Ferguson & Wheeler Land, Lumber & Handle Company v. Good

• Decision Date: 30 March 1914
• Citation: 165 S.W. 628,112 Ark. 260
• Parties: FERGUSON & WHEELER LAND, LUMBER & HANDLE COMPANY v. GOOD
• Court: Arkansas Supreme Court

165 S.W. 628

112 Ark. 260

FERGUSON & WHEELER LAND, LUMBER & HANDLE COMPANY v. GOOD

Supreme Court of Arkansas

March 30, 1914

Appeal from Clay Circuit Court, Western District; W. J. Driver Judge; affirmed.

Judgment affirmed.

Basil Baker and Horace Sloan, for appellant.

1. Testimony as to the possibilities of injury to the other eye occasioned by an inflammation of the injured eye, was improperly admitted, because such evidence was merely speculative. 76 N.W. 88; 96 N.Y. 305; 115 N.Y. 61, 21 N.E 726, 12 Am. St. Rep. 775; 200 N.Y. 393, 94 N.E. 184.

2. The court's instruction No. 4 was erroneous because it was not specific, and because no test or rule is laid down for the guidance of the jury as to what constitutes one corporation as a mere reorganization or continuation of another. The mere fact that the formation of a new corporation may involve the reorganization of an old corporation does not in itself mean that the new corporation assumes and becomes responsible for the liabilities of the old corporation. That may or may not be true, according to the circumstances. 153 S.W. 1107-1109. The intention of the incorporators is the controlling factor. 21 N.J.L. 317-324; 5 Thompson on Corporations, § 5983.

3. The court's fifth instruction is erroneous because the undisputed evidence shows that appellant did not expressly assume either the debts or the tort liabilities of the old corporation.

The instruction submitting the question of implied liability is improper, because under the evidence there is no implied liability. 154 N.Y. 667, 49 N.E. 151.

4. The ninth instruction is erroneous, because (1) loss of time was not pleaded or proven. 79 Mo.App. 257-259. (2) It is abstract with reference to diminution of earning power. 58 Ark 198-205; 69 Ark. 380; 101 Ark. 548-553; 97 Ark. 560-563; 26 Ark. 513-517; 22 So. 135, 115 Ala. 389. (3) It errs in permitting the jury to consider the age of the plaintiff and whether or not he was single or married, in determining what amount should be allowed for disfigurement of person. His age has no bearing on the question of disfigurement, nor does his condition in life as to being married or single affect that question.

G. B. Oliver, for appellee.

1. There was no error in permitting the doctors, Black and McKinney, to answer a hypothetical question as to the likelihood of danger to plaintiff's uninjured eye. 17 Cyc. 252 (2); 94 N.E. 184; 13 N.Y.S. 305; 69 P. 600; 15 S.W. 469; 55 F. 949-953.

2. Appellee sought to hold appellant liable for the act of the Western Handle Company because (1) it was a reorganization or continuation of the old company; (2) there was an express promise to pay the liabilities of the old company, and (3) an implied promise to pay such liabilities. The court's instructions 4, 5 and 6 submit these theories to the jury, and are right. 153 S.W. 1107-1110.

3. Instruction 9 is correct. Evidence was admitted without objection as to how much time appellee lost and what he was getting per day. The complaint will be treated as amended in this respect.

As to his age and condition as to being married or single, it is proper, "in estimating the damages to consider the age and condition in life of the party injured." 13 Cyc. 142-b; 18 Fed. Cas. No. 10572; 3 Sawy. 397; 46 N.W. 115, 20 Am. St. Rep. 106-114, note; 104 Ark. 528-537.

WOOD, J. SMITH, J., not participating.

OPINION

WOOD, J.

This is a suit by appellee against the Western Handle Company and against appellant. The complaint alleged that the Western Handle Company was engaged in the manufacture of handles; that appellee was employed to wait upon Phillips, who was also employed by the Western Handle Company as grinder, that it was the duty of appellee to wait upon Phillips by filling his rack with unground handles and moving the same after they were ground. He alleged that Phillips carelessly permitted a handle to slip from the clutch and carelessly permitted the nut or other object to strike the revolving sanded belt, causing the sand to be knocked from the belt, and that the sand entered plaintiff's eye while he was engaged in his work; that through this negligence appellee became totally blind in said eye and has suffered intense pain, and still suffered intense pain in the injured eye, and that by reason of the condition of this eye the sight of the other eye was endangered, to his damage in the sum of $ 5,000. The appellee set up that the appellant was the successor to the Western Handle Company and had assumed to pay all its debts and liabilities, including the liability to the appellee; that the appellant was but a reorganization and continuation of the Western Handle Company, the latter company having been dissolved, and that appellant was liable to the appellee in the amount of the damages claimed.

The appellant admitted that it was the successor to all the business of the Western Handle Company, but denied all the material allegations of the complaint as to the injury of the appellee, and denied any assumption on its part of the debts of the Western Handle Company, including the alleged damages to appellee, and denied that there was any agreement upon its part to pay any of the debts or liabilities of the Western Handle Company. It set up that the appellant was a new and distinct corporation from the Western Handle Company, not composed of the same stockholders, nor organized with the same powers, nor for the same purposes, and therefore was not liable to the appellee for his alleged claim. The appellant also set up the defenses of assumed risk and contributory negligence.

On a former appeal of this case to this court (see 153 S.W. 1107, 107 Ark. 118), in an opinion rendered February 17, 1913, we held that there was testimony to warrant a finding "that it was intended for the new corporation (appellant) to take the property of the old (Western Handle Company) and discharge all of the latter's obligations. The jury could have inferred as much from the testimony, and the court erred in taking that question from the jury."

On the former appeal we also held that "there was enough evidence to go to the jury on the question of the negligence of Phillips in permitting the bolt or tap to come in contact with the belt and that this caused the sand to fly from the belt in sufficient quantities to injure plaintiff's eye."

The court submitted the issue as to whether appellant was a continuation and reorganization of the Western Handle Company as follows: "If you find from a preponderance of the evidence that the defendant Ferguson & Wheeler Land, Lumber & Handle Company is only a reorganization or continuation of the Western Handle Company, then you are instructed that the Ferguson & Wheeler Land, Lumber & Handle Company, is liable in this case if the Western Handle Company is liable."

Under the doctrine announced in our former opinion, this instruction was free from prejudicial error and the verdict of the jury is conclusive of that issue.

The court also instructed the jury, in effect, that if they found that the appellant assumed to pay the debts and liabilities of the Western Handle Company that appellant would be liable if the Western Handle Company was liable. The appellant here does not challenge the sufficiency of the evidence to sustain the verdict as to the liability of the Western Handle Company, and no exceptions were saved to the giving of the instruction.

The court also submitted to the jury the question as to whether or not the appellant had expressly agreed to pay the debts of the Western Handle Company, and also as to whether or not appellant, in its organization, had assumed the liability of such company to the appellee. The testimony on this issue is the same as it was on the former appeal and these issues were properly submitted to the jury to determine, and are concluded by the verdict, under the law as declared by the decision on the former appeal which is the law of the case.

Appellant next contends that the court erred in granting appellee's prayer for instruction No. 9, which, in substance, told the jury that if they found for the appellee they should assess his damages at such sum as would reasonably compensate him for the loss of time, for pain and suffering that he had endured and would likely endure, for any diminution in its earning power and for the disfigurement of his person, and told the jury that in determining the amount to allow on account of the disfigurement of his person they should take into consideration his age, the extent of the disfigurement and whether or not he was married or single.

The specific objections to the instruction were "the age of plaintiff is not an element of damages, whether or not he is married or single is not an element of...