Domestic Block Coal Co. v. DeArmey

Morris, J. This was an action by appellee against appellant, for damages, for personal injuries for alleged negligence, under §12 of the mining act of 1905 (Acts 1905 p. 65, §8580 Burns 1908). The trial court overruled a demurrer to the complaint, which action is here assigned as erroneous. There was a trial by jury, verdict for appellee in the sum of $3,000, and judgment thereon. Appellant’s motion for a new trial was overruled, and this ruling is also assigned as error. So much of the statute, as is applicable to the case, reads as follows: “The mine boss shall visit and examine every working place in the mine, at least every alternate day while the miners of such places are, or should be, at work, and shall examine and see that each and every working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miner’s working place. He shall also see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work, are taken down or carefully secured.” §8580 Burns 1908, Acts 1905 p. 65, §12. The complaint is in one paragraph and alleges that at and prior to the time of the injury, appellant was engaged in mining coal by means of a shaft, sunk from the surface to the coal bed, and then by constructing roads or entries, through the bed from which openings are turned, called rooms and from which the coal is mined; that fifty men, including appellee, were employed in the mine; that appellee was engaged in operating a machine, and his duties required him to move the machine from one part of the mine to another, and operate the same in mining coal; that appel [597] lant’s mine boss directed him to work in room No. 7, which had been driven in about 200 feet from the entry, to the face of the coal, and appellant had constructed, in the room, a track about 180 feet long, consisting of rails laid on ties, constituting a roadway, or travel way, from the entry, into, and through, the room, to the face of the coal; and that this travel way was the only road or way, by which the mining machine could be moved into and through the room, and to the face of the coal; that when injured, he was moving the machine in the room, along the track, preparatory to cutting coal; that from the end of the travel way, to the face of the coal, a distance of from fourteen to twenty feet intervened; that he had moved the machine to the end of the travel way, and was moving the same into the space between the end of the travel way and the face of the coal, and while so doing, and while he was on the travel way, he was injured by reason of a large and heavy piece of slate or stone, falling on him from the roof of the room. The allegations relative to appellant’s negligence, and appellee’s lack of knowledge of danger, are as follows: “And plaintiff says that he was injured by reason of the negligence of said mine boss in failing and neglecting to examine said roof of said room No. 7 with proper care every alternate day as was his duty so to do, and by reason of the negligence of said mine boss in failing to discover that said large piece of slate or stone in the roof of said room became loose and in a dangerous condition, and was likely to fall and injure the miners, including this plaintiff, who worked in said room and traveled back and forth on said travel way, and that he was injured without his fault as aforesaid by reason of the negligence of said mine boss in failing to discover and secure and make safe the roof of said room by taking down said loose and dangerous slate or stone, and that defendant’s mine boss negligently failed to notify this plaintiff that the said roof of said mine was defective, and that a large and heavy piece of slate or stone [598] was likely to fall therefrom and injure this plaintiff, and thereby permitted this plaintiff to go into said room while said roof was in said dangerous condition, and thereby negligently caused and permitted this plaintiff to pass into said room under said defective and dangerous part of said roof, and was thereby injured as aforesaid without his fault. And plaintiff says that defendant’s said mine boss knew that said roof was insecure and defective, and was in a condition to fall at any time, and knew that said condition of said roof was dangerous, and was likely and liable to fall and injure the employes of the defendant in said room, including this plaintiff, and had notice and knowledge of said condition of said room in said mine from two to six days before the happening of the accident to this plaintiff, as herein alleged, and in ample time to have taken down said slate or stone from said roof, and during all of said time said miners were at work in said room and working place of said mine. And plaintiff says that defendant’s said mine boss negligently failed to take down said loose slate or stone as aforesaid, and negligently failed to notify this plaintiff of said dangerous condition of said roof, and plaintiff says that said loose and dangerous slate or stone in said roof could have been taken down from the roof of said room by said inine boss by means of picks and crowbars and other instruments used for said purpose in said mine and removed from said room without in any way interfering with the proper working of said mine, or without interfering in any way with the mining of coal in said mine. And plaintiff says that he had no notice or knowledge that said roof was defective and dangerous and likely to fall and injure him at any time prior to the happening of said accident as herein alleged; and plaintiff says that by reason of the negligence of said mine boss, as aforesaid, said heavy piece of slate or stone fell from the roof of said room No. 7, as aforesaid, and injured this plaintiff, as aforesaid, without his fault.” [599] It is earnestly contended by appellant that considering the complaint on the theory most favorable to appellee— that of charging a violation of that part of the act which requires the mine boss to “see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work are taken down or carefully secured”—it yet fails to state facts sufficient to repel the demurrer, because it is not directly averred that' the slate, or stone, was loose, or dangerous, prior to the accident, or that appellant failed to perform any duty owing to appellee, or that it had any notice .of the danger, or what was the proximate cause of the injury. Appellant insists that the absence of direct averments of facts cannot be deemed as supplied by recitals, conclusions or arguments. On the other hand counsel for appellee assert that under the liberal provisions of our code this court would not be warranted in reversing the judgment because of the defective condition of the complaint. Our code of civil procedure, adopted in 1852, was modelled after that of the state of New York, and contains the following provisions: Sec. 47. “All the distinct forms of pleading heretofore existing, inconsistent with the provisions of this act, are hereby abolished; and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act.” 2 R. S. 1852, p. 37, §341 Burns 1908, §336 R. S. 1881. Sec. 49. “The first pleading on the part of the plaintiff is the complaint. The complaint shall contain * * *. Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition and in such manner as to enable a person of common understanding to know what is intended.” 2 R. S. 1852 p. 38, §343 Bums 1908, §338 R. S. 1881. Sec. 90. “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice be [600] tween the parties * * * ”. 2 R. S. 1852 p. 45, §385 Burns 1908, §376 R. S. 1881. See. 101. “The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect.” 2 R. S. 1852 p. 50, §407 Burns 1908, §398 R. S. 1881. Sec. 580. “No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns or other proceedings therein which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court * * *." 2 R. S. 1852 p. 162, §700 Burns 1908, §658 R. S. 1881. 1. A consideration of the above provisions, induces the conclusion that it was the intention of the legislature, in framing them, that all the material facts, constituting a plaintiff’s cause of action, should be stated directly, concisely, and in plain language, so as to meet the comprehension of persons of common understanding; it, however, urges the further conclusion, that it was contemplated by the legislature that nevertheless, there would appear imperfections and defects in pleadings and proceedings, and that it intended that, on appeal, no defect or imperfection should warrant the reversal of a judgment of the trial court unless the same might materially affect the substantial rights of the losing party. It was contemplated that in a civil action, each party litigant should have one fair and impartial hearing in the trial court, of all matters of substance constituting his cause of action or defense, and for a substantial lack thereof, but not otherwise, the duty was imposed on courts of review to award another hearing. In the construction of pleadings, it is evident that the legislature intended a more liberal rule, with a view of substan [601] tial justice, than obtained at common law. The latter rule is often stated as requiring a construction most strongly against the pleader. This statement standing alone, is not exact. The rule was, “if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them, for it is to be intended that every person states his case as favorably to himself as possible. (Co. Lit. 30, 36). But the language is to have a reasonable intendment and construction, (Com. Dig. Pleader C. 25) and if the sense be clear mere exceptions ought not to be regarded (5 East 529). And where an expression is capable of different meanings, that shall be taken which will support the averment, and not the other, which would defeat it (4 Taunt. 492, 5 East 257).” 1 Saunders, Pl. and Ev. 919, 31 Cyc. 78. In this State, by virtue of the provisions of §90, of our code (§385 Burns 1908, supra), it is well settled that a pleading, considered in its general scope, and as an entirety, will be liberally construed in order to promote justice between the parties. Smith v. Borden (1908), 160 Ind. 223, 228, 66 N. E. 681, and authorities cited. 2. In construing a complaint, where a demurrer is interposed, it will be deemed sufficient whenever the necessary allegations can be fairly gathered from all the averments, even though stated illogically and by way of argument. All facts will be deemed stated that e&n be implied from the allegations made, by fair and reasonable intendment, and facts so impliedly averred will be given the same force as if directly stated. Baylies, Code Pl. and Pr. (2d ed.) §3; Sage v. Culver (1895), 147 N. Y. 241; Williamson v. Yingling (1884), 93 Ind. 42, 44; Vance v. Schroycr (1882), 82 Ind. 114, 117; French v. Howard (1860), 14 Ind. 455; Austin v. Swank (1857), 9 Ind. 109; Town of Newcastle v. Grubbs (1908), 171 Ind. 482, 489, 86 N. E. 757; Indiana, etc., Torpedo Co. v. Lippincott Glass Co. (1905), 165 Ind. 361, 363, 75 N. E. 649; Pennsylvania Co. v. Sears (1894), 136 Ind. 460, 465, 34 N. E. 15, 36 N. E. 353; [602] Bell v. Eaton (1867), 28 Ind. 468, 92 Am. Dec. 329; Barkley v. Mahon (1884), 95 Ind. 101; Antioch Coal Co. v. Rockey (1907), 169 Ind. 247, 82 N. E. 76; Jones v. Monson (1908), 137 Wis. 478, 119 N. W. 179, 129 Am. St. 1082. In Roberts v. Sampson (1897), 50 Neb. 745, 748, 70 N. W. 384, the court said: “It is not enough, when a pleading is thus assailed [by general demurrer], that the facts are imperfectly stated, that it lacks definiteness of expression or that the facts are argumentatively averred, but it will be held to charge what can be implied upon the statements therein by reasonable and fair intendment.” To the same effect, see, Marie v. Garrison (1880), 83 N. Y. 14; Morse v. Gilman (1863), 16 Wis 531; 31 Cyc. 48, 73, 79, 80; While v. White (1907), 132 Wis. 121, 111 N. W. 1116. 3. There is no direct, averment in this complaint that the roof was defective or dangerous prior to the accident, but it is alleged that the mine boss knew the roof was insecure and defective and in a condition to fall at any time, and had such knowledge for a period of from two to six days preceding the accident, and in time to have taken down the stone that caused the injury. Appellee insists that the averment of the complaint to the effect that the mine boss knew of the defective condition of the roof, coupled with other allegations, compels the inference that such condition existed, and that, in any event, this court is not warranted, under the curative statutes above quoted, in reversing the judgment, because of the defects in the complaint. Appellant claims that such inference cannot be indulged, and that the sufficiency of the complaint must be determined from the same point of view as occupied by the trial court, in acting on the demurrer, and cites McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 65 N. E. 753, and other cases, in support of such contention. It would appear that appellant’s contention is fairly sustained by the decision of the MeElwaine-Richards ease, but it is insisted by appellee that the rule declared in [603] that ease is not in harmony with the doctrine generally recognized by this and other courts. The recent case of Agar v. State (1911), 176 Ind. 234, 94 N. E. 819, is instructive on the question of indirect averments in an indictment. It was there held that the true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and cause of the charge against him. The opinion contains an exhaustive review of the authorities, and quotes with approval the following from Bicknell, Crim. Prac. 102: “That A, being an officer, etc., is a sufficient averment that he was an officer, 2 Burr. 832; 2 Hawkins, chap. 25, §112. So the words ‘that A, knowing that B was indicted for forgery, concealed a witness against him,’ etc., is a sufficient averment that B was indicted; and where an indictment for perjury stated that, at and upon the hearing of the said complaint, the defendant deposed, etc., this was held to be a sufficient averment that the complaint was heard.” In the Agar case, Axtell v. State (1910), 173 Ind. 711, 91 N. E. 354, which held an averment, by indirection and recital, insufficient on motion to quash, was expressly overruled. The McElwaine-Richards case was decided without the assistance of a brief by appellee. This failure to file a brief warranted the court in reversing the judgment without further reason. Whether the court would have reached the same conclusion it did, had appellee discharged his duty, in assisting the court by filing a brief, is a question not necessary here to consider, but we believe that in so far as that ease held that courts are not warranted in resorting to inferences or deductions where the question involves the sufficiency of a pleading, it announced an erroneous doctrine, and to that extent it is overruled. Mindful of the rule that a demurrer admits as true not only the facts well pleaded, but also all others reasonably inferable therefrom (Antioch Coal Co. v. Rockey, supra), we think it cannot be fairly said that any material fact, requisite to [604] recovery, is omitted from the complaint. It was sufficient to apprise a person of ordinary understanding of what he would be required to meet. Agar v. State, supra; Valparaiso Lighting Co. v. Tyler (1912), 177 Ind. 278, 96 N. E. 768. 4. Appellant makes no claim that it was misled or deprived of making complete defense to the action because of any defect in the complaint, and if this judgment be reversed because of ther court’s ruling on demurrer, the only substantial result attained thereby, would be the instruction received by appellee’s counsel in the science of pleading. However desirable it may be to the courts to secure pleadings that are scientifically accurate, we are not warranted in reversing judgments solely for such reason. Appellant did not see fit to file a motion to make the complaint more definite and certain. Fairly construed, the pleading does not omit any fact necessary to entitle the plaintiff to a recovery. The defective and imperfect method df stating some material facts, would not warrant a reversal of the judgment, because of the provisions of §§407, 700 Burns 1908, supra. Noble v. Davidson (1912), 177 Ind. 19, 96 N. E. 325; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 98 N. E. 177; Driscoll v. Penrod (1911), 176 Ind. 19, 95 N. E. 313. 5. It is apparent that §700 Burns 1908, supra, applies only to amendments deemed made in support of a judgment and its provisions could not be invoked for the purpose of reversal. Baylies, Code Pl. and Pr. 525. In most of the cases cited by appellant, it does not appear from the opinions that any question relative to the application of the above mentioned curative statutes was ever presented to the court. [605] 4. [604] In a great number of the cases relied on by appellant, it would appear that indirect averments, by way of recital, were entirely disregarded. Without setting out these cases, it is sufficient to say that the broad rule therein announced, [605] must be considered as modified by the more recent ease of Agar v. State, supra, for it will not be contended that a stricter rule of construction applies to civil than to criminal pleadings. In Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 7 N. E. 893, cited by appellant, it was said in relation to the curative statutes set out in this opinion, that “where a demurrer to a complaint which fails to state a cause of action has been overruled, the error in so ruling cannot be cured by resorting to the sections relied on”. Substantially the same doctrine is announced in numerous other cases which appellant cites. Here there was no omission from the complaint of any material fact, but the difficulty arises over the defective method of stating certain necessary facts, and in such case the above doctrine does not apply. We think this court would not be warranted in reversing the judgment here by reason of the objections urged by appellant against the complaint. 6. [606] 7. [605] It is contended by appellant that plaintiff’s requested instruction No. 5, given by the court, was erroneous, because it contained matter not within the issues and was misleading. In the instruction, the jury was informed generally concerning the statutory duties of the mine boss, and, among other things, that it was the latter’s duty “to keep a careful watch over the ventilating apparatus and air ways, and, as the miners advance their excavations, to carefully secure against falling, on the traveling and air ways, all loose coal, slate and rock overhead. ’ ’ The instruction further informed the jury that the failure of the mine boss to discharge the “duties aforesaid, prescribed by statute,” is negligence, imputable to the defendant. The complaint alleges no neglect of duty with reference to air ways or ventilating apparatus, and consequently the instruction dealt with matters not in issue. Instructions should be applicable to facta in issue only, and are not good simply because they correctly state abstract propositions of law. Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 25 N. [606] E. 156. The error, however, was harmless, for in instruction No. 2, requested by appellant, the court specifically instructed the jury as to its duties, and therein informed it that plaintiff could not recover unless it found from a preponderance of the evidence either that defendant was negligent in failing to have its mine boss visit room No. 7 each alternate day, etc., or that defendant was negligent , in that it had notice through its mine boss, or otherwise, that the piece of slate or rock that fell was loose, etc. 8. 9. In said instruction No. 5, the court informed the jury that it was the statutory duty of the mine boss to visit and examine every working place in the mine at least every alternate day, etc. It is claimed this was erroneous, because the complaint contains no averment of the failure of the mine boss to visit and examine the place in question. In appellant’s requested instruction No. 2, given by the court, it was stated that ‘ ‘ The plaintiff in his complaint * * * charges that the defendant company was negligent in that it failed by and through its mine boss to visit and examine the roof of room No. 7, * * * every alternate day, ” etc. It thus appears that if the court erred in the above respect, the error was invited by appellant, and consequently it has no just ground of complaint. Besides, where possible, a reviewing court will, in construing pleadings, accept as correct, the theory adopted by the parties in the court below. Lake Erie, etc., R. Co. v. McFall (1905), 165 Ind. 574, 76 N. E. 400; 31 Cyc. 85. 10. Instruction No. 8 given by the court, among other things, contains the following statement: “Under the statute it is not only the duty of the mining boss to visit the working places in the mine at least every alternate day, but also to make an examination of them.” It is contended that the above is erroneous because the statute only requires the mine boss to visit and examine every alternate [607] day while the miners are, or should he, at work. Considered with reference to other instructions given, appellant was not harmed. In other instructions the jury was correctly informed as to visiting the working places, and here the court was directing the attention of the jury specifically to the further duty of the mine boss to make an examination of them. 11. Instructions Nos. 6, 7 and 9, given at appellee’s request, are claimed to be erroneous. While each of them may be subject to some criticism, it is apparent that appellant was not harmed by the giving of any one of them. 12. Appellant, by its requested instruction No. 5 sought to have the court inform the jury that by a traveling way in a coal mine is meant that way which the employes generally use in passing to and fro between their working places and the hoisting shaft, and that a roadway in the room of a mine, the purpose of which is only for the use of those employed to work in said room, is not a traveling way within the meaning of the statute. This instruction was refused, and the courts action is assailed as erroneous. The statute requires that the mining boss shall “see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work, cure taken down or carefully secured.” (Italics ours.) §8580 Bums 1908, supra. The above clause appeared in the mining act, as amended in 1897, except the italicised words thereof, which were added by the amendment of 1905. Acts 1905 p. 65. Acts 1897 p. 168. In Antioch Coal Co. v. Rockey, supra, it was said: “If for any reason it becomes impracticable to secure loose coal, slate or rocks overhead in the working place in the mine by means of timber or props, such loose coal, slate or rock should be removed before the miners are permitted to resume their work.” Inasmuch as props could not well be set in a travel way, the task of securing loose rock over [608] head by propping might present practical difficulties and it is presumed that for that reason the statute was so amended in 1905 as to require the loose rock, over travel ways,, to be taken down, unless they could, by practical means, be safely secured. The practical difficulty in the way of securing loose rock hanging over the travel way exists as well in the way through a room as in that connecting the room with the hoisting shaft. It was necessary for workmen to pass to and fro over the way in the room in controversy, both in moving the machines, and hauling the coal to the hoisting shaft. And while not so many workmen would pass over the way through the rooms, as over the other ways, we do not think that it was the intention of the legislature to limit the application of the statute as suggested in the requested instruction. The object of the statute was the protection of miners from the dangers incident to their employment, and the statute should not be narrowly construed. The court did not err in refusing the requested instruction. 13. It is claimed the court erred in permitting one Deuricker to testify that he and appellee had no duties to perform with reference to taking down the slate or stone which fell and injured appellee, because the statement was a mere conclusion. It is sufficient to say that appellant was not harmed by the testimony, for the fact was proved by other competent evidence, and was uneontroverted. Appellant contends the court erred in permitting appellee to testify that the place where he was injured was what is commonly called by the miners a traveling way. What we have already said with reference to instruction No. 5, requested by appellant, covers the ground of this objection. Other questions are presented in regard to the admission and exclusion of evidence, but no reversible error was committed with reference thereto. One of the reasons urged for [609] a new trial was based on the alleged misconduct of one of the jurors. Numerous affidavits and counter-affidavits were filed. The trial court found in favor of appellee. The finding wa's supported by sufficient evidence contained in the counter-affidavits. It is finally urged that the verdict of the jury is not supported by sufficient evidence. Without setting out its substance it is sufficient to say that there was proof of each material allegation of the complaint. The record discloses no reversible error. Judgment affirmed.