Gamer Co. v. Gamage

• Decision Date: 19 April 1922
• Docket Number: (No. 2536.)
• Citation: 241 S.W. 736
• Parties: GAMER CO. et al. v. GAMAGE.
• Court: Texas Court of Appeals

241 S.W. 736

GAMER CO. et al. v. GAMAGE.

(No. 2536.)

Court of Civil Appeals of Texas. Texarkana.

April 19, 1922.

Rehearing Denied May 4, 1922.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Action by Henry C. Gamage against the Gamer Company and others, in which Charles Gamer was made a party defendant. From a judgment against the Company and Charles Gamer, they appeal. Appeal of Gamer Company dismissed and judgment against Charles Gamer affirmed.

The Gamer Company, a corporation under the laws of Texas, employed appellee to operate a machine it used for cutting leather washers. January 21, 1909, which was only a few days after he was placed in charge of the machine, appellee had three fingers of his left hand cut off by it. Claiming the injury was due to negligence on the part of the Gamer Company in permitting the machine to be in a defective condition and in failing to warn him of the danger he incurred in using it, appellee on February 15, 1909, commenced this suit for damages against said company. He recovered a judgment, which was reversed by the Court of Civil Appeals in 1912. 147 S. W. 721. On another trial appellee again recovered a judgment against said company. This judgment was reversed by the Court of Civil Appeals in 1914, on the ground that the testimony was not sufficient to support the finding that the company was guilty of negligence in permitting the machine to be in a defective condition. 162 S. W. 980. A writ of error having been granted, the Commission of Appeals reached a conclusion contrary to that reached by the Court of Civil Appeals and, reversing its judgment, affirmed that of the trial court. 209 S. W. 389. Afterward, however, the Commission of Appeals set aside its judgment affirming the judgment of the trial court, and, because of error in the charge to the jury, in 1919 remanded the case to the court below for a new trial. 213 S. W. 930. This appeal is from that trial, which resulted in a judgment (rendered December 18, 1920) in appellee's favor against said company and against appellant Charles Gamer, who was made a party defendant by an amended petition filed by appellee November 17, 1920, following a suggestion by the attorney of the company as amicus curiæ made November 1, 1920, that it was legally dissolved in 1910. The grounds upon which said Charles Gamer was made a party were stated in said amended petition as follows:

"Plaintiff further states that on the said 28th day of April, 1910, the said the Gamer Company, defendant, was duly dissolved, and on that day Charles Gamer, who resides in Fort Worth, Tarrant county, Tex., was, and ever since its incorporation had been, its principal stockholder and president, George Mumert, who resides in Fort Worth, Tarrant county, Tex., was a director and secretary thereof, and J. M. Bird was a director and acting treasurer, and all of whom, by the act of dissolution, became trustees of all its assets and properties, and liable for its debts and liabilities; that on the day of its dissolution it had and owned corporate assets, consisting of real and personal property, machinery, tools, and implements and choses in action of the value of, to wit, $150,000, and owed no debts; that the plaintiff's suit was then pending against the said Gamer Company, and it had answered therein, and on December 15, 1912, upon issues fully formed, both plaintiff and defendant the Gamer Company went to trial before a jury in this honorable court at the instance and under the direction of Charles Gamer, the president and trustee, who then and there had employed counsel to defend said cause and who did then and there continue defense of said cause, and continued the employment of counsel, to wit, Lassiter, Harrison & Rowland, and by defending said cause in the name of the corporation as provided he should do by statute made himself party defendant thereto, and party defendant to all of the issues involved therein, acting under the style and corporate name of the Gamer Company, and continued the defense of said action as trustee in said corporate name in this honorable court and in the Court of Civil Appeals in Fort Worth and Amarillo, and in the Supreme Court of Texas by his said attorneys, who represented him, but in the name of the Gamer Company, even down to November 1, 1920, when his attorneys filed a second amended original answer herein in the name of the said corporation `the Gamer Company,' under and in which name he had defended said suit through all of the courts of the state ever since the dissolution of said corporation, and for 10 years while the same was pending in the appellate and Supreme Courts of the state, and all the time fraudulently concealing the fact of a dissolution from plaintiff and his attorney, and by reason of which he became a party defendant to this suit ever since the date of said trial, December 21, 1910.

"That by said dissolution of said corporation the said Charles Gamer, being president thereof and owning, to wit, $92,000 of its $100,000 capital stock, and by taking over all of its assets to his own use and benefit, became in law and equity its trustee, and he the said Gamer held the said property and assets in trust for the creditors and claim holders against the said corporation, and for their benefit as their claims and interest might appear and be established, and especially for the benefit of the plaintiff in the matter of his claim for damages for the personal injury sustained by him while in the employment of said corporation, as sued for herein; and neither the said Charles Gamer, the said Mumert, nor the said Bird has ever disavowed or repudiated said trust with notice to plaintiff, and by reason of the premises the said Charles Gamer, George Mumert, and J. M. Bird became liable as such trustees, and said assets in their hands became burdened and incumbered with a lien to secure and satisfy plaintiff's claim when established by the judgment and decree of this honorable court; and, if it should be found by this honorable court that they or either of them have received said corporate assets or any part of them, and have disposed of them or converted them to their own use, or any part of them, then such trustee so appropriating the same or any part thereof is liable personally for the claim of plaintiff when so established by the judgment of this court to the amount or value of the assets of said corporation so received by him and used or appropriated to his own use, and of this he puts himself upon the county."

In his answer Charles Gamer excepted to appellee's said petition on the ground that it appeared from the allegations therein that if appellee ever had a cause of action against him, it was barred by the statute of limitations, and in a plea set up said statute as a defense against the recovery sought against him; and he adopted as his own allegations in an answer filed by the Gamer Company November 1, 1920, in which it denied that the cutting machine was defective as charged by appellee, denied that it owed appellee a duty to warn him of danger in using the machine, and alleged that appellee was guilty of contributory negligence as specified and assumed the risk of danger he incurred in operating the machine.

In a supplemental petition appellee pleaded as follows in avoidance of the bar of the statute of limitations set up by appellant Charles Gamer:

"Plaintiff further says that defendant Charles Gamer ought not to be heard to plead the statutes of limitation nor any of them against the claim of plaintiff against him, because he says that immediately after the dissolution of the Gamer Company, he, being president and trustee thereof, to wit, on the 15th day of December, 1912, appeared in this honorable court by his attorneys, Lassiter, Harrison & Rowland, and defended this case, and plaintiff on said trial recovered a judgment of $4,000 against the Gamer Company, and by his direction or assent he caused his said attorneys to file a supersedeas bond and appealed said cause, and ever since that date has been a party to the controversy resisting plaintiff's suit, and fraudulently concealed the dissolution of said corporation from plaintiff, and for ...