Foley v. Cudahy Packing Co.

93 N.W. 284, 119 Iowa 246

• Court: Supreme Court of Iowa
• Decided: January 28, 1903
• Status: Published

Opinion

Bishop, C. J.

i. motion to ed abstract, 2 üeniat.of whenadisregEirded. Appellee has filed an amended abstract, and appellant moves to strike the same — first, because not filed in time; second, because the same is wholly unnecessary and incorrect; and, third, because appellant’s abstract sets forth sufficiently the record to fairly present the questions raised by the assignment of errors. Subject to such motion to strike, appellant files a denial of said amended abstract, and avers that the same is incorrect and unfair, and does not contain the entire record. The amended abstract was not filed within the time fixed by the rule invoked by appellant. It was not long delayed, however, and it does not appear that appellant was in any way prejudiced thereby, or that therefrom any delay occurred in the submission of the cause. Where such clearly appears to be the case, we have frequently overlooked an infraction of the rule, and we are agreed such should be done in this case.' We cannot consider the second and third grounds of the motion. Under rule 22, a denial of appellant’s abstract by the appellee is to be taken as true unless appellant sustains bis abstract by a certification of the record; and a denial by appellant of an amended abstract filed by appellee, unless confessed, must be disregarded when not sustained by a certification of the record.

II. The assignment of error first presented in argument raises the question of the jurisdiction of the trial •court over the parties and the subject-matter of the action. It appears that Olson died on April 3, 1898. On April 25, 1898, letters of administration were granted upon his •estate to Mary Storsend, who qualified according to law. Thereafter, and at the January, 1899, term, said Mary Storsend, administratrix, commenced an action in said court against this appellant upon the identical cause of action here involved, which action was removed from said •court, by proper proceedings, to the circuit court of the United States, Northern. district of Iowa, and there retained. That upon a trial of said action in said circuit court, the same was dismissed by said administratrix without final determination and without prejudice. Thereafter said Mary Storsend, administratrix, resigned, and this plaintiff was appointed administrator in her stead. This action was then brought by him in the state court. The matters above referred to are set up as a separate defense in the answer, and it is said that, by reason of the facts alleged, there was no jurisdiction in the court below to hear, try, and determine this action; that the sole jurisdiction over :the same rests and is in said circuit court of ¡the United States. Proof of the facts alleged having been made, the defendant raised the point by motion to direct .a verdict at the close of all the evidence, and again by way of motion for new trial.

3. former movan155-missai. We can agree with counsel for appellant that in a case brought in the state court, and proper steps being taken to remove the same into the federal court,-the state court has n0 further jurisdiction to act in the case. We do not agree, however, that where a plainftff ,.Q gucj1 cage looses to dismiss his action •after removal, and without prejudice, he cannot again prosecute an action for the same cause in any forum save that of ¡the federal court. The only case to which our attention ¡has been called, holding the doctrine contended for is Railroad Co. v. Fulton, 59 Ohio St. 575 (53 N. E. Pep. 265, 44 L. R. A. 520). In that case reliance was placed upon Cox v. Railroad Co., 68 Ga. 446. An examination of the latter case will disclose that the point in • question was not involved. It appears that an action had been commenced in the state court, and removed to the federal court by proper proceedings, where it was dismissed. An effort was made to revive the action in the state court,- the-evident purpose being to avoid the running of the statute of limitations against the cause of action involved. It waS’ held, in effect, that, the cause having been removed to the-federal court, there was no jurisdiction in the state court,, to take further cognizance of the same action; that proceedings in the nature of an application to revive the action so previously commenced and dismissed must be-made to the court having jurisdiction thereof. The ruling, had no reference to the cause of action as distinguished from the action itself. The Ohio case is criticised with, some severity in Gassman v. Jarvis (C. C.)100 Fed. Rep. 146, where it is said: “When a cause has been dismissed out of a court of the United States without any trial or determination of the merits, it is not perceived why anew suit may not be brought on the same cause of action in any court of competent jurisdiction.. The state court possesses original jurisdiction of all such causes of action. ■ The removal of the cause, and its subsequent dismissal: untried and undetermined, cannot,, under any known rule-of law, be held to be a merger of the cause of action; nor-can the removal and dismissal of the cause- be pleaded in abatement of the new suit brought in the state court.”’ See, also, Wilson v. Milliken, 19 Ky. Law Rep. 1843 (44 S. W. Rep. 660 42 L. R. A. 449, 82 Am. St. Rep. 578); Bush v. Kentucky, 107 U. S. 110 (1 Sup. Ct. Rep. 625, 27 L. Ed. 354); Swift & Co. v. Hoblawetz, 10 Kan. App. 48 (61 Pac. Rep. 969. Such we conceive to be- the correct conclusion,, and we accordingly hold that this contention, of appellant’ is without merit.

Administrators who may III. A further assignment of error .questions the capacity of the administrator plaintiff, and the regularity of his appointment. It appears that Foley was at the time of his appointment, and still is, a nonresident of this state; that he resides in Illinois, and there executed his bond and took the oath as administrator. His appointment is not assailed upon any other ground. It is the rule in some of the states that an appointment of a nonresident as administrator is a void proceeding, and subject at any time to-collateral attack. Such rule has not been adopted in this,, and in still other of the states. Tae provision of the-statute of this state authorizing the appointment of an. administrator contains no limitations. Code, section 3297. The express point here made by appellant was ruled upon, by this'court in Railway Co. v. Gould, 64 Iowa, 343. In that case we held that mere- nonresidence alone does not-disqualify one so that he may not be lawfully appointed an administrator in this state; that the fact of nonresidence is to be considered simply in connection with the ability, character for, integrity, etc., of the proposed appointee, the magnitude and character of the estate, and the extent of personal attention the same will probably require. No sufficient reason is presented for disturbing the rule thus declared, and we therefore adhere to it.

5. examination ofscr?" trial court, IY. In the examination of jurors, each was asked, upon his voir dire by counsel for plaintiff, “Have you any connection of any kind with any casualty or employers^ insurance company?” In each instance the question was objected to, the objection overruled, and an exception taken. Such ruling is assigned as error. It is common knowledge that many companies and corporations have been formed in this-country for the purpose of, and are engaged in, the business of insuring employers of labor against damages growing out of personal injuries sustained by employes. Of necessity, such business is carried on by agents, and so it is that in most cities and towns one or more of such agents ■can be found. It is easy to understand that the interests of such companies lie on the defensive side of cases such as the one at bar. And if the defendant happen to be ■insured in some one or more of such companies, the interest becomes a direct and active one. That a defendant in ■an action of this character may be insured in some such company is immaterial of itself. But it is manifest that ■a plaintiff may not desire to have the jury which .is to try ■his case made up, in whole or in part, of the agents or ■employes of such an insurance company. The fact of such •employment would not constitute a ground of challenge for cause, but, as parties and their counsel cannot be expected to know personally every juror who may be called into the box, an examination sufficiently broad should be permitted to enable a party to determine upon his peremptory challenges. “It is the general and well-established practice to allow considerable latitude in the examination of persons called to act as jurors, not only to facilitate the ■discovery of grounds for cause, but to enable the parties ■interested to discover any peculiarity or conduct, association, character, or opinion, or any predilection, of the •person under examination, or other circumstance which, in the opinion of the examiner, might influence the person •as a juror, and affect his verdict. ” State v. Dooley, 89 Iowa, 584. Such examinations must be left largely to the sound discretion of the trial court, and it is only wlien an abuse of such discretion is clearly shown that this court is authorized to interfere. The ruling complained of does not involve any such abuse of discretion.

V. At the close of the evidence for plaintiff, the defendant moved for an instructed verdict upon substantially three grounds, which are presented in the following oi'der: First, that the evidence shows that' plaintiff’s ■intestate was guilty of' contributory negligence; second, that the negligence complained of was that of a co-employe, for which defendant is not liable; and, third, that there is no evidence of negligence on the part of defendants

6 contribdge»ce:njury question. We think the first ground of the motion not well taken. In respect thereto, it is sufficient to say that the evidence shows the scaffold from which plaintiff fell was floored by a double thickness of two-inch plank, and was elevated some distance above the ground, jn performance of his duty, Olson had left the scaffold and gone into the building, and* while gone, some of the flooring planks were removed without his knowledge, leaving the floor but one plank in thickness. Coming out of the building, he stepped upon the scaffold, and the single plank broke, precipitating him to the ground below. Whether, under the circumstances shown, there was anything to particularly call his attention to the scaffold floor, or whether there was any reason why he should have made an examination thereof before stepping upon it, and, as well, whether he should have anticipated a change in the construction of the scaffold by the removal of a portion of the floor planking, were clearly questions for the jury, and we think there was no error in submitting such questions for a verdict.

The second and third grounds of the motion may be properly considered together. As to the charge of negligence on the part of the defendant, it is'said in the motion that “the evidence conclusively shows the defendant company furnished sufficient and suitable material for the erection of the scaffold in question, and that plaintiff’s intestate, assisted by his co-employes, erected the same, and defendant is not liable fer the manner of its construction and maintenance”; and, further, that “the evidence shows conclusively that the scaffold in question was changed as the work progressed, by reason thereof, and ■ the defendant is not liable if the scaffold became unsafe on account of the changes therein in the progress of the work. ”

master. negligence?* evidence. ' No contention is made in the case as to the original ■construction of the scaffold, and such phase of the question need be given no further consideration. That t1 ere was sufficient and suitable material on the ground f°r the proper maintenance of the scaffold, we think, may be conceded, although the point is controverted in the evidence. The record shows that the work under construction was an inclined way, running up the side of a slaughter house, commencing on the .ground and landing at one of the upper stories of the ■building. On the side next to the building it was fastened thereto, and on the outer side it rested on supporting posts or pillars. It was designed tó drive cattle thereon, .from the ground up into the slaughter house. The scaffold in question was a temporary structure, and was.erected to facilitate the erection of 'the permanent structure, — said inclined way. The work was begun at the ground, and, .as it progressed, further and higher scaffolding was erected. The work in which Olson was engaged at the time of his ■accident was in bolting timbers to the building, upon which to rest that side of the inclined way. Our attention is not called to any evidence to the effect that the removal •of the planks from the scaffold floor was in connection with making any change in such scaffold. There is evidence tending to show that, instead of resorting to the supply of planks provided, the scaffold planks were taken and used for another and distinct purpose. Now, the charge of negligence relied upon by plaintiff is in connection with the unannounced removal of the flooring planks, which, it is said, rendered the scaffold dangerous to stand or walk upon. It follows that the question of the sufficiency of the supply of planking, and, for that matter, the question •of the making of a change in the scaffold, if it be insisted that the record presents such question, are material only as bearing upon the ultimate question of negligence involved in the removal of the scaffold flooring planks. Taking into consideration the other facts in the case, which the evidence tends to prove, and there certainly is no theory upon which it can be said, as a matter of law, that the mere presence on the grounds of a sufficiency of material conclusively rebuts and overthrows all claim and ■charge of negligence on the part of the defendant. We think it must be held that the question of negligence is to be determined by having reference solely to the subject-matter of the removal of the scaffold floor planking, by whom removed, and under what circumstances. That it is the rule of all the cases that the master must provide and maintain a safe place for his employes to work is well settled. Fink v. Ice Co., 84 Iowa, 322; Newbury v. Manufacturing Co., 100 Iowa, 441. And a scaffold is a place to work, within the meaning of the, rule. Haworth v. Manufacturing Co., 87 Iowa, 765.

As we have said, there is no dispute as to the original safe construction of the scaffold. The material question of fact in the case is, therefore, by whom, and under what circumstances and authority, was the change made? For if it shall appear that such was the work of a co-employe, merely, or of any unauthorized person, it is clear that the master cannot therefrom be charged with negligence; and, if the verdict be predicated upon such facts, it should be set aside. Such, also, is the uniform current of the authorities. It appears in evidence in this case that the carpenter work was under the general charge of one Casey. There is also evidence tending to prove that one Blondín was the foreman in immediate charge, and that on the day of the accident he was the only person present having charge óf the work; that the planks were removed and used elsewhere pursuant to his instructions. The witnesses who were workmen at the time testify that they received their orders from Blondín, and that he directed the manner in which the work should be performed. With out further reciting the evidence, we think sufficient appears to warrant the jury in finding that the defendant had delegated the performance of its duty to maintain a safe place to work to Blondin, and that his act in ordering, the plank in question removed was, in contemplation of law, the act of the defendant. The cases cited above in principle support this conclusion. See, also, O'Neil v. Railway Co., 80 Minn. 27 (51 L. R. A. 590), and notes (s. c. 82 N. W. Rep. 1086); McMahon v. Mining Co., 95 Wis. 308 (70 N. W. Rep. 478, 60 Am. St. Rep. 117); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. Rep. 572); Ryan v. Bagaley, 50 Mich. 179 (15 N. W. Rep. 72, 45 Am. Rep. 35); Railroad Co. v. Peterson, 162 U. S. 346 (16 Sup. Ct. Rep. 843, 40 L. Ed. 994); Baldwin v. Railway Co., 75 Iowa, 297.

We conclude that there was no error in overruling the motion of defendant for a verdict.

YI. We have'examined the instructions carefully, and, while open to some measure of criticism because of extreme length, we discover no prejudicial error. On the whole, we think the case was fairly tried, and there appears to be no reason for disturbing the verdict.— Asfirmed.