Lingar v. Harlan Fuel Co.

• Decision Date: 29 September 1944
• Citation: 298 Ky. 216
• Parties: Lingar v. Harlan Fuel Co. et al.
• Court: United States State Supreme Court — District of Kentucky

Page 216

298 Ky. 216

Lingar v. Harlan Fuel Co. et al.

Court of Appeals of Kentucky.

September 29, 1944.

1. Estoppel. — One may not omit to avail himself of readily accessible sources of information concerning particular facts, and thereafter plead as an estoppel the silence of another who has been guilty of no act calculated to induce the party claiming ignorance to refrain from investigating.

2. Constitutional Law. — The broadening of exceptions to the statute of limitations is a legislative and not a judicial function.

3. Estoppel. — The doctrine of estoppel in pais must be applied strictly and should not be enforced unless substantiated in every particular.

4. Limitation of Actions. — Where statute providing manner for dissolution of corporation was strictly complied with, business was continued under the same name by partnership formed by stockholders, and employee who had no actual notice of dissolution of corporation brought action for injuries sustained after dissolution of corporation against the nonexistent corporation within a year after accrual of the cause of action, the partnership, when sued after year had expired, was not estopped from pleading the one-year statute of limitations. KRS 413.140.

5. Limitation of Actions. — Where statute providing manner for dissolution of corporation was strictly complied with, business was continued under same name by partnership formed by stockholders, and employee who had no actual notice of dissolution of corporation sustained injuries after dissolution of corporation, assertion of cause of action against a nonexistent corporation within a year after accrual thereof did not, in absence of estoppel, prevent the partnership when sued after the year had expired, from pleading the one-year statute of limitations. KRS 413.140.

Appeal from Harlan Circuit Court.

Golden & Lay for appellant.

James R. Sampson for appellees.

Before James S. Forester, Judge.

OPINION OF THE COURT BY JUDGE TILFORD.

Affirming.

On March 22, 1943, appellant sued the Harlan Fuel Company, a corporation to recover damages for personal injuries allegedly sustained while in its employ on March 23, 1942. A summons was issued against the corporation and delivered to one E. Guthrie, a former officer or employee of the corporation, who, on the second day of the ensuing May term, filed his affidavit disclosing that on December 29, 1941, the corporation had been dissolved in the manner prescribed by KRS 271.300; that all steps required by that Statute had been taken, including the publication of newspaper advertisements; that the property of the corporation, by deed duly recorded in the county court clerk's office, had been conveyed to a partnership formed by the stockholders of the corporation to do business under the same name, and that the partnership, on December 29, 1941, had executed and filed in the county court clerk's office a statement to that effect as required by KRS 365.010.

Reciting the facts pertaining to the dissolution of the corporation, and stating that he was ignorant of them when he instituted the action, appellant, on May 15, 1943, filed an amended petition making the partnership and its individual members parties defendant, and seeking to hold them liable as successors to the corporation. The partners, in their answer filed at the succeeding August term, pleaded among other defenses the one year Statute of Limitations (KRS 413.140) which appellant in turn sought to avoid by reply. The Court sustained appellees' demurrer to the reply as amended, and upon appellant declining to plead further, dismissed his petition. Since the sole question presented on this appeal is whether appellees were estopped by the facts alleged in the amended reply from pleading limitation in bar of appellant's action, we quote the amended reply as follows:

"Comes the plaintiff and for his amended reply and plea in abatement, says that subsequent to the time that it is alleged and stated that the Harlan Fuel Company dissolved itself as a corporation and the defendants herein formed a partnership, these defendants continued to run and operate the mine as stated in the Amended Petition herein, under and by the name of Harlan Fuel Company, the same name adopted and used by the corporate defendant, and that it did issue to this plaintiff, subsequent to said dissolution, and to other working men, pay slips twice a month for their wages on printed forms showing the name of their employer to be Harlan Fuel Company, without stating or disclosing...