Lingar v. Harlan Fuel Co.

• Decision Date: 29 September 1944
• Citation: 182 S.W.2d 657,298 Ky. 216
• Parties: LINGAR v. HARLAN FUEL CO. et al.
• Court: Kentucky Court of Appeals

182 S.W.2d 657

298 Ky. 216

LINGAR v. HARLAN FUEL CO. et al.

Court of Appeals of Kentucky

September 29, 1944

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Personal injury action by White Lingar against Harlan Fuel Company and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Golden & Lay, of Pineville, for appellant.

James R. Sampson, of Harlan, for appellees.

TILFORD Justice.

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 that same had been changed or that the corporation had been dissolved, or a partnership formed and he says that he files herewith and makes part hereof, the same as if copied herein, one of the pay slips, under the name of the Harlan Fuel Company, issued to him for wages, after the alleged dissolution of the said corporation.

'He states that he was not discharged by the corporation and he did not quit his work as an employee of said corporation, and he was not employed by any employment by the defendant partnership or the individuals, and that his employment continued both before and after the alleged dissolution of the corporation, upon the same status, and he believed at all times that he was working for the same employer both before and after the alleged dissolution, and he never received any actual notice or otherwise, that any change had been made in the employment, or the name of his employers, but that he was led to believe and did believe, after the alleged change,

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