Jones v. Francis

• Citation: 70 Wash. 676,127 P. 307
• Parties: JONES v. FRANCIS et al.
• Decision Date: 02 November 1912
• Court: United States State Supreme Court of Washington

127 P. 307

70 Wash. 676

JONES v. FRANCIS et al.

Supreme Court of Washington

November 2, 1912

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by Lloyd Jones against T. P. Francis and others, as trustees of the Chehalis River Lumber & Shingle Company, and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Dysart & Ellsbury and C. D. Cunningham, all of Centralia, and Forney & Ponder, of Chehalis, for appellants.

Gus L Thacker, of Chehalis, and Hayden & Langhorne, of Tacoma, for respondent.

GOSE J.

This is an action to recover damages for personal injuries sustained by an employé. The case was tried to the court, and a judgment for $5,000 was entered against all the defendants. This appeal followed.

The court found and the evidence shows that between July 17 1900, and February 23, 1910, the Chehalis River Lumber Company, hereafter called the old corporation, was a Washington corporation organized for the purpose of manufacturing timber products and engaged in the operation of a shingle mill; that on the date last stated it had assets exceeding $100,000 in value; that the appellants Francis and the Davies were the trustees and only stockholders; that Francis was its president and manager; that for some years prior to the date last stated it had failed to pay its annual license fee to the state; that on that date the Secretary of State dissolved it and caused its name to be stricken from his records; that it had no actual notice thereof; that thereafter and until January 28, 1911, it continued to exercise its corporate powers and privileges, employed many persons to labor in its mill, and paid them with its check drawn by its manager in its corporate name; that on and prior to July 26, 1910, the respondent was employed in its mill, and that he had no notice of its dissolution; that on the date last stated he was injured while in the performance of his work as a deck hand, in an unguarded bolter saw which could have been reasonably and practicably safeguarded; that on September 26th he caused a written notice of the time, place, and cause of the accident to be served upon the appellant Francis, who was then acting as its president and manager, and had active charge of its business in the operation of its mill. The court further found that in January, 1911, the appellants Francis and the Davies became aware of the dissolution of the corporation by the Secretary of State; that they then, in an ex parte proceeding, procured an order to be entered in the superior court of Lewis county, directing them as trustees of the corporation to transfer to themselves all the property and assets of the corporation, and that they made the conveyance as directed by the order; that they then as individuals organized the appellant corporation, the Chehalis River Lumber and Shingle Company, hereafter called the new corporation, and conveyed such assets and property to it, without consideration, except that it issued to them as individuals its shares of its capital stock in the ratio of their former respective interests in the old corporation, and that the new corporation did not acquire any other assets or property; that the objects of both corporations are identical; that the latter was only a continuation of the former; and that it assumed all its debts and liabilities and all the debts and liabilities that had accrued during the period of its dissolution. There was a further finding that the respondent had no notice of the dissolution of the old corporation until January 30, 1911, and more than six months after he sustained his injuries.

The first question urged by the appellants is that the respondent was guilty or contributory negligence. The respondent was engaged in drawing a heavy, water-soaked shingle block from the drag saw to the bolter saw, with his back to the latter, when the picaroon which he was using for that purpose slipped or drew out of the block, causing him to fall against the bolter saw, with the result that his right hand was cut off above the wrist. He testified that he did not know what caused it to draw out of the block. These facts do not show contributory negligence.

The purpose of the Factory Act is to require safeguards to be provided in factories, mills, and workshops where machinery is used with which the employés are liable to come in contact, where it is practicable to do so with due regard to the ordinary use of such machinery, to the end that the dangers incident to the employment may be eliminated so far as a compliance with the terms of the statute may accomplish that object. In short, its object is to protect the workman from the dangers incident to his employment which are not the result of some negligent act on his part.

Timely notice in writing of the time, place, and cause of the injury was given to the old corporation by serving it upon the appellant Francis, its president, manager, and trustee. The notice states that the injury was sustained by reason of its failure to guard the bolter saw. The notice stated, further that the injury was suffered while in its employ at a mill operated by it near Centralia. The appellant contends that this was not notice to the 'employer,' as required by Factory Act (Laws 1905, p. 169) § 9. This contention is made upon the theory that, when the Secretary of State has entered upon his records a notation that a corporation is dissolved, it ceases to have a corporate existence, and that, under the provisions of section...