argument that any statute which attempted to make any person liable-for acts or consequences which such person could not avoid or prevent is contrary to all morals and law. SeeDurkin’s Case, 171 Pa. 183, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801. In that case the court struck down a statute which said, in words, what this court says our - statute implies. The first paragraph in the opinion is as . follows: “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 rights is to acquire, possess, and protect property. The preservation of this right requires both-.
