FULTON v. WILMINGTON STAR MIN. CO., 133 F. 193

GROSSCUP, Circuit Judge. The action in the court below was to recover compensation for the loss occasioned to the plaintiff in error, by the death of her husband, Samuel Fulton, killed by an explosion of gas, January 27th, 1901, in the mines belonging to the defendant in error. The action was brought originally in the Circuit Court of Grundy County, Illinois, but was removed to the United States Circuit Court by the defendant in error, a citizen of the State of Wisconsin, the plaintiff in error being a citizen of Illinois.

At the conclusion of the plaintiff in error’s testimony, defendant in error moved for a verdict, and thereupon a verdict was, by direction of the court, entered for the defendant in error. To this ruling the plaintiff in error excepted; and on this is based the principal assignment of error. The Wilmington Star Mining Company, at the time when Fulton lost his life, owned and operated two coal mines near Coal City, in Grundy County, Illinois. The explosion occurred in the mine known as “Mine No. 6.” Into this mine two shafts extended, one used for hoisting purposes, and the other intended as an air shaft.

From the bottom of the former, four roadways diverged east, west, north and south, each running to the face of the mine, where the coal was being excavated. There were in all, six or eight rooms, along and at the end of these roadways, in which the work of excavation was going on. Fulton lost his life on a Sunday. The mine was not, on that day, in operation, and had not been worked during the preceding night. Fulton had descended on this Sunday, with one Wilson, the company’s mine manager, to put in some switch tracks in the west roadway.

Other men, by the direction of Wilson, were in the mine also, to put in some air boxes in aid of ventilation. Fulton and Wilson descended together. The fan shaft had not been operated since about half past four the preceding afternoon. Wilson undertook to start the fan; but there being no means to turn the necessary valve, except by the use of monkey wrench, and a monkey wrench not being in the mine, Wilson ascended for that implement, and then came back; Fulton in the meantime remaining at the foot of the shaft. Wilson knew that when the fan was not in operation gas gathered in the mine.

He testifies that having started the fan, he told Fulton not to hurry up — to take his time, and let the fan clear out the gas— after which he, Wilson, “would run up with the lamp, and see what it was like.” Flaving thus spoken, according to his evidence, Wilson went immediately into the south roadway, where the other men were at work, Fulton and one Schmitz proceeding to the point in the west roadway where Fulton’s work was to be done. All at once, without warning, as Schmitz testifies, the explosion of gas occurred, Schmitz saving himself by throwing himself down, and covering his mouth with his hands.

But Fulton was killed. Plaintiff in error accepts Wilson’s testimony to the extent that it shows that Wilson knew there was gas in the west roadway, but denies, and on the trial introduced evidence in our opinion tending to support such denial, that Wilson told Fulton to remain where he was. The insistence of plaintiff in error is, that the testimony of Schmitz taken by deposition, tended to show that Wilson ordered Fulton and Schmitz to go ahead, and not to wait. That testimony is as follows: Edward Pierard’s duty in the mine was to watch the gas, chase away the gas. I saw him go down that morning before I did.

Q. State whether Mr: Wilson, the mine manager, or Mr. Pierard, the fire boss, told you to wait and not go in the place where you were going with Sam Fulton with the car. Objection by defendant as immaterial. Sustained. To which ruling of the Court, the plaintiff by her counsel then and there duly excepted. Q. While you and Wilson and Fulton were at the bottom' of the shaft before you pushed the car, did Mr. Wilson tell Fulton or you to wait until the gas was out? Objected to by defendant as leading immaterial and incompetent on redirect examination. Objection sustained. Q. What did Wilson say to Fulton? A.

Boss no tell to wait, but told to go. Q. State whether or not Wilson the boss said anything else to you and Fulton except to go? Objection by defendant as immaterial: Q. What statement, if any, was made to Fulton by Wilson? A. Just tell me to go, that all. Schmitz testifies further, that when he and Fulton started toward the west roadway, Wilson was so near the car, that Schmitz had to push him bade with his hands, so the rails would not touch him.

It is not our province, on a record such as this, to determine whether Wilson told the whole truth, or only part of the truth — whether Wilson, knowing that under the circumstances gas would gather in the west roadway, asked Fulton to remain until the fan had removed it, or, spite of that knowledge, ordered Fulton into the roadway at once. That is a question of fact for the jury. The question for us to determine is, whether assuming that Wilson ordered Fulton into the roadway when he knew, or ought to have known that gas had gathered there, the defendant in error was, notwithstanding, entitled to a verdict.

The act of the General Assembly of the State of Illinois, in force July 1st, 1899 (Laws 1899, p. 317, § 19), providing for the health and safety of persons employed in coal mines, provides among other things that “Throughout every coal mine there shall he maintained currents of fresh air sufficient for the health and safety of all men and animals employed therein, and such ventilation shall be produced by a fan, or some other artificial means”; also, “For any injury to person or property, occasioned by any wilful violations of tbis act, or wilful failure to comply with any of its provisions, a right of action should accrue to the party injured for any direct damages sustained thereby; and, in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives, not to exceed the sum of $5,000.” Laws 1899, p. 325, § 33.

Plaintiff in error’s declaration counts upon this duty of defendant in error to maintain, throughout the mine, currents of fresh air; and avers, that in the case of Fulton, it was wilfully violated; whereby a right of action for the loss of his life accrued to the plaintiff in error. In Odin Coal Company v. Fffie Denman, 185 Ill. 413, 57 N. E. 192, 76 Am. St. Rep. 45, the Supreme Court of Illinois had occasion to construe the statute of 1889, and the meaning to be given to the word “wilful” as used in that statute.

The case grew out of a coal miner having been killed by falling down a shaft at the top of which the company had failed to maintain a sufficient light, as required by the act. Construing the word “wilful” as used in the portion of the act giving a civil cause of action, the court said: “The appellant company stood charged with knowledge of the provisions of the law, and with the duty of complying therewith. * * * The omission was not through mere inadvertence, but was intentional.

There was no evil intent operating to induce the failure, but that element is not a necessary ingredient of willfullness within the correct meaning of the word ‘willful’ as employed in this statute. As used in criminal and penal statutes, the word willful has frequently been interpreted to mean, not merely a voluntary act, but

an act committed with evil intent, etc. The statute here involved is not a penal statute. The recovery awarded is not a penalty in the nature of a fine or a forfeiture, nor is it awarded as a punishment, but is confined by the express terms of Sec. 14 of said Chap. 93 to ‘the direct damage sustained’ by reason of the omission or failure of which complaint is made.

Compensation for injuries inflicted — not punishment — is the ground of recovery. ‘Willful’ is a word of familiar use in every branch of law, and although in some branches of law it may have a special meaning, it generally as used in courts of law, implies nothing blamable, but merely, that the person of whose act or default the expression is used is a free agent and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent. 29 Am. Eng. Ency. of Law, 113.

An act consciously omitted is willfully omitted, in the meaning of the word ‘willful’ as used in these enactments of our legislature relative to the duty of mine owners. In Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131, we said (page 502, 181 Ill., page 134, 55 N. E.): ‘Where an owner, operator or manager, so constructs or equips his mine, that he lcnoioingly operates it without conforming to the provisions of this act, he willfully disregards its provisions and willfully disregards the safety of miners employed therein.’ ” Following this

interpretation of the act, it is plain that the question of fact in the case was, whether Wilson, mine manag'er for the company, directed Fulton to remain where he was until the gas had been blown out, or whether, conscious at the time that the current of fresh air required by the statute was not then being maintained, Wilson directed Fulton, notwithstanding such condition, to go into the west roadway of the mine. Counsel for defendant in error insists (

a) that assuming that Wilson gave the direction claimed, Fulton having knowledge himself of the presence of gas in the roadway, was guilty of contributory negligence— even a wilful violation of the statute — in obeying the direction of Wilson ; and (

b) the company was not liable for the negligence or default of Wilson, because under the statute, the company had no choice in the employment of mine masters, except from those who had first passed a satisfactory examination as provided in the act of 1899. Contributory negligence on the part of the injured, as an exemption from what would otherwise be the liability of the employer for injury caused by his negligence, is a rule of the common law; but a rule within the competency of the legislature to change.

No question is raised but that in all actions for personal injuries the legislature might, if it saw fit, remove by statute, contributory negligence as a defense. The act of 1899 is an Illinois act that has been construed by the Illinois Supreme Court. Under the authority of Carterville Coal Company v. Abbott, 181 Ill. 496, 55 N. E. 131, the act was intended to create civil liability to which contributory negligence, upon the part of the injured, would not be a defense.

We might not, were the case here one of first impression, take the same view of what the legislature meant; but we feel ourselves bound to follow the construction given the statute by the Supreme Court of the state. All question of contributory negligence is thus taken out of the case. Paragraph (

d) Section 7, of the act of 1899 (page 308) provides: “Era- Mine Managers.

Persons coming before tbe board for certificates of competency as mine managers must produce evidence satisfactory to the board that they are citizens of this State, at least twenty-four years of age, that they have had at least four years of practical mining experience, and that they are men of good repute and temperate habits; they must also submit to and satisfactorily pass such an examination as to their experience in mines and in the management of men, their knowledge of mine machinery and appliances, the use of surveying and other instruments, the properties of mine gases, the principles of ventilation and the specific duties and responsibilities of mine managers, as the board shall see fit to inrpose”; and paragraph (

e) of

Section 8 (page 309) provides: “Unlawful to employ other than Certified Mine Managers.

It shall be unlawful for the operator of any coal mine to employ, or suffer to serve, as mine manager at his mine, any person who does not hold a certificate of competency issued by a duly authorized Board of Examiners of this State: Provided, that whenever any exigency arises by which it is impossible for any operator to secure the immediate services of a certificated mine manager, he may place any trustworthy and experienced man, subject to the approval of the State inspector of the district, in charge of his mine, to act as temporary mine manager for a period not exceeding thirty days.” Because the selection of a mine manager is thus restricted to a class of men who have passed an examination — cutting off from employment by the proprietor, the whole body of the population who otherwise would be eligible — it is urged upon us, either that the legislature meant to exempt the employer from liability for the defaults of such mine manager, or that the act, to the extent that it compels a selection from such class, at the same time holding the owner liable for defaults arising therefrom, is unconstitutional; and in this connection Durkin v.

Kingston Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801; Homer Ramsdell Company v. La Campagnie Generale TransAtlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155; Crisp v. The United States, etc., Co. (D. C.) 124 Fed. 748, and other cases, are cited. Some of these cases were under the pilotage laws, requiring that a ship nearing port, should take on the first pilot who hailed the vessel, or be liable for full compensation for such pilot. The ship master’s choice was thus limited, not to a class, but to an individual.

This difference creates a substantial distinction between those cases and the case under consideration. The Pennsylvania cases we are unwilling to follow. The authority of Illinois is against them. Consolidated Coal Company of St. Louis v. Frank Seniger, 179 Ill. 370, 53 N. E. 733; Riverton Coal Company v. John E. Shepherd, 207 Ill. 395, 69 N. E. 921; as also the substantial considerations underlying the act. The Illinois act was passed under a mandate of the constitution of Illinois of 1870 (article 4, § 29), making it the duty of the legislature to pass laws for the protection of operative miners.

It grew out of the public’s wish that every precaution should be taken against the unusual hazards and dangers incident to the inhabitancy of mines. It was intended, and intended rightly, to protect with all known expedients, every person whose occupation required him to labor in these subterranean rooms and roadways. The requirements imposed upon the owner are not unnecessarily numerous, strict, or otherwise burdensome.

If it be not unreasonable, as certainly it is not, that mine inspectors, mine examiners, and mine managers be competent men, it is equally not unreasonable that they be able to prove by examinations as provided for, the possession of such competency.

The restriction on the owner limits him, it is true, to selection from a class; but in practice, if the law be faithfully carried out, the class will include all the available men competent; so that, in its practical outcome, the act of 1899 simply requires that the owner’s mine manager shall be a competent man, his competency to be determined according to standards fixed by the state authority; and within this area of proven competency — and the spirit of the common law gave no larger area — the owner is at liberty to employ and discharge as he chooses.

For the reason then that a question of fact, material to the issue and fairly presented by the evidence, was erroneously taken from the jury, the judgment below must be reversed.