Imagens da página
PDF
ePub

But

Liens, Cent. Dig. § 211; Dec. Dig. § 151.*]
4. MECHANICS' LIENS (§ 122*)—SUBCONTRACT-
OR'S LIEN-NOTICE.

[Ed. Note.-For other cases, see Mechanics'

Where a subcontractor gives notice to the owner of his intent to file a lien, he must set forth in the notice the contract between him and the contractor, and a mere statement of a contract without setting out its terms is insufficient.

be done or furnished as the work progressed, | 3. MECHANICS' LIENS (§ 151*)-SUBCONTRACTbut it was a prerequisite, something required OR'S LIEN-SUFFICIENCY OF LIEN. in advance of the performance of the work before a valid lien can be filed is no part of the The notice to be filed by a subcontractor which it was to guarantee. Some six weeks lien, and all that need appear in the lien under passed after the signing of the agreement, Act June 4, 1901 (P. L. 437) § 11, cl. 11, is when and how the notice was filed. and no such bond was furnished by the contractor. The defendant company might well have refused permission to the contractor to enter upon the premises until he had given the security he had agreed to furnish. instead of standing sharply upon its rights in this respect, it indulged the plaintiff further by allowing him to make a start upon the work, at the same time warning him to file the bond within three days. This would have been ample time in which to procure and file the bond, if the financial condition of the plaintiff was sound or his credit good. But instead of procuring a bond with satisfactory sureties, as required by the agreement, the plaintiff finally offered, as a compliance with his obligation, the bond of a foreign corporation not authorized to do business in the state of Pennsylvania. Such a bond was of course unsatisfactory to the defendant company, and it refused to accept it, or to allow plaintiff to proceed further with the work. In so doing the defendant was acting clearly within its

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 165-170; Dec. Dig. § 122.*] Appeal from Court of Common Pleas, Allegheny County.

Action by James S. McVey and John McMurray, partners as the Iron City Heating Company, against Isaac Kaufmann and others. Verdict for plaintiffs, and defendants appeal. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

for appellants. Ambrose B. Reid, A. V. D. J. Rodgers McCreery and Robbin B. Wolf, Watterson, and H. F. McGrady, for appellees.

rights under the contract. Surely it was not obliged to run the risk of placing a large and important contract in the hands of an irresponsible contractor, who had failed to furnish the bond agreed upon. Under the admit-dent to their right to file it was that they had ted facts of the case I can see nothing which

should properly have been submitted to a jury. The result was to give to the plaintiff the profits of a contract which he never carried out in accordance with its terms, and for work which he never performed, and which he had no right to even attempt to perform

until he had furnished the bond.

I would reverse the judgment.

BROWN, J. The claim filed in this case is that of subcontractors. A condition prece

given Kaufmann Bros., the owners of the

building, written notice of their intention to file it, together with a sworn statement setting forth the contract under which they claimed, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last

work was done or materials were furnished. This is the requirement of section 8 of the

BROWN and ELKIN, JJ., concur in this act of June 4, 1901 (P. L. 434). The sixth dissent.

(223 Pa. 125)

MCVEY et al. v. KAUFMANN et al.

point presented by the defendants on the trial asked that a verdict be directed for them because the notice of the intention to file the lien was not in compliance with the statutory requirement. This was refused, and from the

(Supreme Court of Pennsylvania. Jan. 4, 1909.) judgment on the verdict for the plaintiffs the

1. MECHANICS' LIENS (§ 122*) SUBCONTRACTOR-REQUIREMENTS.

NOTICE BY

Under Act June 4, 1901 (P. L. 434) 8, a subcontractor to procure a lien must give the owners written notice of his intention to file it with a sworn statement of his contract, the amount due, the kind of labor or material furnished, and the date when the last work was done or material furnished.

defendants have appealed, alleging error in the court's refusal of their sixth point, because the sworn statement attached to the notice served upon them of the intention to file a lien did not set forth the contract under which the subcontractors claimed.

If the notice of the intention to file the lien

[Ed. Note. For other cases, see Mechanics' was defective, the appellants did not, by Liens, Dec. Dig. § 122.*]

pleading to the scire facias on it, waive their

2. MECHANICS' LIENS (§ 126*)-SUBCONTRACT-right to make defense on the trial that a con

OR'S LIEN-WAIVER OF NOTICE.

Where a notice of a subcontractor's lien was defective, that the owner pleaded to a scire facias on it is not a waiver of his right to defend on the ground that the condition as to notice was not complied with.

[Ed. Note. For other cases, see Mechanics' Liens, Dec. Dig. § 126.*1

dition of the right to file it had not been complied with. Though notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of

the lien is "when and how notice was given." These are the words of clause 11, § 11, Acts 1901; and in interpreting them we have said: "A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of section 8 are matters to be determined at the trial." Thirsk v. Evans, 211 Pa. 239, 60 Atl. 726. The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was no right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien.

ment for the defendants, n. o. v., was no compliance at all. Not even the contract price for what had been furnished was given. From all that the owners could have learned from the notice as to the contract between their contractor and the subcontractors the reference to it might as well have been omitted altogether. The evident purpose of the requirement that a subcontractor must set forth in his notice to the owner of the building the contract under which he claims is to enable the owner to know just what the rights of the claimant are, and to protect himself accordingly. If this contract had been to furnish labor and materials in consideration and payment of existing indebtedness of the subcontractors to the contractor, the owners could safely have disregarded the notice and settled with their contractor; or, if the amount claimed had been in excess of the price stipulated in the contract, the owners could have settled with their contractor, knowing that their building would not be liable for more than the contract price for the labor and materials furnished by the subcontractors. Other illustrations might be given of the wisdom of the Legislature in requiring that the contract of a subcontractor be set forth in his notice of an intention to file a lien, but they are not needed, for those who would enjoy the benefits of the mechanic's lien act can do so only by complying with its requirements. Westmoreland Guarantee Building & Loan Association v. Connor, 216 Pa. 543, 65 Atl. 1089; Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581, 67 Atl. 872.

The assignments of error are sustained, the judgment below is reversed, and is entered here for the defendants.

The sworn statement attached to the notice of the appellees of their intention to file their claim was in the following form: "Before me personally came James S. McVey, of the Iron City Heating Company, who signed the foregoing notice, and being by me duly sworn according to law did depose and say that the contract under which he claims is as follows: For work and labor done and material furnished in and about the construction of the Kaufmann building, corner of Diamond street and Cherry alley, Pittsburg, Pa. That the amount still due and owing to him under said contract is the sum of $3,314.40 with interest from November 10, 1904, which is made up as follows, to wit. [Here insert debts and items with credits if any.] Attached hereto find Exhibits A, B, C, D, E, and F, and made part hereof. That the kind of labor furnished was the pipes, fittings, and labor for connecting boilers for C. H. Bradley, Jr., & Co., the contractors for the furnishing and erecting of boilers in said Kaufmann building (the materials furnished), pipes and fittings and valves and the date when the last labor (or materials) was fur-(Supreme Court of Pennsylvania. Jan. 4, 1909.) nished was on the 10th day of November, 1904. James S. McVey. Sworn to and subscribed before me this 7th day of February, A. D. 1905. Geo. Johnston, Notary Public." Neither in the notice nor in the attached affidavit is the contract set forth under which the appellees claimed. Nothing can be gathered from them as to a contract between the subcontractors and the contractor except that there was one. The date of it is not given, not one of its terms is stated, and whether it was written or verbal no one can tell. The six exhibits are mere itemized bills made out

(223 Pa. 186)

BISKO v. BRAZNELL GAS COAL CO.

1. MASTER AND SERVANT (§ 118*)-INJURY TO SERVANT-MINING-FURNISHING SUPPLIES

AND MATERIALS.

Act May 15, 1893 (P. L. 63) art. 7, pro-
vides that the superintendent of a mine shall at
all times keep on hand at the mines a supply
of material necessary, to preserve the health
mine foreman.
and safety of the employés, as ordered by the
Held that, unless it appears
that a mine foreman has made a requisition for
materials, and it has been refused, or that the
ed to keep on hand the necessary materials or
owner or superintendent of such mine has fail-
supplies, there is no basis for an action against
the owner of the mine for failing to furnish
such supplies.

Servant, Cent. Dig. § 209; Dec. Dig. § 118;*
Mines and Minerals, Cent. Dig. § 219.]
2. MASTER AND SERVANT (§ 129*)—INJURIES
ΤΟ SERVANT - NEGLIGENCE PROXIMATE
CAUSE.

[Ed. Note.-For other cases, see Master and

to the contractor for the labor and materials furnished. Under the notice the appellees might have proved any kind of a contract with the contractor, and the notice of their contract, instead of being a substantial compliance with the statute, as the learned trial caused by an explosion of gas on the ground of A mine owner is not liable for injuries judge held in overruling the motion for judg- | negligence in failing to furnish proper materials,

unless it is shown that such neglect was the | plaintiff, a miner of some years' experience, cause of the injury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 260; Dec. Dig. § 129.*] 3. MASTER AND SERVANT (§ 217*)-INJURIES TO SERVANT-ASSUMPTION OF RISK.

to the service.

Where a coal miner knows that there is an accumulation of gas in a particular entry, and under the orders of the foreman goes there to repair a brattice, he assumes the risk incident [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 591; Dec. Dig. § 217.*] 4. MASTER AND SERVANT (8 241*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE.

Where a coal mine is so free from gas that lamps are safely used, but there is an accumulation of gas in a particular pocket, and a workman sent to repair a brattice approaches the pocket with an open light, he cannot recover for injuries received thereby, on an explosion of the gas thereby caused.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 757; Dec. Dig. § 241.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by Adam Bisko against the Braznell Gas Coal Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

J. S. Ferguson and Francis S. Bennett, for appellant. Joseph Stadtfeld, for appellee.

was employed by the defendant company, and began to work in this mine on February 5, 1906. He continued his employment there until the night of March 19, 1906, when he was injured by a gas explosion in butt entry No. 2. On that evening he entered the mine and began work about 7 o'clock in butt entry No. 3. He used a punching machine in mining which was operated by compressed air. After working two or three hours, he was compelled to quit by reason of the insufficiency of the air in the compressor to operate the machine. He and three other workmen were then directed by the assistant foreman to repair certain brattice work in butt entry No. 2. It appears that there had been a break in the roof of butt entry No. 2, and that it was necessary to brattice off the place so as to protect the mine from any gas in the pocket or hole which had been made in the roof. The plaintiff testified that the brattice work "is constructed so as to direct

the air, or ventilation, to go past this place where the gas may accumulate, and drive out that gas with the ventilation." Just as the plaintiff was commencing to repair the brattice work, the gas in the hole or pocket in the roof was ignited by the open lamp which the plaintiff had in his hand, and an explosion followed, resulting in severe injuries to the plaintiff. The statement avers that the defendant "was negligent in not providing proper and sufficient means to carry away the accumulation of gas, and to provide proper ventilation, and means of ventilation in said mine, and through its negligence and carelessness in that behalf an explosion occurred on March 19, 1906, and as a result thereof plaintiff was thereby permanently injured." On the trial of the cause the plaintiff contended that the defendant was negligent (1) in the failure to supply materials necessary for ventilating the mine; (2) in not maintaining a safe working place for the plaintiff; (3) by reason of inadequate means of ventilation. The learned judge submitted the case to the jury, and a verdict was rendered for the plaintiff. Judgment was entered on the verdict, and the defendant company has taken this appeal.

MESTREZAT, J. This is an action of trespass to recover damages for injuries which the plaintiff, an employé, alleges he sustained by reason of the negligence of his employer, the defendant company. The defendant is the owner of certain coal property at Bentleysville, Washington county, and in the fall and winter of 1905, for the purpose of operating the coal, put down two shafts, 185 feet apart, and connected them at the bottom by a main or base entry. From this entry four butt entries were driven into the coal parallel to each other, and for a distance of about 200 feet. There was a cut through between entries Nos. 1 and 2, and another cut through between entries Nos. 2 and 3. On the surface, near one of the shafts, there were three boilers, which furnished steam for the hoisting apparatus, pumping water, running an air compressor, and for a jet at the 1. The act of May 15, 1893 (P. L. 52; 3 bottom of the shaft, which aided in ventilat- Purdon's Dig. [13th Ed.] p. 2591), by article ing the mine. The air compressor operated 7, provides as follows: "It shall be the duty the punching machines used in mining the of the superintendent, on behalf and at the coal. There were no fans used in ventilating expense of the operator, to keep on hand at the mine. The air in the mine was kept in the mines at all times, a full supply of all motion by the steam jet, and was directed materials and supplies required to preserve through the mine in the ordinary way by the health and safety of the employés as orbrattice work. At the time of the accident dered by the mine foreman and required by the defendant company had in its employ a this act." It is claimed by the plaintiff, and superintendent, a mine foreman, and an as- he testified, that two weeks before the acclsistant foreman, who also acted as fire boss. dent he had notified the superintendent that The foreman and his assistant had been duly the roof in butt entry No. 2 should be sup certified, and their competency and that of ported by a post, and the place where the fall the superintendent was not questioned. The' had occurred should be bratticed off; that

of the plaintiff's testimony is that it shows that the witness told the superintendent of the necessity for supports for the roof and brattice in butt entry No. 2, and that the superintendent promised to have the necessary work done to put the mine in proper shape at that place. The plaintiff also testified that he heard the mine foreman tell the superintendent that the roof was bad and ought to be fixed, but there is not a particle of evidence tending to show that the foreman made any demand, at any time, upon the superintendent for any material with which to do the work, or for material for any of the workmen to construct or repair a brattice at that point.

he also heard the foreman tell the superin- | In the case at bar the most that can be said tendent that the roof was in a bad condition, and that it ought to be fixed; that the men were afraid to go into the place; and that the superintendent promised to have it attended to. The plaintiff further testified that he could find no timber or other material in the mine with which to repair the brattice work. He admitted that he didn't know whether there was any material for that purpose on the outside of the mine. On the other hand, the uncontradicted testimony of the defendant company showed that there was sufficient material of all kinds on the ground near the mouth of the mine for any purpose for which it would be needed in the mine. It was contended by the plaintiff that there should have been a supply room in the mine, where materials were kept for use in the construction of brattices and other work, and the superintendent testified that it was customary to have a supply room in a developed, but not an undeveloped, mine, such as defendant's mine.

Article 6 of the act of May 15, 1893, imposes upon the mine foreman, who is required to be a "competent and practical inside overseer," the duty of keeping a careful watch over the ventilating apparatus, timbers, and drainage, seeing that, as excavations advance, slate and rock overhead are taken down, or carefully secured against falling, and that "sufficient props, caps and timbers of suitable size are sent into the mine when required," and, further, that "such props, caps and timbers shall be delivered in the working places of the mine." The article also provides: "Every workman in want of props or timbers and cap pieces shall notify the mine foreman or his assistant of the fact at least one day in advance, giving the length and number of props or timbers and cap pieces required, but in cases of emergency the timbers may be ordered immediately upon the discovery of any danger." The rules of the mine are required to designate the place and manner of leaving orders for the timber.

It will be observed that, while the act of assembly requires the owner or superintendent to furnish the necessary materials or supplies for use in the mine, they are only to be sent into the mine "as ordered by the mine foreman." The mine foreman acts at the instance of the workman, who, if he needs any material, is to notify the foreman or his assistant. Unless, therefore, it is made to appear that the mine foreman has made a requisition for materials on the owner or superintendent, and it has been refused, or it is made to appear that the owner or superintendent has failed "to keep on hand at the mines" the necessary materials or supplies, there can be no basis for a charge of negligence in failing to furnish supplies under the act of assembly which will support

But if we assume that there was not an adequate supply of material on the surface or in the mine for the purpose of repairing the brattice, it cannot affect this case, or impose liability upon the defendant company, for the reason that it was not the cause of the plaintiff's injuries. He was employed as a miner, and was engaged in mining coal in butt entry No. 3, and not in butt entry No. 2, where the roof fell and the explosion occurred. Had he been engaged in mining coal in butt entry No. 3, and the explosion in butt entry No. 2 had injured him, there might be some ground for the contention that the defendant company was liable for not furnishing an adequate supply of materials for constructing or repairing the brattice. But at the time plaintiff was injured he was engaged in repairing the brattice which was to be used in diluting or carrying off any gas which had accumulated in the pocket or hole made by the fall in the roof of No. 2 entry. The lack of supplies or material or tools necessary in the repair of the brattice did not cause the plaintiff's injuries; they resulted from the gas in the pocket or hole in the roof being ignited by the blaze from the plaintiff's open lamp. If the mine had been full of material, it would not have prevented the accident. There was therefore a failure to connect any alleged negligence on the part of the company in furnishing proper materials with the injury caused to the plaintiff; and hence, though there was neglect to furnish the materials, it will not support an action against the defendant.

2. It is also contended that the defendant was negligent in not furnishing the plaintiff a safe place in which to work. The place assigned him to repair the brattice was near the hole in the roof of butt entry No. 2. It is not alleged, at least the evidence does not show, that any other part of the mine was unsafe or dangerous at that time. While it does appear that during the sinking of one of the shafts an explosion occurred resulting in loss of life, and further that gas had frequently been detected in the mine, yet there was no evidence in the case that would war

he was to work in repairing the brattice, and therefore he assumed the risk incident to the service. His employment was extrahazardous by reason of the place in which the work had to be done, and, this being obvious, as well to the plaintiff as to others, he assumed the danger. 20 Am. & Eng. Ency. of Law (2d Ed.) 119. In Derr v. Lehigh Valley Railroad Company, 158 Pa. 365, 27 Atl. 1002, 38 Am. St. Rep. 848, the plaintiff's husband, a locomotive engineer, was killed by the de railment of his engine running into a snowdrift in a deep cut. The deceased had charge of an engine which had been sent out to remove snowdrifts from cuts. The manner in which the train was made up, equipped, and manned showed the purpose for which it was intended. It was held that the risks involved in the work of opening the road were intelligently assumed by the deceased, and there could be no recovery for his death.

the accident, any other part of the mine was in which he says he notified the superintenddangerous by reason of the accumulation of ent, and heard the mine foreman tell him, gas. As said by the learned judge in his of the fall and the necessity for constructing charge: "The plaintiff himself said as to the or repairing a brattice at the place of the ventilation of the mine he had no reason to fall. The plaintiff's work was mining in complain that night. He expressly stated butt entry No. 3, but he knew the necessity that the air was all right in the mine that of having butt entry No. 2 clear of noxious night. He said there was a lack of air for gases, and hence the notice he gave the authe air compressor, not enough to operate thorities to brattice the place, so that the the air compressor, but, so far as breathing gas might be removed by the air currents in purposes were concerned, the air was all the mine. Without this brattice he, as an right in his entry, and so far as we know experienced miner, knew the currents of air the air was sufficient for breathing purposes would not penetrate that part of the mine, in every part of the mine except this particu- notwithstanding the complete ventilation of lar point where the accident happened." every other part of the mine. We must From the evidence it is clear that at the time therefore conclude that the plaintiff knew the of the accident the mine was properly venti- | hazardous character of the place in which lated, and in no other part of the mine was gas present in sufficient quantities to render it dangerous to persons employed in the mine. The mine foreman, as required by the act of 1893, officially reported, on the day of the accident: "The mine is safe and healthy." If, therefore, the place at which the plaintiff was at work was dangerous, it was made so by gas accumulating in the hole of the roof, which the air currents through the mine would not dilute or carry off. It was for the very purpose of controlling the air currents in the mine, so that they would carry off any accumulation of gas in this hole, that the brattice work was being repaired by the plaintiff. Without the assistance of the brattice the gas in the hole could not be reached by the air currents, and it would remain there undiluted and render the entry unsafe for mining. The place at which the plaintiff was directed to work, therefore, was not regarded as safe, and he was sent there to construct the brattice in order to make it safe. Provision is made for this very contingency by section 6, art. 6, of the act of 1893, which provides that "no person shall be directed or permitted to work in an unsafe place unless it be for the purpose of making it safe." The place was not unsafe by reason of anything the defendant company did or failed to do. If the brattice had been in good repair, so as to perform the service required of it, there would have been no occasion for the plaintiff to have been at work there; the place would have been safe. When, however, it became necessary, by reason of the fall, to procure good ventilation in that entry, and thereby remove the noxious gases accumulated in the pocket or hole in the roof, the plaintiff and his assistants were sent to perform this work. It was a dangerous place, but the plaintiff and his fellow laborers who were with him knew the danger that might be encountered. It is true the plaintiff says he knew of no gas in the mine, but, being a miner of some experience, he manifestly knew of the fall in the roof, and knew why the brattice was needed at that place. This

In Finalyson v. Utica Mining & Milling Company, 67 Fed. 507, 14 C. C. A. 492, a workman in a mine, who was engaged in timbering an entry, was killed by the fall of material which had resisted the efforts of the foreman and other workmen to dislodge it with picks, but which was loosened by drilling by those employés. A judgment for the defendant was affirmed by the United States Circuit Court of Appeals; and in the opinion it is said that the rule that an employer must provide a reasonably safe place for his employé to work "cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe. * * The servant assumes the ordinary risks and dangers of his employment that are known to him by the exercise of ordinary care and foresight. When he engages in the work of making a place that is known to be dangerous safe, or in a work that in its progress necessarily changes the character for safety of a place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place,

« AnteriorContinuar »