72 P. 271 | Kan. | 1903
Lead Opinion
The opinion of the court was delivered by
This was an action by William Platte to recover from Swift & Company for injuries sustained by him while descending a dark stairway in thej'packing-house of the company. He was an employee of the company and had been at work in a part of the packing-house where the accident occurred about three weeks. The stairway by which Platte and his associates left the building was in two sections, the upper section being cased up and dark at ail times except when artificially lighted. For the purpose of lighting it, an electric light was placed within the casement near the head of the stairs, and prior to the accident this light had been always burning when Platte
There was no switch or other method of regulating the light in the stairway except in the engine-room some distance away. It was alleged that the light in this stairway was frequently extinguished, a fact known to the company but unknown to Platte, and that, while the latter had passed up and down the stairway, he did not know of the uncertainty of the light nor had he observed that there was no hand-rail.
Another ground of negligence was the failure to provide a system of inspection to insure the burning of the light when wox-kmen were necessarily using the stairway.
The trial resulted in a general verdict in faVor of. Platte and in special findings to the effect that' he-daily ascended and descended the stairway for two or-three weeks prior to the accident, during which time*' the light at the head of the stairway was always burning ; that in doing so he had opportunity to observe there was no hand-rail, and that he reached for a hand-rail just before he lost his footing and fell. The jury were unable to determine how long prior to the accident the light in the stairway had been out, or who turned it out. They also found that the plaintiff, by extending his arms in the stairway, could reach both sides of it, but were unable to state whether he would have lost his footing if he had placed his hands on both sides when descending. The amount of dam
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.” (Laws 1901, ch. 125, §3; Gen. Stat. 1901, § 1283.)
Assuming, but not deciding, that this provision applies to other requirements than the making of annual statements, we still think it is not a .bar to the review sought here. It will be observed that the prohibition is directed at the bringing of actions and not at the making of defenses to actions rightly brought. Platte brought the company into court, and having forced it into litigation he is hardly in a position to say that it shall not contend with him to the end. The action mentioned in the statute refers to an ordinary proceeding in a court of first instance and not to an appellate proceeding brought to correct the errors of such court. The proceeding in this court, although in some respects distinct from the action in the trial court, and although the steps taken in the commencement of each are somewhat analogous, is purely appellate, and is, in a certain sense, a continuation of the controversy in the district court. Swift & Company had not a right
“Ques. If it should appear in the trial of this case that an insurance company which makes it a business to insure employees against injuries was hiring the attorneys and defending this case in the name of Swift & Company, would it make any difference to you in your verdict ? Ans. No, sir ; it would not make any difference.
“Q,. You know of the fact that employees of Swift & Company and Armour & Company are insured by insurance companies? A. Well, nothing more than what I have been told.
“Q. You have been told ? A. Yes, sir.
“Q. And that the insurance companies defend these suits? A. Yes, sir; I have been told so.
“Q,. That they hire the lawyers and pay the judgments ? A. Yes, sir.
“Q,. That’s it; have you heard it? A. Yes, sir; I have heard it talked of.
“Q. Would the fact that you have'heard that'the insurance companies defend those suits brought against the packing-houses, and that they indemnify the packing-houses against loss, make any difference in your ■own mind in rendering a verdict in a case where one of the packing-houses, or where Swift & Company, for instance, was the defendant ? A. No, sir ; I don’t know as it would.”
•It is argued that the questions suggested the existence of facts which were intended and calculated to prejudice the jury against the company. Objections to the statements made having been overruled, it is said that they went to the jury with the force and effect of evidence, and that they were not relevant or-competent upon any issue in the case. (O’Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 36 S. E. 59; Sawyer v. Shoe Co., 90 Me. 369, 38 Atl. 333; Barrett v. Bonham Oil & Cotton Co., 57 S. W. [Tex.] 602.)
In this instance it is the view of the court that the examination was unnecessarily and erroneously extended. The inquiries were not so much directed at the possible connection of jurors with insurance companies or with those representing them, but mainly pressed upon the jurors questioned, as well as those listening, the fact that packing companies were insured, and that these companies were hiring the lawyers and would pay the judgment if any should be given. The statements were not limited to the placing of an insurance company behind Swift & Company, but they carry the idea that Armour and other packing companies rely on their insurance against accidents to their employees, and therefore have little concern as to the accidents or to the actions which may be brought to recover for the injuries. In a case somewhat like this it was expressly held that “in the examination of jurors in personal-injury cases it is error to permit counsel for the plaintiff to ask questions which allow the jurors to take into consideration the fact that the defendant is insured in a casualty company against loss from accidents.” (Eckhart & Swan Milling Co. v. Shaefer, 101 Ill. App. 500.) This is deemed to be prejudicial error for which there must be a reversal.
The writer is unable to concur in this view. The scope of a voir dire examination must be left largely to the sound discretion of the trial court. There is no more important feature of a trial than the impaneling
I am authorized to state that Justices Greene and Mason join me in dissenting from the .judgment of reversal.
The objections made to rulings on the admission of testimony are not regarded as substantial, and the court is united in the opinion that there was sufficient testimony to take the case to the jury and to sustain the findings and verdict. The case appears to have been fairly presented to the jury, and the exceptions taken to instructions given and refused are not sustained ; but for the error committed in impaneling the jury the judgment of the district court will be reversed, and the cause remanded for a new trial.
Rehearing
OPINION ON REHEARING.
No. 13,043.
The opinion of the court was delivered by
The only question presented and considered on this rehearing was the one arising on the impaneling of the jury. Was the inquiry as to employers’ accident insurance held by companies like Swift & Company; and as to the possible interest or connection of the proposed jurors with such insurance, prejudicial error? In the former opinion the questions asked and replies given were set out and, as will be seen, were .largely hypothetical. Inquiries were made of proposed jurors whether they knew of the existence of companies which insure or indemnify employers like Swift & Company against loss or damage that may arise from injuries to their employees, and also that the indemnifying companies employ attorneys to defend actions that may be brought by injured employees and.pay any judgments that may be recovered. The jurors responded that they had been told of this but had no direct knowl
It is conceded that proof of the existence of such companies, or that indemnity was furnished, was incompetent upon any issue in the case, and, of course, the facts could not be injected into the trial to create prejudice against the defendant company. The inquiries were made on the voir dire examination of the jurors, and apparently to ascertain if they had any connection with, or interest in, such companies, or would be affected by the giving of such indemnity. It is a matter of. common knowledge that employers do obtain indemnity, and that insurance companies do undertake to protect employers in litigation like this, and the jurors of whom inquiry was made had already heard that such was the fact. An indemnifying company would be as much or more interested in the litigation as the defendant, and any one closely connected with, or related to, such company, or its agents, could hardly be regarded as a qualified juror. To enable ai party to guard against the inclusion of prejudiced jurors it'Was proper for the court to allow a full and searching inquiry as to a possible connection of the proposed jurors with an indemnifying company or with its agents or attorneys, and whether they would be affected or prejudiced if such indemnity existed. The inquiry should be conducted by pertinent questions asked in good faith and be confined within reasonable limits, but, having in mind how important it is that the panel be duly sifted and that all prejudiced and objectionable persons be excluded from it, we cannotsay that prejudicial error was committed in this instance.
It is true that the fact that packing-houses such
In Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N. W. 1079, the supreme court of Minnesota held that inquiries of this character were not improper. There it was shown that the defendant was indemnified by an insurance company and jurors were interrogated as to their connection with, or interest in, such company in order that the court might determine whether they might act as jurors impartially and without prejudice to the substantial rights of the parties. It was there said :
“We think it would be impossible to say, or for the court to hold in,the exercise of its proper discretion, that any person connected with the indemnifying company as a stockholder or otherwise could be a proper person to sit as a juror in a case, the result of which might be of pecuniary interest to such company. If
In Foley v. Cudahy Packing Co., 119 Iowa, 246, 93 N. W. 284, a like question was before the supreme court of Iowa, and it was held that an inquiry such as was made in this instance was not an abuse of the discretion of the trial court. It was there stated that the existence of such indemnifying companies was a matter of common knowledge; that their business was carried on by agents, and that one or more of such agents could be found in most of the cities and towns ; that the interests of such companies lie on the defensive side of cases such as the one at bar, and if the defendant happens to be insured in one of such companies the interest becomes a direct and active one. It was then said :
“That a defendant in an action of this character
These are the decisions of courts of last resort, and are much later than the decision of the intermediate court (Eckhart & Swan Milling Co. v. Schaefer, 101 Ill. App. 500) relied on by plaintiff in error.
Unless, therefore, the inquiry was not conducted in good faith, or was so unnecessarily extended as to constitute an abuse of discretion by the court, we cannot say there was error. If we had the knowledge of the proposed jurors and the local situation such as the trial court had, we might readily say that good reasons existed for the character and extent of the inquiry. The trial court decided that the extended inquiry was necessary and proper, and it must have-determined that it was conducted in good faith by counsel. It was in much better position to determine the question of good faith than are we, and, having in view the large discretion vested in the trial court as to the extent of the inquiry, we cannot say that its rulings furnish a ground for reversal.
The original order of reversal will be set aside and the judgment of the trial court affirmed.
Dissenting Opinion
(dissenting) : Presumably for the support of the court’s opinion in this case a matter is woven into it which I am unable to discover in the record. In stating the question it makes part of the inquiry the possible interest or connection of the proposed jurors with employers’ accident insurance companies. It says that the inquiries made on the examination of jurors were apparently to ascertain if they had any connection with, or interest in, such companies. It says that any one closely connected with, or related to, such companies or their agents could hardly be regarded as a qualified juror; that, to .enable' a party to guard against the inclusion of prejudiced jurors it was proper for the court to allow a full and searching inquiry as to a possible connection of the proposed jurors with an indemnifying company, or with its agents or attorneys. The syllabus of the case uses the same material for the erection of its framework.
This interlarding is carefully done, although the questions propounded to the jurors did not, in my estimation, contain a single word tending in the slightest degree to connect them with any such company. No perversion of the meaning of words can make those forming the interrogatories propounded apply to any connection whatever of the juror himself with any indemnifying insurance company, or to any personal relation whatever of the juror with such a company, or to any interest of the juror in such a company. Here are some of them, with .the answers returned :
“Ques. You know of the fact that employees of Swift & Company and Armour & Company are insured by insurance companies? Ans. Well, nothing more than what I have been told.
“Q. You have been told? A. Yes, sir.
“ Q,. That they hire the lawyers and pay the judgments? A. Yes, sir.
“ Q,. Have you heard — do youknow from hearsay— whether or not the insurance companies hire the lawyers and pay the judgments, if any are rendered? A. Nothing more than what I have heard.”
Nothing can make these questions have the meaning of the following simple questions : Do you own stock in any insurance company which indemnifies employers against loss from accidents to employees? Are you holding employment under any such company? Do you have any business relation or family connection with any officer or agent of any such company? And nothing can make those questions have any other tendency than to lead the panel to believe that the defendant was fighting a sham battle for the benefit of a corporation which had contracted to pay the very damages sued for.
The fact that the defendant company took advantage of the practice of its adversary and indulged in some jury poisoning on its side shows the greater necessity for the condemnatory interposition of this -court. Something more is due than an argument that one was no more hurtful than the other.
In Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N.W. 1079, it was shown to the courtthat an indemnity company had insured the defendant for the direct purpose of thereafter asking each juror, as he was called, if he was a stockholder or had any interest in such company.
In Foley v. Cudahy Packing Co., 119 Iowa 246, 93 N. W. 284, the question was, “Have you any connection of any kind with any casualty or employers’ insurance company?”