Swift and Company v. Hoblawetz

• Decision Date: 11 July 1900
• Docket Number: 740.[*]
• Citation: 10 Kan.App. 48,61 P. 969
• Parties: SWIFT AND COMPANY v. MARY F. HOBLAWETZ
• Court: Kansas Court of Appeals

61 P. 969

10 Kan.App. 48

SWIFT AND COMPANY v. MARY F. HOBLAWETZ

No. 740.^[*]

Court of Appeals of Kansas

July 11, 1900

Decided July, 1900.

Error from Wyandotte common pleas court; W. G. HOLT, judge.

Judgment affirmed.

SYLLABUS

1. ACTION -- Failure Otherwise than on Merits -- Limitation. We adhere to our construction of section 23 of the code (Gen. Stat. 1897, ch. 95, § 17; Gen. Stat 1899, § 4267), that its provisions apply to an action which has failed otherwise than upon its merits, although the time limited by the statute in the first instance had not expired at the time of such failure.

2. -- Removal -- Dismissal in Federal Court -- Jurisdiction. The removal of a case from the state to the federal court does not so invest the federal court with jurisdiction of the subject-matter as to preclude the plaintiff from again suing upon the same cause of action in the state court.

Amos H. Kagy, and Hutchings & Keplinger, for plaintiff in error.

T. P. Anderson, and Getty & Hutchings, for defendant in error.

OPINION

MAHAN, P. J.:

Defendant in error began this suit to recover damages on account of the death of her husband, which she says was occasioned by the negligent conduct of plaintiff in error while her husband was in its employment about its packing-house. Joseph Hoblawetz, her husband, lost his life in the fire of August 6, 1896, which caused the injury to Henry Creasy, whose case was before this court upon petition in error of Swift and Company.

The plaintiff herein charges in her petition nine different acts of negligence. The first is that Swift and Company failed to have steam-pipes constructed accessible to each of the smoke-rooms so that steam could be turned upon the fire to extinguish it. The second is in failing to have an efficient method of extinguishing fire in its smoke-rooms. The third is in failing to advise its employees of the danger of throwing large quantities of water directly upon the fire, when one occurred in the smoke-rooms. The fourth is in failing to instruct its employees to prevent other persons from throwing water upon such fires. The fifth is in not having employees who were properly informed of the method of extinguishing such fires. The sixth is in not having safe and proper means of egress for its employees from the room in which Hoblawetz was killed. The seventh is in instructing defendant's smoker to rush the smoking in room 15, wherein the fire occurred. The eighth is in rushing the smoking therein in such a negligent manner as to cause the meat to take fire. The ninth is in ordering defendant's employees to turn the water on the fire.

The answer was (1) a general denial; (2) a plea of another action pending; (3) an allegation of contributory negligence; (4) an allegation of the assumption by Hoblawetz of the risk as being incident to the service in which he was employed; and (5) an averment that his death was due to the negligent act of a fellow servant.

There was a trial to a jury, a verdict and judgment for the plaintiff.

The first assignment of error is that the court overruled an objection to the introduction of evidence for the reason that it was disclosed by the petition that the cause of action therein stated was barred by the two-year statute of limitations. The plaintiff began her action in December, 1896, which was dismissed without prejudice in December, 1897. Another action was begun in December, 1897, removed by Swift and Company to the federal court, and dismissed November 28, 1898. This action was begun August 26, 1898. Counsel say in support of this contention:

"The death occurred August 6, 1896; this action was commenced August 26, 1898. The petition sought to avoid this fact by alleging the commencement of a prior action on or about December 10, 1896, and its subsequent dismissal within one year from its commencement. The answer admitted the commencement and dismissal of the prior action, but alleged the commencement of a second action, which was pending at the commencement of this action, and was still pending at the time the answer was filed. The reply admitted these statements of the answer."

It is contended, upon this, that the case does not come within the provisions of section 23 of the code (Gen. Stat. 1897, ch. 95, § 17; Gen. Stat. 1899, § 4267), because the time limited by the statute had not expired at the time the first action was dismissed. In Knox v. Henry et al., 8 Kan.App. 313, 55 P. 668, we held against this contention, and adhere thereto.

The second assignment of error is that the court overruled the demurrer to the evidence of the plaintiff. This assignment is based upon the same proposition of law that No. 1 is based upon, and must fall with it.

The third assignment is that the court refused certain instructions. By its request numbered 11, defendant asked the court to say to the jury that there was no evidence in support of the act of negligence, numbered 7, and that therefore the defendant could not be held liable on that ground. The court said to the jury in its general charge:

"The first question for you to determine in these cases is, Was the defendant guilty of any of the acts of negligence charged against it by the plaintiff? The burden of proof is upon the plaintiff to prove by a preponderance of evidence that the defendant was guilty of one or more of the acts of negligence charged against it, and if the evidence upon such matters is evenly balanced, or if it preponderates in favor of the defendant, then your verdict should be for the defendant."

The request was simply the same matter in a different form.

The twelfth and thirteenth requests might have been given without objection on the part of the plaintiff, and yet their refusal is not sufficient ground for a reversal of the judgment. The proposition expressed in No. 12, that if the fire arose from accident purely the jury could not find that it was occasioned by the negligence of the smoker, Joss, is self-evident, and is necessarily embodied in the substance of the general charge of the court. By request No. 13, the court is asked to say to the jury that there is no evidence tending to show that the smoking could not be rushed without danger and that, therefore, the jury could not attribute the fire to the fact that Jackson, the foreman, told Joss to rush the smoking, and could not consider it an act of negligence for which the defendant would be responsible. It cannot be required of the court to apply by its...