
    DEATH — MINES AND MINING.
    [Jefferson (7th) Circuit Court,
    December 20, 1911.]
    Pollock, Metcalfe and Norris, JJ.
    
       Elizabeth Rankine, Admrx. v. Pennsylvania & Ohio Coal Co.
    Administratrix of Employe in Mine may Maintain Action for Death by Wrongful Act of Employer.
    An action for damages for wrongful death of a person employed in a mine, occasioned by negligent, though not “willful” acts on the part of his • employer, such as would have entitled him to recover if living, may be maintained by his administratrix by virtue of Gen. Code 10770, as amended 101 O. L. 198.
    [Syllabus approved by the court.]
    Error, to common pleas court.
    
      Ershine & Smith, for plaintiff in error.
    
      Blandin, Hodgsett & Ginn and Mansfield & Merryman, for defendant in error.
    
      
      Affirmed, no op., Ohio & Pennsylvania Co. v. Rankine, 87 O. S. 000; 58 Bull. 155.
    
   METCALFE, J.

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 obstante veredicto upon the theory that under the provisions of Gen. Code 972, as amended 101 O. L. 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 Gen. Code 972 is exclusive and furnishes the only remedy. The petition in- this ease does not state any act of willful negligence, but does allege several negligent acts which would entitle the plaintiff to, recover unless such right to recover is limited by Gen. Code.972, to acts of willful negligence.

By the act. of April 5, 1910, 101 O. L. 86, known as the “mining code,’.’ Gen. Code 878-898, inclusive, were amended and their provisions very much enlarged. Gen. Code 972 provides :

“In case of an injury to persons 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 or 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 has 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 Gen. Code 10770, et seq., where the death of a person is caused by a wrongful act a recovers- 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 Gen. Code 972 is so restricted as to limit all recoveries for wrongful death in mines to the widow and lineal heirs, and to cases where the negligent acts causing death are willful.

The “miners code,” of which Gen. Code 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 fhe 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 recover 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 result 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 can 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 mine owners 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 has 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 ease the negligent act or acts causing death are not willful but aré such acts as would have entitled the party injured to recover if he had lived. Gen. Code 972 must be construed in connection with Gen. Code 10770, et seq., as amended, 101 O. L. 198. Gen. Code 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 Gen. Code 10772. The “Norris act,” so-called, was passed at the same session of the general assembly as the mining code, and Gen. Code 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 Gen. Code 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 Gen. Code 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 Gen. Code 972.

We have not concerned ourselves with the meaning of the word “willful” as used in Gen. Code 972. We see no occasion for extending its application to gil cases of omission to perform a duty, but take it in its ordinary meaning as indiegting a purposeful omission to comply with some provision of the statute. When such is the ease and death results th'e 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 Gen. Code 10770, et seep, as in other cases.

Pollock and Norris, JJ., concur.  