Jones v. Et At.
| Decision Date | 12 June 1934 |
| Docket Number | (CC 501) |
| Parties | Clara Jones, Admx., etc. v. P. G. Young et at. |
| Court | West Virginia Supreme Court |
Corporations
Stockholders, continuing the business of a corporation after forfeiture of its charter for non-payment of license tax under Code 1931, 11-12-77, without contributing to the State Compensation Fund, are liable for injury of an employee due to the negligence of the management.
Case Certified from Circuit Court, Fayette County.
Action by Clara Jones, administratrix of the estate of her husband, Howard Jones, deceased, against P. G. Young and others. A demurrer to defendants' special plea was sustained and the ruling certified for review.
Affirmed.
Love & Love, for plaintiff.
Dillon, Mohan & White, for defendants.
This certificate involves the ruling of the trial court upon demurrer to a special plea.
The action was brought by Clara Jones, administratrix of the estate of her husband, Howard Jones, deceased, against P. G. Young, C. R. Young, Oscar Bunch, C. R. Summerfield, C. W. Horrocks and C. R. Drumheller, as partners doing business under the firm name of Thurmond-New River Coal Company, to recover for the death of decedent, June 9, 1933, who was instantly killed by coming in contact with an electrically charged wire in the course of his employment as a servant for defendants. The declaration charges that death was due to the negligence of defendants and that they were not subscribers to the state compensation fund.
Defendants, by special plea, deny that they are, or have been, partners doing business under the firm name of Thurmond-New River Coal Company, and substantially aver that the company is a domestic corporation under a charter issued by the secretary of state August 25, 1931; that it is, and since its organization has been, engaged in the business of mining, shipping and selling coal; that failing to pay the required license tax for the fiscal year beginning July 1, 1932, its charter rights and franchise were forfeited and annulled and a receiver appointed to wind up its affairs by decree of February 3, 1933, in a suit by the state for the purpose under Code 1931, 11-12-77; that the receiver never took charge of the physical assets of the company nor exercised any control over its affairs; that the management and conduct of the business continued as usual; that the license tax and costs incident to the forfeiture having been paid, another decree was entered in the cause June 21, 1933, setting aside the previous order, discharging the receiver, and restoring the corporation to all its former charter rights and privileges. A demurrer to the plea was sustained.
Defendants, relying upon Miller v. Coal Company, 31 W. Va. 836, 8 S. E. 600, assert that the demurrer to the special plea should have been overruled. In the Miller case, the stockholders of a mining corporation, pursuant to an agreement among themselves, continued the business in the corporate name after the expiration of its charter. While so operating, an employee was killed in a mine explosion due to the alleged negligence of the management. The action against the corporation was sustained, not with st a n d i n g the expiration of its charter, upon the theory that it was still a de facto body. This holding was based upon section 59, chapter 53, Code 1868 (), providing that upon the expiration or dissolution of a corporation, its property and assets shall, under the order and direction of the board of directors then in office, or receiver appointed by the circuit court, be subject to the payment of it's liabilities, and the surplus, if any, be distributed among its stockholders. It further provided that "suits may be brought, continued, or defended, the property, real or personal, of the corporation be conveyed or transferred under the common seal or otherwise, and all lawful...
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...L. Ed. 541; Trower v. Stonebraker-Zea Live Stock Co., 17 Fed. Sup. 687; Ewald Iron Co. v. Commonwealth, 140 Ky. 692, 131 S.W. 774; Jones v. Young, 174 S.E. 885; Poritsky v. Wachtel, 27 N.Y. Supp. (2d) 316; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W. (2d) 1162; Woodward Hardware Co.......
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