Eberle v. Koplar
| Decision Date | 13 September 1935 |
| Docket Number | 23,245 |
| Citation | 85 S.W.2d 919 |
| Parties | GERTRUDE EBERLE, Respondent, v. SAM KOPLAR, Trustee of GROLLNEK REAL ESTATE AND INVESTMENT COMPANY, a Corporation (Now Dissolved), Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis, Mo. Division No. 18. Honorable Robert W. Hall, Judge.
Affirmed.
Mark D Eagleton, Attorney for Respondent.
Green Henry & Remmers, Attorneys for Appellant.
Jefferson D. Hostetter
This suit was brought in the circuit court of the city of St. Louis, originally against the Grollnek Real Estate and Investment Company, a Missouri corporation, and Israel Grollnek. It later developed that the corporation had been dissolved on January 1, 1933, and that Israel Grollnek had died in April, 1933, and an amended petition was filed, bringing in, as the only surviving director of the corporation, Sam Koplar, and also Jennie Koplar, Executrix of the will of Israel Grollnek, deceased, as defendants, the suit being dismissed as to the corporation.
The suit was one for damages on account of personal injuries received by plaintiff in being thrown downstairs by reason of a defective metal strip in the stairway.
The facts shown in evidence were to the effect that the plaintiff, on November 13, 1931, was a tenant in a six-family apartment building owned and controlled by the Grollnek Real Estate and Investment Company, a corporation, and had been a tenant there for about thirteen years; that plaintiff occupied the apartment on the first floor of the building and at about eleven a.m. on November 13, 1931, left her apartment and went to the third floor to visit a Miss Rice; that about five minutes later plaintiff left Miss Rice's apartment to return to her own, and, while walking down the stairway between the first and second floors she tripped on a metal strip on the sixth step from the bottom of the stairway and fell and was injured. The metal strip was on the outer edge (near the nose) of the tread, which was loose by reason of the fact that several of the screws which were used to hold it down were missing. Underneath the metal strip was a rubber mat which extended back on the tread of the step. The evidence further disclosed that plaintiff saw nothing wrong with this sixth step before she was injured; that as she descended the stairs she put her foot upon the sixth step of the stair and touched the metal strip and it gave way and sprang or raised up off the step, catching the heel of her shoe on her left foot as she was attempting to bring it down to the fifth step, tripping her and throwing her down to the first floor and injuring her; that three days before the injury one Arthur Morting another tenant in the apartment building, observed that the metal strip on the sixth step was loose by reason of some of the screws being missing and immediately advised Mr. Grollnek, who was working in the apartment building at the time, of this condition and also advised the janitor of the apartment building of this condition. The evidence further showed that the Grollnek Real Estate and Investment Company was incorporated in June 1911; that defendant, Sam Koplar, together with his father-in-law, Israel Grollnek, and his brother-in-law, Louis A. Grollnek, were the original shareholders and board of directors of the corporation and continued as such board of directors from the time of the incorporation up to the time of the filing of the corporation's annual report for the year 1931 with the Secretary of State; that the corporation neglected to file its annual report for the year 1932 and on January 1, 1933, the charter of the corporation was forfeited by the Secretary of State and the corporation was dissolved for its failure to file such report for the year 1932. It was further shown at the trial that Israel Grollnek was dead and that Louis Grollnek was, and had been for some years, a resident of the state of California. Defendant Sam Koplar, by deposition, admitted that he was one of the original board of directors; that he never knew of any meeting that might be classified as a meeting of that board; that he never knew whether he was supposed to be acting as a member of that board or not; that at times he had signed papers as an officer of the corporation; that it was possible that his father-in-law and brother-in-law used his name continuously as a member of the board of directors of the corporation; that he had let his father-in-law know that it would be agreeable to him (defendant) to use his name whenever occasion demanded or it became necessary and that defendant didn't know of any person other those three who ever acted as an officer or director of the corporation.
The amended answer consisted of a general denial and a plea of contributory negligence. The reply was a general denial.
The major portion of the testimony was in respect to plaintiff's injuries received by the fall, but, as no point is made in respect to the amount of the verdict, it is unnecessary to review the facts relating to such injuries, as this appeal is bottomed on other points.
Plaintiff recovered a verdict for $ 7500 and after an unsuccessful motion for a new trial the cause was duly brought to this Court by appeal for review.
Only two assignments of error were made by the defendant. The first was that the court erred in refusing defendant's instruction in the nature of a demurrer to the evidence because there was no showing that defendant was a director of the corporation at the time of its dissolution and that there was no showing that defendant Sam Koplar, as trustee of the dissolved corporation, had come into possession of any assets of the corporation. The second was that the court erred in permitting plaintiff to go to the jury with only an instruction covering the measure of damages.
We hold that the instruction in the nature of a demurrer to the evidence was correctly refused by the trial court. It was shown that defendant was a stockholder and a member of the first board of directors when the corporation was organized in 1911.
The last annual report being for the year 1931, filed in the office of the Secretary of State, showed defendant to be still a member of the board of directors and for failure to file its annual statement and antitrust affidavit for the year 1932 its charter was forfeited and the corporation was dissolved by the Secretary of State on January 1, 1933.
It is a well settled principle that a status once shown to exist will be presumed to continue, absent any showing to the contrary. Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Sisk v. American Central Fire Ins. Co., 95 Mo.App. 695, 69 S.W. 687; Westinghouse, etc., v. Hodge, 181 Mo.App. 232, 167 S.W. 1186; First Nat'l Bank v. Guardian Trust. Co., 187 Mo. 494, 86 S.W. 109, 70 LRA 79; Anslyn v. Franke, 11 Mo.App. 597; Cargile v. Wood, 63 Mo. 501; Youree v. Home etc. Ins. Co., 180 Mo. 153, 79 S.W. 175.
In the Sisk case, supra, it was held that Cram, who signed the policy sued on as president of the corporation, "is presumed to have continued to be its president in the absence of a contrary showing".
In the case of the Westinghouse Electric & Mfg. Co. v. Hodge, supra, it was held in respect to the tenure of the president of the corporation that "a proved condition or status is presumed to have continued in the absence of proof to the contrary".
Similar holdings are made in respect to the marriage status in the Cargile case, supra, and similar holdings are made in respect to a stockholder in a corporation in Bank v. Trust Co., supra, and Nelson v. Jones, supra.
In the Cargile case, supra, the rule is stated in a concise and succinct way as follows:
"When a particular status exists, the law will presume its continuance, and when it is asserted that it has been changed, some evidence of that fact must be produced."
Supplementing this well settled presumption of law we have the sworn admission of defendant embodied in the following question and answer, viz:
Q. You don't know of any other officer or person who ever acted as an officer or member of the board of directors other than the three, do you? A....
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