
    LIABILITY FOR WRONGFUL DEATH UNDER THE MINERS’ CODE.
    Circuit Court of Jefferson County.
    Elizabeth Rankine, Administratrix of Henry Rankine, v. Pennsylvania & Ohio Coal Company.
    Decided, December Term, 1911.
    
      Mines and Mining — Construction of the Miners’ Code — With Reference to Actions for Wrongful Death of Employes — Sections 972 and 10770, et seq.
    
    Where the death of a person employed in a mine is occasioned by acts of negligence on the part of his employer which are not “willful,” hut are such as would have entitled the injured person to recover if he had lived, an action to recover damages for such wrongful death may be maintained by the administratrix under the provisions of Section 10770, et seq., General Code, as amended 101 O. L., 198.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   This action was brought by Elizabeth Rankine, as administratrix of Henry Rankine, deceased, for the benefit of his widow and children to recover damages for the death of said Henry Rankine from injuries received in the defendant’s mine. Plaintiff recovered a judgment in the common pleas court. A motion for new trial was overruled and thereupon the defendant filed a motion in arrest of judgment and for judgment notwithstanding the verdict. These motions were both sustained and judgment entered for the defendant, and it is to reverse that judgment that error is prosecuted in this court.

The action having been brought by the administratrix for the benefit of the widow and children of the decedent the common pleas court rendered the judgment non otstante veredicto upon the theory that under the provision of Section 972, General Code, as amended 101 O. L., 52-86, the action could only be maintained by the widow and lineal heirs, and not' by the administratrix, and that for injuries occurring in a mine resulting in death to an employe said Section 972 is exclusive and furnishes the only remedy.. The petition in this case does not state any act of willful negligence, but does allege several negligent acts which would entitle the plaintiff to recover unless the right of the plaintiff to recover is limited by Section 972, General Code, to acts of willful negligence.

By the act of April 5, 1910, known as the “mining code,” Sections 878-898, General Code, inclusive, were amended and their provisions very much enlarged. Section 972 provides:

“In case of an injury to a person or property occasioned by a violation of any of the provisions of this act, or any willful failure to comply with any provision of this act by any owner, lessee dr agent of a mine, a right of action shall accrue to the person injured for any direct damage he may have sustained thereby. In case of loss of life by reason of such willful neglect or failure a right of action shall accrue to the widow and lineal heirs of.the person whose life hás been lost for like recovery of damages.”

The right to recover for a wrongful death is statutory. Did the Legislature intend by this section to limit the right to recover for the wrongful death of a person employed in a mine to cases where the negligence complained of was willful, and to limit the right to recover to the widow and lineal heirs in all cases? By Sections 10770, et seq., General Code, where the death of a person is caused by a wrongful act a recovery may be had in the name of the administrator for the benefit of the widow and children, or if there be no widow and.children then the father and mother, brothers and sisters, or the next of kin. This statute is general, and applies to all cases of wrongful death, and will apply to the case of a miner unless the language of 972 is so restricted as to limit all recoveries.for wrongful death in mines to the widow and lineal heirs, and to eases where the negligent acts causing death a.re willful.

The “miners code,” of which Section 972 is a part, is very comprehensive in its terms and deals not only with the rights, duties and liabilities of the mine owners and operators, and their employes toward each other, but it deals also with the obligations and duties of the owners of mines towards private citizens whose rights may be affected by the operation of mines, and with the rights and duties existing between the mine owners and the public generally. Any person injured in person or property by a violation of the provisions of the act, or by any willful failure to comply with any of its provisions, may recover damages. It is perfectly clear that the right of an injured person to recove'r is not limited to a willful failure to comply with the provisions of the act, but he may recover for any violation thereof by which he is injured. It hardly seems consistent with a just and reasonable interpretation of this act to hold that an employe in a mine may recover for an injury if he lives, if the injury be the re. suit of negligence which is not “willful” but such as would entitle him to recover under the common law, but if he loses his life no recovery can be had unless the negligent act which resulted in his death is “willful.” Can we say that the Legislature intended to take away from a class of persons coming under the' provisions of the miner’s code rights which are granted and secured to all other persons, and to make the right to recover in their case for wrongful death depend purely upon the ground of willfulness, and deprive them of the right to recover for all other acts of negligence for which all other classes of persons may recover. This certainly would be a discrimination against a class which we do not think the Legislature intended to make, and we ban not put such an interpretation upon the law unless its provisions plainly require it. That the mining code was intended to cover .all cases which might arise between miners and their employes, and to fix the basis of recovery where such employes were injured, whether death results from the injury or not, we do not doubt. Having been specifically enacted as a code of laws relating exclusively to the operation of mines, and defining as it does the rights, duties, and obligations, of the mine owners and employes toward each other, makes it clear enough that so far as it does specifically define those duties and obligations, and provides specific remedies for violation thereof the remedies provided must be followed.

Where death is caused by a willful failure to comply with the provisions of the act, it would seem that the right to recover is exclusive in the widow and lineal heirs. The provision is “ a right ■of action shall accrue to the widow and lineal heirs of the person whose life h'as been lost.” If the right of action “accrues” to the widow and lineal heirs, then it follows that the action must be in the name of the party in interest, that is, the widow and lineal heirs. A determination of this question is not necessary to a decision of the question before us, and speaking for myself alone I think it may be doubtful, in view of the provisions of the “Norris Act,” whether the willful clause is exclusive, but whether it is or not it does not follow that the widow and lineal heirs are the proper parties to sue and recover in case the negligent act or acts causing death are not willful but are such acts as would have entitled the party injured to recover if he had lived. Section 972, General Code, must be construed in connection with Section 10770, et seq., as amended, 101 Ohio Laws, 198. Section 972 contains no provision relative to the amount which may be recovered for a wrongful death in any case. This must be determined by the general provisions of Section 10772. The “Norris Act,” so-called, was passed at the same session of the General Assembly as the mining code, and Sections 10770, et seq., as amended are a part of that act. That act relates to all classes of employes, and by its express terms it included all actions for wrongful death. The provisions relating to superior servants, fellow-servants, assumed risk, contributory negligence, etc., apply as well to miners as to any other class of employes. Original Section 10770, which created a remedy in case of wrongful death, was repealed and re-enacted as part of the Norris act without change except that the words “in every such case’’ were omitted. The omitted words served no purpose in the statute unless it was to encumber it' with superfluous language, and their omission does not change the meaning of the section in the least. The reenactment of Section 10770 as part of the Norris act is significant, and would seem to indicate an. intention on the part of the Legislature that every action for wrongful death should be governed by its provisions. Certainly all such actions are governed by its provisions unless they are clearly excepted from its operation by some other law, and the provisions of that section would govern in this case unless they are excepted therefrom by the provision of Section 972.

We have not concerned ourselves with the meaning of the word “willful” as used in Section 972. We see no occasion for extending its application to all cases of omission to perform a duty, but take it in its ordinary meaning as indicating a purposeful omission to • comply with some provision of the statute. When such is the case and death results the right of action accrues to the widow and lineal heirs. We think, however, that this is not the case where death results from an act of negligence which is not willful. In such case the action should be maintained by the administrator under the provisions of Section 10770, et seq., as in other cases.  