Swift & Company v. Platte

• Decision Date: 12 December 1903
• Docket Number: 13,043
• Court: Kansas Supreme Court
• Parties: SWIFT & COMPANY v. WILLIAM PLATTE

72 P. 271

68 Kan. 1

SWIFT & COMPANY v. WILLIAM PLATTE

No. 13,043

Supreme Court of Kansas

December 12, 1903

April 11, 1903.

Decided July, 1903.

Rehearing granted May 9, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge. First opinion filed April 11, 1903. Reversed. Rehearing granted May 9, 1903. Second

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS--Suits against Foreign Corporations--Right to a Review. The statutory provision prohibiting a corporation which has not obtained a certificate from the secretary of state that certain statements have been made and filed by it from prosecuting an action in any of the courts of the state (Laws 1901, ch. 125, § 3; Gen. Stat. 1901, § 1283) does not apply to corporations which have been summoned into court and made to defend against actions brought by other parties; nor does it prevent such corporations from obtaining a review and a reversal of judgments rendered against them in such actions.

2. JURY AND JURORS--Examination in Personal-injury Cases. In the voir dire examination of jurors in personal-injury cases brought against corporations or others, it is error to permit counsel for the plaintiff to ask questions which unnecessarily suggest and bring to the attention of jurors the fact that the defendant is insured in an accident company which will pay the fees of the attorneys defending and also any judgments resulting from accidents to employees of defendant.

3. JURY AND JURORS--Latitude in Examination. Considerable latitude should be allowed in the examination of jurors to the end that all who have any bias or prejudice, or are otherwise disqualified, may be excluded from the panel, but the inquiry should never extend so far as unnecessarily to introduce extraneous matter of a prejudicial character that may improperly influence the verdict.

Lathrop, Morrow, Fox & Moore, Frank Hagerman, and Alden, McFadden & Alden, for plaintiff in error.

Sutton, Maher & Sutton, for defendant in error.

JOHNSTON C. J. SMITH, CUNNINGHAM, POLLOCK, BURCH, JJ., concurring. JOHNSTON, C. J., GREENE, MASON, JJ., dissenting.

OPINION

JOHNSTON, C. J.:

This was an action by William Platte to recover from Swift & Company for injuries sustained by him while descending a dark stairway in the 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 all 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 went up and down the stairway. When he and others stepped inside on the night of the accident there was no light, and as he was about to descend and reached to the side for a railing or something to steady himself he lost his balance and fell, by which he suffered serious injuries. His action is based on the negligence of Swift & Company in not maintaining sufficient light and in not providing a hand-rail.

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 workmen 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 damages awarded was $ 1850, and to reverse the judgment rendered this proceeding is brought.

First, it is contended that the plaintiff in error, being a foreign corporation and not having complied with all of the statutory regulations as to such corporations, is not authorized to do business in Kansas, or to maintain this proceeding. While the company had made the required annual statements it appears that it had not at the time paid the charter fees or taken other steps essential to the obtaining of a certificate of authority from the charter board. The statute provides:

"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 of action, but only a right of review, and while the company instituted the proceeding here it is still in an attitude of defense and is resisting the claims and contentions of the plaintiff below. The jurisdiction of the court in such cases is limited to a review of the rulings of the district court, and in the event of a reversal the case is remanded for a retrial. The commencement of such a proceeding cannot be regarded as the prosecution of an action, within the meaning of the statute, and the prohibition can never apply to the institution of a proceeding in error to one summoned into a trial court and made to defend against an action brought by another.

Exceptions were taken to the methods employed by plaintiff's counsel in impaneling the jury. In the examination of jurors on their voir dire questions were asked which it is claimed suggested to them that the company had accident insurance which indemnified it against loss or any judgment that might result from this and other cases. The following questions were asked and answers given over the persistent objections of the company:

"Ques. If it should appear in the trial of this case that an insurance company which makes it a business to insure employees...