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quantum meruit, when the services are received by him or the contract is ratified by the employer; 1 yet an employee cannot recover additional remuneration, merely because he has performed more services than contracted for, unless there is an obligation on the part of the employer to pay him additionally for the extra services performed. But one who is employed for a certain length of time, if authorized to perform work beyond the general scope of his employment, may recover from the employer for the services so performed, even though there was no agreement to pay therefor, if the work performed was expressly authorized by the employer. Except where the employee is prevented from completing his contract by the act of God, the public enemy, the law, or the employer, he cannot recover under an entire contract, until he can show a full performance of the same, but unless the services are performed under an entire contract, the full performance of the contract would not be necessary before the employee could recover, for he is entitled to remuneration, even though he has only partially bestowed the services stipulated for.5

4

In

ing after expiration of contract is presumed to be at same wages. galls v. Allen, 33 Ill. App. 458; Adams v. Fitzpatrick, 125 N. Y. 124. But no services can be recovered from a mine owner for work rendered his independent contractor. Fairfield v. Wyoming &c. Coal Co., 21 Atl. R. 874.

1 In such case a recovery can be had regardless of whether the service was of value. Mooney v. York Iron Co., 82 Mich. 263.

2 Bartlett v. Grand Rapids &c. Co., 82 Mich. 658.

3 Singer &c. Co. v. Rohn, 132 U. S. 518; 33 L. Ed. 440; 10 Sup. Ct. Rep. 175; Thompson v. Detroit &c. Copper Co., 80 Mich. 422.

4 Nor in indebitatis assumpsit. St. Joe Iron Co. v. Halverson, 48 Mo. App. 383. And see, as to necessity for performance, generally, Bish. Con., §§ 577-609, and cases cited.

5 Yates v. Ballentine, 56 Mo. 530; Williams v. Porter, 51 Mo. 441. In many mining States statutes have been passed regulating the time and manner of payment of mine employees, and prescribing penalties for

In all

§ 389. Owner should furnish safe machinery. vocations where machinery is in use and which are attendant with any risk, the owner or employer is responsible for any injury that an employee may receive by reason of the

violations thereof, but such statutes are held unconstitutional by the courts, especially when they go to the extreme adopted by the Missouri legislature, where all contracts of mine employees are made void unless by the terms thereof they are to be paid at least every fifteen days, and all mine employers failing to pay their employees according to the terms of the statute are made liable in double the sum due, for such statutes, aside from being unreasonable discriminations in the way of legislative tutelage, are manifest limitations upon the citizen's right to contract. See State v. Loomis, 115 Mo. 307; State v. Goodwill, 33 W. Va. 179–188. See Laws Mo. for 1891, p. 183. See the late case of Braceville Coal Co. v. People (Ill.), 37 C. L. J. 409; also Frorer Case, 31 N. E. 395. And for full discussion of the question, and collection of authorities, see 37 C. L. J. 409; Millett v. People, 117 Ill. 294; 7 N. E. 631; distinguished, Ramsey v. People, 32 N. E. 364; Frorer v. Same, 366. Contra, Hancock v. Yaden, 37 C. L. J. 409, and cases cited. But see paper of J. F. Mister before Mo. St. Bar Assn. at Springfield, Mo., July 10, 1894, for full and learned discussion of "State's Regulation of Contract of Employment." Proc. 16 Am. Meet., p. 222: "In Knoxville Iron Company v. Harbison, 183 U. S. 13, it was held that an act of the legislature of the State of Tennessee requiring the redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages due to employees, does not conflict with any provisions of the Constitution of the United States relating to contracts. The court quotes extensively from the opinion of the State court sustaining the validity of this enactment, and thereupon adds: 'The Supreme Court of Tennessee justified its conclusions by so full and satisfactory a reference to the decisions of this court as to render it unnecessary for us to travel over the same ground. It will be sufficient to briefly notice two or three of the latest cases: In Holden v. Hardy, 169 U. S. 360, the validity of an act of the State of Utah, regulating the employment of workingmen in underground mines and fixing the period of employment at eight hours per day, was in question. It was contended that the legislation deprived the employers and employees of the right to make contracts in a lawful way and for lawful purposes; that it was class legislation and not equal or uniform in its provisions; that it deprived the parties of the equal protection of the laws, abridged the privileges and immunities of the defendant as a citizen of the United Sttes, and deprived him of his property and liberty without due process of law.

inferiority or defectiveness of the machinery,1 and as mining operations are accomplished with great risk and peril to those conducting the business, independent of statutory liability, the legal responsibility of the mine owner should be all the greater for injuries to the employees which occur by reason of defective or inferior machinery. The mine

But it was held, after full review of the previous cases, that the act in question was a valid exercise of the police power of the State, and the judgment of the Supreme Court of Utah sustaining the legislation was affirmed."" For interesting discussion on the right of States to regulate the relations of mine owner and employee, on grounds of public necessity, see article of R. M. Benjamin, prompted by coal strike of September, 1902, in 6 Law Notes, 120. The Illinois statute, making employer pay wages according to tons of coal mined, was held unconstitutional. Millett v. People, 117 Ill. 294; Harding v. People, 160 Ill. 459. But the Indiana and West Virginia statutes have been upheld. State . Pasco, 153 Ind. 214; Martin v. State, 143 Ind. 545; State v. Peel Splint Coal Co., 36 W. Va. 802. Some of the State statutes limiting the hours of service by employees, have been upheld. Holden v. Hardy, 169 U. S. 369; s. c. 14 Utah, 71; Short v. Bullion-Beck Min. Co., 20 Utah, 20; U. S. v. Bridge Co., 88 Fed. Rep. 895; Schurr v. Savigny, 85 Mich. 144; Drake v. State, 144 N. Y. 416. But see State v. Moors, 55 Neb. 495; 20 Am. & Eng. Enc. Law (2 Ed.), 58 et sub. 1 Cooley on Torts, pp. 650-659 et sub. ingly uses defective appliances he is liable.

And if the employer knowPerry v. Rickets, 55 Ill. 234. 2 Cambria Iron Co. v. Schaffer (Pa.), 6 Cent. 608. The degree of care exacted of an employer differs with the hazards of the employment. Frihoy. Brooklyn Min. Lead Co., 4 Utah, 468; 11 Pac. Rep. 612. The following additional cases recognize the duty of employer to furnish safe machinery and appliances, or such as is reasonably safe: Purcell Mill &c. Co. v. Kirkland, 47 S. W. Rep. 311; Romona Stone Co. v. Johnson, 6 Ind. App. 550; Con. Coal Co. v. Bonner, 43 Ill. App. 17; N. Y. Min. Syndicate v. Rogers, 11 Colo. 6; Hamilton v. Rich Hill Coal Co., 108 Mo. 364; Lehigh Coal Co. v. Hayes, 128 Pa. St. 294; Carter v. Oil Co., 34 S. Car. 211; Virginia &c. Co. v. Chalkly, 98 Va. 62; 20 Am. & Eng. Enc. Law. (2 Ed.) 73. For negligence of employer from violation of statute, see Howells v. Wynn, 15 C. B. (N. 8.) 3; Foster v. Mining Co., 1 Q. B. 71; Kearney v. Whitehaven Co., 1 Q. B. 700; s. c. 62 L. J. M. C. 129; Catlett v. Young, 143 I 1. 74; Pawnee Coal Co. v. Royce, 184 Ill. 402; Springside Coal Co. v. Grogan, 53 Ill. App. 60; Fell v. Rich Hill Co., 23 Mo. App. 216; Leslie v. Rich Hill Co., 110 Mo. 31; Durant v. Coal Co.,

owner is generally liable for any injury that a miner may receive while engaged in the mining operations, or work pertaining to the same, which is caused by reason of inferior or defective machinery, and to which the latter had not contributed by his own negligence.1 And while a mine employee may, after a certain length of time, be held to have waived the defects in the machinery employed in operating the mine,' he cannot be held to have waived his right to claim damages for any injury caused by reason of defective machinery before he has been employed for a length of time sufficient to enable him to become acquainted with the defects,3 nor can a miner be held to have waived defects in the construction of a mine, by continuing to work therein until he has had reasonable time and opportunity to become acquainted with the defects, and with their bearing upon the hazards of his employment. the employer is not an insurer against accidents resulting

But

97 Mo. 62; State v. Anaconda Copper Co., 23 Mont. 498; Durkin v. Kingston Co., 171 Pa. St. 193; 20 Am. & Eng. Enc., p. 789; Spring Valley Coal Co. v. Rowatt, 96 Ill. App. 248.

1 Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Leslie v. Rich Hill Coal Min. Co., 110 Mo. 31.

2 Watson v. Kansas & Texas Coal Co., 52 Mo. App. 366; Bering v. Medart, 56 Mo. App. 443.

3 Perry v. Rickards, 55 Ill. 234.

4 Crabeth v. Wapello Coal Co., 68 Iowa, 751. Independent of the employer's statutory duty the employee is warranted in acting on the assumption that the machinery used by the employer is reasonably safe and adapted to the service in which it is engaged and the rule that the employee may assume that his employer has furnished him with suitable and safe appliances is particularly applicable where the duties of the employee require his close and constant attention to other matters; but generally before an employce can recover for injuries resulting from defective machinery and appliances, the employer must know or it must have been his duty to know of the defect, and the employee must have been ignorant thereof or not possessed of equal means of knowledge with the employer. Humphries v. Newport &c. Co., 33 W. Va. 135; Dutzi v. Geisel, 23 Mo. App. 676; Bier v. Standard Mfg. Co., 130 P. St. 446. In most mining States statutes had been passed

from defective machinery; nor would the proof of a latent defect in the machinery establish a prima facie case on the part of the employee; however, the employer is gene

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requiring safe machinery. It has, for years, been contended by lawyers of the zinc region of Missouri, that the act requiring cages in mines, only extended to coal mines (see Sess. Laws Mo. 1901, p. 211). Briefly stated some of the reasons are: "Words in a statute are construed according to their meaning at time of the passage of the act; there is no presumption that an enlarged meaning was intended by a re-enactment of the statute" (23 App. 169); as this act was originally passed the title of the act and language of the section plainly restricted its meaning to "coal mines," (Laws '81, p. 167). In '87 the word "coal" was omitted, but the proviso excepted "coal mines" of a certain depth, or all less than 100 ft. and in '99 "all coal mines less than 100" ft. were exempted and the same was practically re-enacted in 1901. It would be unreasonable to suppose that all lead and zinc mines, of any and all depths were required to cage and only coal mines - over 100 ft. were subject to the act-yet this is the only construction to place upon it if lead and zinc mines are subject to the operation of the law, as only "coal mines" are mentioned as the exception to the mines subject to the act. It is impossible for all lead and zinc mines to comply with the act without great inconvenience and expense and it would practically ruin the lead and zinc industry to so hold. Statutes should be construed according to reason and common sense (47 App. 624); "in construing a statute it is proper to consider the effects and consequences of a given interpretation" (111 Mo. 45); “a penal act must be so construed as that no case will fall within it, which is not included within the reasonable meaning of its terms and the spirit and scope of its enactment" (108 Mo. 459). “No person is made subject to a penal statute by implication" (90 Mo. 534); and it is competent, in construing a given law, to accept proof of the general understanding of the law; the constant practice of those whose duty it is to enforce it and their interpretation unquestioned by any public or private act is strong, if not conclusive evidence of the given interpretation upon the courts (112 Mo. 103; 111 Mo. 18). The statute makes it the duty of mine inspectors to see to the enforcement of this statute and they hold universally, that it does not apply to lead and zinc mines (see report State Mine Inspector for Mo. for 1897, pp. 180 and 181, where it is stated that the acts requiring machinery and appliances were intended to apply only to coal mines). But see Hammon v. Coal Co., 156 Mo. 240, where the above considerations were not called to the court's attention.

1 O'Donnell v. Brown, 38 Mo. App. 215. Nor would the fact that the

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